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Bloggings On PERM Labor Certification

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

March 23, 2009

BALCA Trends: Back to the Future

When the PERM Rule became effective in March 2005, the rules for labor certification changed drastically. The idea of the makeover was to create an electronic process (hence, Process Electronic Review Management called PERM) that would enable DOL to issue decisions electronically in record time. Indeed, the first few cases were subjected to a computer check to see if all the boxes were filled in, and some cases were decided in one day.

DOL also announced in the rule itself that there would be Zero tolerance for errors, including typographical mistakes, and that the doctrine of harmless error, which was permitted by the pre-PERM regulations, would no longer apply. DOL felt that if the employer could fill out the form one time in such a way that additional review would not be necessary, the application could be approved or denied instantaneously.

Prior to the introduction of the PERM rule, the DOL had engaged in a tug of war for each application. It started with the filing at the local SWA. Those agencies would make comments and determinations which required employers to respond within 45 days. After the SWA completed its work (sometimes taking five years or more), the applications would then be reviewed in the federal office by the Certifying Officer who was required to issue a Notice of Findings to the Employer if any additional defects were found.

Zero tolerance had a plus side -- applications could be approved or denied very quickly -- a distinct advantage to everyone. However, the PERM forms and the electronic system had many bugs and deficiencies ranging from inconsistencies on the computerized forms to inadequate instructions for users.

The first BALCA decision upheld the strict nature of the rule, stating that a Zero tolerance policy was not per se illegal or improper, however, BALCA advised that if Zero tolerance would be applied, the forms and instructions would have to be in optimal condition that would adequately warn and assist users to avoid the danger of an unexpected denial based on some kind of electronic rather than substantive error.

The PERM form has since been redesigned and should be available soon, although the proposed date has been extended since it was first published in the federal register.

One such error involves the placement of the Magic Language on the form. The Employer must state that it will accept any suitable combination of education, experience or training if the alien is working for the employer and qualifies for the position because of alternate requirements on the form. However, since there is no mention of the Magic Language on the form, or any instruction to that effect, the new form contains a special box to address that issue.

With the passing of time, BALCA has been forced to permit remands and reconsideration of issues that are prohibited by the regulations in order to prevent unfair results. The original BALCA point of view was enunciated in the Health America Decision in 2006. It states that Zero policy is OK, but only if fairly administered.

Now with the new changes on the PERM form, employers have more leeway to request reconsideration of non-substantive errors, if they were the fault of DOL. Determining the fault is not easy. One could take the point of view that employers should be held responsible to know the PERM rule, even if each part of the rule is not placed on Form 9089 as a warning.

On the other hand, the Office of Management and Budgets has approved Form 9089 to take 1 1/4 hours to process, fill out and file. In that short time no employer could be expected to learn the PERM rule. The most that could be expected is that Employers carefully read the instructions on the form.

These ambiguities will be mostly reviewed by the introduction of the new PERM Form 9089, but there will undoubtedly be continued doubt about some questions and issues that will plague PERM stakeholders for some time.

Although PERM is the rule of the future, and harmless error is specifically prohibited in the rule, BALCA has gone back to the future in its review of zero tolerance issues.