In a recent BALCA case, the application was denied because the application was filed by mail, and the alien had not signed the application.
On appeal, the Employer argued that the application was not signed, because the alien was located in Kosovo, in a place where communications are difficult and mail delivery is uncertain. Obtaining a signature from Kosovo does indeed present a great challenge.
This is a problem that many practitioners have faced: How to obtain signatures when the signatory is overseas, outside the US, where mail delivery is slow and uncertain.
Despite federal statutes authorizing electronic signatures by fax, in some instances agencies continue to require original signatures on documents. The agency preoccupation with original signatures may be understandable, where experience has taught that some applications have been fraudulently filed without the knowledge of the signatory! However, these cases normally arise in the context of the Employer's signature, not the alien's.
The BALCA case is Inkad LlC / Cafe Italiano, 2010-PER 256 (Jan. 27, 2011). The Employer simply filed the application by sending it to DOL by mail without the alien's signature, arguing that the alien worker's signature could not be obtained, because he did not have an address in the usual sense because of his village's rural location.
One wonders why the employer, in this case, did not file the application electronically. No signature is required for electronically filed applications, at least until after receiving an approval. Had the application been approved, the Employer could have made a superhuman effort to obtain the signature. Although this might have been very complicated, time consuming and expensive, the Employer could have sent the PERM approval page to the alien in Kosovo perhaps by courrier. It would have been worth the cost and the difficulty, because the PERM application had aready been approved prior to incurring this cost.
According to the BALCA panel, previous PERM cases have held that "failure of the preparer to sign Section M of the Form 9089 is not a mere technicality" (TLH Construction Corp, 2010-PER-688, Aug. 19, 2010), and the approved application could not be submitted with the I-140 Petition to the Department of Homeland Security without the signatures of the parties.
Despite this stern and authoritative language, one might argue that there is no need to have the alien's signature on Form 9089, because the alien's role in the certification process, since the advent of PERM in 2005, has been virtually eliminated, and the alien has been relegated to the position of mere beneficiary in the PERM process. The employer and the preparer, not the alien, are wholly responsible to prepare, process and file a PERM application, and the alien's signature has become unnecessary to the process. Only the Employer can register with DOL to file a PERM application, respond to an Audit, and request a Motion to Reconsider or Appeal a denial to BALCA.
The alien's signature "attests" to his or her qualifications to fill the occupation certified by DOL. While this is an important anti-fraud measure, it is nevertheless the responsibility of the Department of Homeland Security, not of DOL, to determine if the alien is qualified for the position. To prove qualifications, the alien's qualifications must be documented by diplomas, affidavits, certificates, licenses. A mere signature is not probative.
It seems that the custom of including the alien's signature on the application for alien certification was inherited from the pre-PERM process, where the Employer and the Alien applied for certification "together." In those days, the parties were considered as co-applicants, and the Employer had little superiority over the alien in the process. Arguments even developed over who owned a labor certification process or an approved labor certification, especially where the alien had paid the entire advertising and recruitment fee for certification, along with the fee for the representative or attorney.
Under PERM, the alien's role or proprietorship in the process is eliminated.The alien is not permitted to participate in the application process in any way, to pay for the cost of filing the application or the fee of the representative or attorney representing the employer, or to request reconsideration or appeal of a denied application.
Note that the family or employment based petitions filed with DHS (I-130, I-140, I-360, etc.) do not require the signature of the beneficiary. Where PERM is concerned, the alien is no longer considered an applicant or petitioner, but only a beneficiary of a process wholly controlled by others. As such, the alien signature requirement has become an unnecessary relic of the past.
In the instant case, the alien's signature ir "mark" if executed by an illiterate person on a complex US government form, carrying warnings and attestations understandable only to employees of the U.S. Department of Labor, signed in a small village in Kosovo, by a person who may not speak English, and where English is probably not spoken for miles around, would carry no weight in any court of law.
While the Board's decision, that an application unsigned cannot be approved without the alien's signature, follows the regulations, the real question here is whether the alien's signature is really required for the processing of the application or is merely a gratuitous act which has no effect on the processing of the application.