Under the PERM Rule, employers are required to 'go

forward' with carefully drafted applications, and, like most

agency laws, the Rule was created and exists solely by authority of

the Administrative Procedure Act (APA). In this article we will

analyze two considerations: How and when the APA requires PERM

employers to go forward with requests for alien labor certification

while providing opportunities for consideration of rebuttals with

documentary evidence.

The familiar, statutory pattern to provide Due Process is

threefold: (1) applications are submitted to agencies, (2) agencies

issue decisions, and (3) opportunities to provide rebuttal evidence

are provided. However, there is a wide range of disparity which may

be expected depending on the type of government and personal

interests at issue.

The Travel Safety Administration is one example — where the

public interest to fly safely is greater than the individual's

right to fly — and the Department of Labor (DOL) is another, where

the mission to protect employment conditions of U.S. workers may

outweigh employers' needs for foreign workers. The right to

immigrate through offers of employment is a civil matter where Due

Process is limited by the need to protect the domestic

workforce.

The next important points in time are the recruitment process

and subsequent filing of results on Form 9089. Here employers must

create and maintain detailed records of all the recruitment steps

they take by preparing supporting documentation for every

contingency.

'Going forward' also means that great attention must be

paid to 100% accuracy on the Form 9089 to avoid even minute

ministerial and typographical errors that can prove fatal. While

some government agencies allow amendments and corrections after the

filing date, but before issuing determinations, PERM does not.

Consider the very first BALCA case, Health America,

2006-PER-0001 (BALCA July 18, 2006), where an employer properly

advertised in two Sunday newspapers but reported the 7th and the

15th, instead of the 7th and the 14th, so that the wrong digit

indicated the date of the second Sunday ad on the

form.  

With this simple typo, the second ad was seemingly placed not 7

but 8 days after the first. This error resulted in a denial without

providing the employer an opportunity for rebuttal to prove that

the ads had been placed correctly on two separate Sundays. 

The denial seemed unreasonable to many stakeholders — so much so,

that, acting on advice from the judges, DOL went on to improve Form

9089 with pull-down menus that automatically dissuade employers

from typing the wrong date.

When audits do occur, in about 10% of cases, employers must go

forward with their responses promptly. Audits often state

conclusions, however, that are ambiguous or over-reaching, leaving

employers no opportunity to reach out for clarification. Only after

denials are issued may employers file Requests for Reconsideration

but generally without the opportunity to introduce new

evidence.

Upon denial of reconsideration, the only recourse is to file

Requests for Review to BALCA, but, here again, PERM does not permit

employers to introduce new evidence for consideration by the

administrative law judges. Even new legal arguments are prohibited

if they have not been previously set forth in the record.

A new feature was introduced on May 20, 2020, when DOL published

a rule authorizing the Secretary of Labor to issue final decisions

sua sponte during or after BALCA. As of this date, no such

decisions have been issued, however, worthy of note is the fact

that the Secretary will only issue decisions based on record files,

because there is no provision for employers to reopen to provide

the Secretary with additional information or documentation.

In summary, the PERM Rule is weighted in favor of U.S. workers

whom the agency must protect, but it does so at the cost of minimal

Due Process for employers. A new Form 9089 has been proposed and

not yet approved by DOL which contains additional fields for

employers to fill in during the initial filing of the case, but

still affords no opportunity to upload or attach additional

documentary evidence. Without a level playing field for PERM, great

care must be taken to always go forward by establishing the most

comprehensive record file possible.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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