The US Department of Labor recently issued two denials of PERM

certification to Apple, the first US company with a market value

above $700 billion.

In one interesting case upholding denial of PERM approval, the

Board of Alien Labor Certification (BALCA) cited important

principles relating to typographical errors on the application form

9089 filed with the labor department by employers. In reporting the

details of an alien worker's experience gained over a period of

72 months with different employers, mostly abroad, the employer

mistakenly wrote only 69 months of qualifying experience. See

Apple, Inc., 2012-PER-03515 (April 24, 2017).

The PERM process was created at the end of 2004 to promote

expedited processing of applications which had previously been

backlogged as much as seven years. Some delays had been caused by

lethargic bureaucratic procedures, while others had to do with

corrections, modifications and supplements to existing record

files. The Department of Labor asserted that the new PERM process

would use a zero-tolerance policy for any kind of errors, thus

eliminating most reasons for long delays.

After the PERM process began, the very first case to be appealed

was HealthAmerica, in which an Employer had made a simple error on

the form by typing the wrong date of publication for a newspaper

advertisement. The regulations required two Sunday ads, but the

employer (who had indeed placed two Sunday ads as required) put the

date of the second ad eight days after the first date.

The mistake seemed to be so insignificant that the employer was

joined by the American Immigration Lawyers Association, which filed

an amicus brief to appeal the decision. They argued that

if the DOL applies a strict, zero-tolerance policy in its

determinations, the electronic on-line form provided to the public

should be user friendly to warn of data input errors. BALCA agreed

and held that denial of certification for a minor, non-substantive

error could not stand.

In 2008, however, DOL overcame BALCA's lenient policy

towards typos by issuing regulations that specifically prohibit any

kind of correction to a PERM application after it has been

filed.  Additionally, the new regulations prevent employers

from providing such documentation because “typographical or

similar errors are not immaterial if they cause an application to

be denied based on regulatory requirements.” DOL believed that

the correction of even the smallest typographical errors would be a

“significant and costly resource drain on the PERM case

management system and staff.”

In another case, Apple, Inc., 2012-PER-03516,

(April 24, 2017) decided the same day, BALCA upheld denial

of certification because the employer had not matched the

educational requirement (a Master's Degree in Business,

Operations, Supply Chain, or a related field of study and

thirty-six months of experience) with the statement of the foreign

worker's experience (a Master's degree in Mechanical

Engineering).

The employer argued that the coursework of the worker in

graduate school, also listed on the form, required the same amount

of time, coursework and specialized education as a Master's

degree in Business Operations, or Supply Chain, but the Board of

Alien Labor Certifications disagreed, holding that despite the fact

that the worker had equivalent coursework, “there is a

difference in being exposed to a few…related courses during

one's graduate-level matriculation versus being immersed in a

full course load of business classes (or a Master's level

business program) while in graduate school.”

Denial of the first Apple case was based on a clear

typographical error, while the second case was based on a subtle

interpretation of the foreign worker's educational

qualifications of coursework in a field of study instead of a

formal college level degree in that field of study.

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guide to the subject matter. Specialist advice should be sought

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