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Joel Stewart on PERM Labor Certification

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  1. Some Apples Fall Far from the Tree

    by , 05-03-2017 at 11:24 AM (Joel Stewart on PERM Labor Certification)
    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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