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Joel Stewart on PERM Labor Certification

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  1. BALCA Forgives Electronic Error

    by , 06-15-2017 at 10:54 AM (Joel Stewart on PERM Labor Certification)
    Due to a computer glitch, the last sentence of a job description on the electronic PERM form got cut off and disappeared from the Form. [1]

    When the C.O. audited the application and asked for a complete copy of the form, the employer tried to correct the deficiency by typing in the missing phrase.

    Not satisfied with the employer’s segmental approach, the Certifying Officer denied the application, saying that an electronic fowl-up could not be forgiven and, according to the regulations, employers cannot make corrections to PERM forms.

    The PERM regulation states that a substantial failure by the employer to provide documentation requested by the C.O. will result in the denial of a PERM application. The Board uses a two-part test[2] to assess the sufficiency of employer responses: (1) whether a C.O. reasonably requested the documentation, i.e., the documentation was readily, or at least reasonably available to the employer, and (2) whether the omission of this documentation is material enough to constitute a “substantial failure….to provide required documentation.”

    The Board agreed that the requirement to provide a signed copy of the form was reasonable and that the failure to provide a complete copy would normally constitute a substantial failure. However, the employer provided an affidavit stating that it had typed the entire sentence on the form and that, but for the glitch, the form would have been complete.

    The employer also pointed out that the missing language appeared elsewhere as in the prevailing wage request in part K of the PERM Form where the employer had written the foreign worker’s experience in cloned language.

    Since the failure to submit an original, completed form appeared to be an electronic error, the Board decided the omission was not material and ordered approval for the employer.


    [1]Spirent Communications, Inc., 3013-PER-2757, May 18, 2017

    [2]SAP America, Inc., 2010-PER-1250, April 18, 2013 (en banc); Accent-Media Productions, Inc., 2012-PER-712, September 23, 2015.

    Updated 06-15-2017 at 11:03 AM by JStewart

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