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A peculiarity of the alien labor certification program (known as PERM) is that the US Department of Labor has a policy of Zero Tolerance towards scrivener errors. No inaccuracies of any kind are permitted, and when errors do occur, no amendments may be made after the filing date – not even innocent typographical errors on the PERM forms can be corrected.
Soon after the new program began in March 2005, the Department of Labor denied a PERM application that contained a very simple error. An Employer had advertised a job opening in two Sunday newspapers (as required by law), but on the PERM form the Employer confused the publication dates and wrote them eight days apart instead of seven.
The alien labor certification program uses the acronym PERM for “Program Electronic Record Management.” The idea came out of a reengineering effort to reduce processing times for alien employment certification. Under PERM, employers could file applications electronically to be scanned by computers and not by human eyes.
Applications adhering to the PERM regulations (i.e., advertisements placed on the proper days and dates, strictly enforced processing times, notices of job opportunity properly posted, media and other recruitment conducted according to the regulations, and records maintained for possible audits) could be rewarded by prompt agency determinations, hopefully approvals, within a few days of filing.
However, the Department of Labor only approves perfect applications that have no electronically discernible errors, and any error of any kind results in a denial. It is important to note that there are essentially two kinds of errors: those that are substantive and affect the legal requirements and bona fides of the job search and clerical errors that do not relate back to the essential legal requirements but are merely typographical errors or omissions. Among jurists, the latter errors may be called “harmless” or “de minimis.”
Prior to the PERM Rule, harmless errors could be corrected by employer correspondence with the Department of Labor. This has the advantage of saving or preserving an application, but since the PERM Rule relies on electronic review of the forms, DOL computers do not easily distinguish between harmless errors and more serious errors that may invalidate the application.
An example of a significant error would be the failure of the employer to place two Sunday newspaper advertisements not on Sundays, but to mistakenly place them on a Sunday and a Monday, while an example of a harmless error would be the placement of two newspaper advertisements on two Sundays, but mistakenly indicating on the form that one was placed on a Sunday date and the other on a Monday.
There was a famous case called “HealthAmerica,” wherein the employer advertised a job opportunity in two Sunday newspapers as required, but typed the second publication date incorrectly with an eight-day interval between the two dates... The error on the form was harmless because the advertisements had been published on two Sundays.
The administrative law judges of the US Department of Labor chastised the government for denying the application, but despite the legal controversy of the moment, the issue of zero tolerance of harmless errors continues ten years after the introduction of the PERM Rule, and typographical errors, no matter how innocent and trivial, still serve as the bases of denials.
While many typos are, indeed, the employer’s fault, due to careless proofreading, some errors occur because of glitches in the DOL electronic on-line application program. When this happens, Employers may sometimes win approvals by filing requests for reconsideration of denial that point out the error was due to an electronic malfunction and not to human failure.
Another area of difficulty is that the instructions provided by the Department of Labor are sometimes confusing or even contradictory. There are several different types of instructions that Employers need to follow.
Some instructions are printed on the PERM form near the boxes provided for data input. Other instructions are published separately on the DOL website. Even the electronic on-line system has its own full set of instructions that attempt to explain how to work with pull-down menus, use of addenda when there is lack of space available for data input, and other purely electronic problems.
With all this, the most common errors result from ambiguous questions and inconsistencies in the process.
One was the need to include the phrase, “Employer will accept any suitable combination of education, training or experience,” commonly known as the “magic language.” Only after many denials were issued, the DOL finally gave guidance in the form of FAQ’s which explain that the language can be placed anywhere on the form, for example, in H-14 “Special Requirements.”
Another occurred when DOL routinely denied applications that did not include information about the foreign workers’ acquisition of licenses required to perform the job duties, even though there was and still is no official place on the form to place the information. The DOL has now clarified that these skills can be included in the summary of alien experience in Part K of form 9089.
The entire PERM Rule has been replete with complex deficiencies, although many of them have been resolved by the issuance of FAQ’s. These may include audit requests which are not specific or clearly stated; difficulty in locating important information to place on the forms, lack of detailed and specific instructions for advertisements in electronic journals and websites, uncertainty about the selection of newspapers of general circulation in which to place ads; criteria relating to selection of job search websites; procedures for use of employee referral programs; standards for minimum and alternate minimum requirements to perform job duties; prevailing wage determinations that are not available because DOL has not yet calculated wages for the occupation; and strict limitations on opportunities to request reconsideration and review of unfavorable decisions.
The policy of the Department of Labor is not sympathetic to difficulties that employers experience arising from technical difficulties in the application process. Instead, the agency has consistently held that employers who make errors on PERM applications should simply refile the applications with the “errors” corrected.
The problem with the recommendation to refile is that PERM applications must be completed and filed within 180 days of the beginning of the advertising and recruitment process. When an error occurs, and a denial is issued after the 180-day period, refiling is not possible without undergoing a brand new 180 day period of expensive advertising and recruitment.
The PERM Rule never contemplated lengthy delays. When the program began in 2005, the DOL had promised prompt determinations, and indeed, in initial months of the program, some applications were decided within two weeks or even on the same day. Nevertheless, processing times have grown and are currently unpredictable, sometimes taking up to a year or more if audits are issued. When the 180-day period has passed, a harmless error can necessitate a completely new application that creates an unreasonable and unfair burden on the Employer.
The best way to deal with the challenges of Zero Tolerance PERM processing is for employers to establish a multi-level internal review to confirm every detail on the PERM forms and to research each question and proper answer prior to filing with the DOL. Only very experienced personnel managers, administrative assistants, and attorneys should undertake the preparation, processing, and filing of PERM applications.
In the United States, federal agencies have broad discretionary power to create informal but legally binding standards for administrative matters. In the context of immigration, american employers and foreign workers must deal with at least three federal agencies: (1) U.S. Department of Labor OFLC (Office of Foreign Labor Certification) that administers the PERM labor certification program; (2) U.S. Citizenship and Immigration Services, the agency responsible to adjudicate I-140 Immigrant petitions; and (3) Department of State, which is responsible for the control and issuance of immigrant visas abroad.
Frequently cited is the famous Supreme Court decision Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), holding that courts should defer to agency interpretations of statutes unless the interpretations are unreasonable.
In essence, the Supreme Court recognized that because administrative agencies have special expertise, they may create ad hoc policies that have the force of law. Chevron USA also gives these agencies the right to bypass the more transparent law-making procedure that involves public participation and to adopt new policies behind closed doors that the public must follow.
The PERM Rule itself is not a hastily adopted statement of policy but the result of an official law-making process that was fully vetted and published in the Federal Register. PERM spells out in broad terms how employers may obtain DOL’s approval for foreign workers to accept job offers in the US.
The requirement to obtain alien labor certification does not apply to those who seek to enter in other categories, such as family based petitions, investors, multi-national employees, outstanding researchers and professors, persons with extraordinary or exceptional ability, national interest workers, religious worker immigrants, green card lottery winners or refugees.
Like the PERM Rule itself, published forms such as ETA 9141 (prevailing wage request) and ETA 9089 (PERM application) have also been promulgated through the legal process of publishing in the Federal Register, but there are many ambiguities and uncertainties that DOL clarifies by means of policies decided internally.
To begin with, there are Frequently Asked Questions (FAQ’s). Though not considered laws, these questions (and answers) provide guidance that employers need to know to apply under the PERM rule. An example is the requirement to document a foreign worker’s license or special skills to perform job duties. While the PERM form 9089 has a place to designate these as special job requirements (usually in H-14), due to an apparent oversight in the creation of the form there is no place to record the fact that the foreign worker has acquired the license or skill and no instruction where or how to write it on the form.
In 2013, DOL began denying PERM applications that did not show licensing qualifications in the foreign worker’s employment history. When Employers complained that there was no instruction for this on the form, DOL issued an FAQ advising employers to place licenses and special skills in Item K, a space used to describe work experience.
Templates have also become very popular to enforce agency directives. In PERM practice, Employers receive DOL templates during audits. The templates create a series of questions and demands to produce documents. Employers must provide answers. Some questions in the templates may purport to create additional legal requirements.
For example, after final determination,employers and attorneys must sign PERM applications to attest to the fact that foreign workers have not paid for any part of the PERM process, including recruitment costs or attorney fees; however, DOL uses the audit template to require the production of a separate affidavit from each party. The reason may be that DOL believes that additional sworn statements are necessary to underscore the prohibition against payment of fees by foreign workers.
DOL also has stakeholder meetings where issues are placed on agendas and discussions are memorialized in minutes. The meetings provide an opportunity for ongoing discussions about questions that raise difficult, new issues. Although unofficial, the minutes provide important guidance as to the direction of DOL’s changing policies. Stakeholder minutes usually predate FAQs and therefore enable Employers to recognize changing DOL policies and respond accordingly.
DOL also creates memoranda, consisting of opinions written by one or more DOL official and subsequently “followed” as if they were laws. An example is a memorandum on policy guidance written by Barbara Ann Farmer, "Field Memorandum: Number 48-94," issued more than 20 years ago, even before the PERM Rule was enacted in 2005, and which survives as a source of precedent to this day, which includes an instruction on the subject of roving employees. Although only intended to be a tool to achieve greater efficiency, the memorandum has been quoted for several decades as an example of DOL policy and is now regarded as a legal authority by the DOL and employers alike.
Correspondence between stakeholders and DOL officials is another source of policy-turned law. Attorneys sometimes write letters or verbal questions posing inquiries about how specific matters should be resolved.
Even casual comments occurring during question and answer sessions at conferences may be introduced as hearsay remarks by those were present and later followed as required guidance.
An interesting question is the extent to which state law may influence federal PERM practice. States have local labor and employment laws. Employers must always comply with these laws, even if they are requesting federal certification for foreign workers. An example might be a PERM application that provides for telecommuting from a home office located in a community where home offices are not permitted by local law.
State Workforce Agencies (SWA’s) are authorized and required by federal law to process job orders for employers in the State in which the job duties will be performed. The job orders must run for at least 30 days. However, beyond that broad, federal requirement, employers must comply with the rules of each SWA. Procedures to pre-register, questionnaires used to complete 30-day job orders, information required to be written in the job order, pop-up menus in the SWA on-line templates, terminology used in the job orders, and local practice affect every aspect of job order placement and may challenge employers who need to follow federal requirements.
Employers must accurately describe wage offers using federal standards, including wage ranges, prevailing and actual wage. However, some SWA job order templates use different terms to enter wage information, such as entry level salary, wage ranges, bonuses, and other descriptors that may prevent employers from putting the federally mandated wage information clearly in the context of job orders.
When controversies arise and PERM applications are denied, employers may appeal unfavorable decisions to the Board of Alien Labor Certification Appeals (BALCA). Curiously, BALCA decisions are not binding on future cases, and panels of administrative law judges sometimes rule at odds with each other when given similar fact patterns.
The challenge facing Employers is to distinguish among laws, policies, industry standards, and other norms, not only to assess their order of importance to define the correct, legal course of action, but also to anticipate changes or interpretations that may occur during the lengthy period of PERM processing.
The art of PERM practice is to know which policies and laws are important and how they interact with each other, a skill involving knowledge, experience, and a sixth sense!
Updated 07-04-2015 at 07:01 AM by JStewart