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Joel Stewart on PERM Labor Certification


  1. PERM: I-360 Religious Workers, PERM and 245-i

    by , 06-05-2011 at 09:10 AM (Joel Stewart on PERM Labor Certification)
    Many persons applied for immigration benefits in April 2001, to meet the deadline under 245-i. Employers and family members filed petitions and labor certifications in favor of aliens to obtain permanent residency in the U.S. The law, which never came back after 2001, fell victim to post 9/11 anti-alien frenzy.
    The history of the administration of the 245-i law is a series of inconsistencies.  The American Immigration Lawyers Association has 245-i listed as a Featured Topic, and for good reason, with approximately 40 documents listed and categorized with sundry titles as Agency Memos Cables and Letters, AILA Publications, AILA / AIC Announcements, Amicus Briefs, Analyses and Summaries, BIA / AG Decisions, Circuit Courts, Congressional Updates, Enacted Legislation, FR Regulations and Notices, Government News, Liaison Activity, Memo and Regulatory Comments, Practice Assistance, Press Releases and Statements, Proposed Legislation, Reports and Studies, and Testimony and Correspondence.
    Some of these official documents, especially more recent ones, are contradictory of earlier documents, and serve only to worsen the plight of those would would seek benefits of adjustment of status by claiming grandfathering under 245-i.
    245-i began as a way for undocumented aliens who were subject to a 10 year bar because of their unlawful presence to apply for residency, either by family or employment based applications or petitions, and pay a fine of $1,000.00 which permitted them to apply for adjustment of status.
    Since April 1, 1997, undocumented persons, whose authorized status expired for six months or more cannot apply for residency in the US through adjustment of status, but for a few exceptions involving close relatives of United States citizens and certain abused spouses, government informants, victims of trafficking and others, for whom unauthorized status (also known as unlawful presence) is waived.
    245-i seemed very straightforward when it was first legislated. Applicants had to prove that petitions and applications for alien labor certification filed on their behalf were not frivolous and were properly filed no later than April 30, 2001. Except for applicants who applied before January 14, 1998 (when the window of opportunity for the first 245-i law ended before being renewed in 2000), applicants also had to prove that the principal applicant was in the US (physically present) on December 21, 2000. Large numbers of persons paid filing fees and sought legal counsel to file petitions or apply labor certifications before the deadline.
    Because no regulations were ever issued, the legacy INS, and then the USCIS (DHS), issued policy "guidance" in the form of opinions as to the privileges available to the principal grandfathered alien and family members. As Immigration Lawyers know, under the Chevron doctrine,  "policy guidance" is given great deference in the federal courts, even though the guidance does not rise to the legitimacy of a properly issued regulation.
    Unanswered questions about 245-i abound: Can the principal person acquire a spouse or child after being grandfathered?  Can the principal person or derivative spouse or child apply after 2001 with a new petition or application? Could a 245-i protected person leave the US and return or would that person be subject to exclusion? Can a principal alien "port" under AC-21 to a new employer, and if so, what would be the effect of a withdrawal and/or denial of the original petition on the alien's status after porting? Can aliens port to their own companies?  What kind of occupations or job offers are similar to the original for purposes of porting?
    Although 245-i was a bonanza for undocumented aliens, many applications filed before April 30, 2001, were necessarily prepared quickly to comply with the deadline (the window of opportunity was only open from December 21, 2000, until April 30, 2001).
    As a result, many applications and petitions were prepared hurriedly, with minimal documentation. Years later, the Service now tries to disqualify persons from 245-i eligibility whenever possible.
    For example, in a case that came to my attention recently, the alien applied for religious worker status on April 30, 2001 through an I-360 filed by a church. The I-360 was ultimately denied, in 2002, because the church did not provide detailed documentation about persons working in the church due to concerns about privacy interests.
    At some later date, the alien applied for certification through PERM to work for an employer in a non-religious occupation. Both the PERM and the I-140 petition were approved, and the alien then applied to adjust status to work for the non-religious employer based on 245-i grandfathering from the I-360.
    The adjustment of status was denied by the USCIS, because it claimed that the I-360 did not grandfather the alien. The USCIS argued that since the petition was ultimately denied, the alien could not claim that the I-360 was properly filed.
    Of course, the term "properly filed" is a term of art. In the case of a grandfathered alien, and unless the application or petition were fraudulent, as long as it was signed, meritorious in fact, and accompanied by the filing fee it was approvable when filed.
    Some Service decisions have held that if the Employer did not have the funds available to pay the alien, the petition could not have been approved. However, the issue of proving funds depends on many financial details which are not generally understood and may require the intervention of certified public accountants.
    Interestingly, if the employer had filed an application for alien labor certification in 2001, instead of an I-360, the application might have been approved, because the Department of Labor would have processed the application for labor certification, not the USCIS, and the inquiry would have concentrated on the availability of US workers and not on the Employer's financial structure. The job, to work in a religious capacity for a Brazilian congregation, would not have been likely to attract qualified US workers, and the application for labor certification would have been approved.
    Unfortunately, many employers, including churches, do not realize that I-360's are an option, not a requirement, and both religious and lay positions may be certified through the Department of Labor for churches by filing an application for alien labor certification. An approved labor certification, filed on or before April 30, 2001,  should be acceptable evidence that the alien is 245-i eligible.
    The requirements for I-360's stiffened in 2008, when regulations were issued that require on-site visits and substantial scrutiny to prevent fraud. These visits may have a chilling effect on some religious organizations. While the on-site visits are only supposed to be for information gathering, church elders report that they have been subjected to questioning without having an attorney present and often receive admonitions or advice that is inaccurate and unauthorized as part of the purpose of the visit.
    Current interpretations of 245-i have contradicted previous guidance regarding eligible family members and spouses. The purpose of laws should be to provide stable, dependable and predictable standards upon which citizens may rely, and not to confuse them with constantly changing, arbitrary interpretations and decisions.
    The question of I-360 v. PERM and I-140 requires a thoughtful analysis of the employer and alien's qualifications, as well as a balance of the advantages and disadvantages of each kind of application.
    For 245-i applicants, who applied more than 10 years ago, it is too late to reapply, but an in depth understanding of I-360 petitions, labor certification filings and the history of 245-i is required to establish the right of many aliens to apply for adjustment of status as grandfathered aliens.
  2. PERM: Manifest Injustice

    by , 05-23-2011 at 04:22 AM (Joel Stewart on PERM Labor Certification)
    The doctrine of manifest injustice has been historically invoked by the Board of Alien Labor Certification Appeals where employers suffered egregious malfeasance when represented by non-lawyers. 
    Consider a case in which the employer may have been the victim of the unauthorized practice of law, with its application for certification riddled with extensive defects wholly attributable to the agent's incompetent execution of the recruitment period and preparation of the Form 9089.
    PERM regulations and recent BALCA decisions do not permit correction of errors which were caused by the Employer (or Employer's agent).

    Under the Federal Administration Procedures Act, each federal agency has the power to permit and regulate lay representation in its proceedings. Acting on that power, the U.S. Department of Labor implemented the PERM Rule permitting the employer to be represented by an agent, representative, or attorney. 20 C.F.R. 656.10(b)(1).
    What the U.S. Department of Labor has not done is to regulate lay representation. While attorneys, who must be professionals licensed to practice law in a particular state, are regulated by State Bar Associations, agents and representatives, who are non-lawyers, have no regulation whatsoever.
    Neither the regulations of the U.S. Department of Labor nor the PERM Rule provides any standards of conduct for agents and representatives. Indeed, the PERM Rule contains exactly one reference to a standard of conduct for the attorney, agent, or representative in a PERM case:

    "No person under suspension or disbarment from practice before any court or before the DHS or the United States Department of Justice's Executive Office for Immigration Review is permitted to act as an agent, representative, or attorney for an employer and/or alien under this part." 20 C.F.R. 656.10(b)(3).
    The PERM Rule provides no advisory to the public about the complexity of the Application for Alien Employment Certification. In fact, the Preamble states plainly:
     "Attorney representation is not necessary to file an Application for Permanent Employment Certification." (Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System; Final Rule, 69 Fed. Reg. 247 at 77375 (Dec. 27, 2004)).
    The Preamble presents a discussion of agent, representative, and attorney as though the three different types of representation are interchangeable, with the agent and representative, who are subject to no educational or ethical standards, indistinguishable from an attorney. See Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System; Final Rule, 69 Fed. Reg. 247 at 77336-7 (Dec. 27, 2004).
    On the other hand, it is beyond dispute that representation of an employer in a PERM application is the practice of law inasmuch as it consists of exactly those activities which traditionally have been the sum and substance of the practice of law, namely, preparing legal documents, rendering advice regarding one's legal rights and responsibilities, and representation of others in legal proceedings. By its disregard for the potential harm to be visited on the public through the unregulated conduct of untrained legal advisors, the U.S. Department of Labor is facilitating the unauthorized practice of law via the PERM Rule.
    The U.S. Department of Labor has compounded the long-term effects of potential harm from unregulated advisors by the regulation at 20 CFR 656.10(b) which stipulates that if an employer is represented by an agent or attorney, the employer must take full responsibility for the accuracy of any representations made by the attorney or agent. In one broad stroke, the PERM Rule swept away the concept of detrimental reliance, forcing the employer into a position where the price for reliance on an unregulated agent or representative is assumption of the risk for incompetent work.
    Under the current regulations and guidelines of the PERM Rule, employer have absolutely no recourse to correct de minimis defects wholly attributable to the incompetent actions of agents. Although the conduct of the agent amounts to the unauthorized practice of law, the actions of the agent are immune from any consequences because the agent answers to no regulating body, and the U.S. Department of Labor has established no standards for agents' conduct. Rather, the PERM Rule assigns responsibility for those defects squarely on the employer.
    Even before the advent of the PERM Rule, the Board of Alien Labor Certification Appeals fashioned a rule that in cases where aliens were represented by non-lawyers, or by incompetent lawyers, and suffered egregious malfeasance, it would be manifest injustice to not permit the malfeasance to be corrected, even if corrective action were not specifically prescribed within the regulations. (Madeleine S. Bloom, 1988-INA-152 (Oct. 13, 1989)(en banc); Park Woodworking, Inc., 1990-INA-93 (Jan. 29, 1992) (en banc); Al-Ghazali School, 1988-INA-347 (May 31, 1989)(en banc); Buena Vista Landscape, 1990-INA-392 (July 9, 1991)(en banc).
    Under the doctrine of manifest injustice, the errors caused by incompetent representation may be corrected by means of Supervised Recruitment as provided for in the PERM regulations.
     A specific set of circumstances might support a request for remand under the doctrine of manifest injustice, namely, reliance on an untrained agent engaged in the unauthorized practice of law, substantive correctness of the Form 9089, the de minimis nature of the defects that can be cured by means of a supervised recruitment period, and the employer's persistence and dedication to the integrity of the PERM process.

    A motion for review to the Board of Alien Labor Certification, but also containing a request for reconsideration based on manifest injustice, could include a request to remand to the Certifying Officer with an order to conduct supervised recruitment. The additional recruitment would be necessary to correct defects in processing caused by the incompetent agent.
    The advantage to continue with recruitment, instead of filing a new application, is that this would permit employers to maintain original priority dates in accordance with the USCIS immigrant preference system, which would be a great injustice to the employer and alien in any case pending before the DOL.

  3. PERM: Solicitor Scheinfeld's Advice

    by , 05-16-2011 at 05:09 AM (Joel Stewart on PERM Labor Certification)
    Last summer's AILA Conference in DC included a panel on BALCA with Harry Scheinfeld, Solicitor for the Employment and Training Administration (ETA) of the DOL. Mr. Scheinfeld's remarks included some advice which may be helpful to practitioners.
    Mr. Scheinfeld said that the DOL wins at BALCA about 90% of the time. Based on these numbers, Mr. Scheinfeld advised,  it is recommended that applications be filed for approval without appealing to the Board. While this advice may seem gratuitous, many appeals are based on careless or typographical errors. The whole point of the PERM Regulation is to eliminate unnecessary review of labor certification denials.
    The DOL currently uses a system of on-line checks for electronically filed cases which may warn Employers that the answer being given on the form is inaccurate, to avoid situations like incorrect dates of Sunday advertisements, which were improperly placed on Form 9089 in the HealthAmerica case.
    More importantly Mr. Scheinfeld also advised about bad lawyering, for example, when Employers submit new evidence directly in appeals to the Board instead of filing new evidence to the CO in a motion to reconsider.
    Motions to reconsider and motions for appeal to the Board were re-engineered in the regulations in 2007. Many practitioners do not realize that under current regulations, new evidence may only be introduced in a motion to reconsider to the Certifying Officer and not in a motion for review by the Board.
    Section 656.24(g)(1) entitled "Labor Certification Determinations states, "The Employer may request reconsideration within 30 days from the date of issuance of the denial."  In Section 656.24(g)(2) the request for reconsideration may only include "documentation that the employer did not have an opportunity to present previously to the Certifying Officer, but that existed at the time the Application for Permanent Labor Certification was filed, and was maintained by the employer to support the application for permanent labor certification in compliance with the requirements..."
    Mr. Scheinfeld advised that a motion to reconsider is most useful when a denial is issued, without an audit, but when an approval would be possible, had the Certifying Officer received documentation that was not available with the application Form 9089 filed with the agency. 
    A more difficult situation occurs when the Employer has already responded to an audit, which provided an opportunity to submit the required documentation to the Certifying Officer, but the Employer failed to provide the documentation, and then, after receiving a denial, tried to submit the required documentation by means of a Motion to Reconsider.
    However, the entire section  656.24 does not clearly state who may reconsider the application. Based on the general context,  one may conclude (using precepts of statutory construction) that the DOL meant to say that only that the Certifying Officer may reconsider the application. This conclusion would be based on the fact that the entire paragraph 656.24 refers to the Office of Foreign Labor Certification Administrator, the National Certifying Officer, and the Certifying Officer. For example, 656.24(g)(4) states, "The Certifying Officer may, in his or her discretion, reconsider the determination or treat it as a request for review under Section 656.26(a)." This section was revised on July 16, 2007, and Mr. Scheinfeld explained that this was the agency's response to HealthAmerica.
    Keeping in mind that the DOL authorizes non-lawyers to represent Employers for profit, without being members of a bar association, it is unclear how employers and their representatives might always be expected to understand the mechanism of Motions for reconsideration, whether before or after July 16, 2007. Even a seasoned attorney might not realize that the Agency's legal interpretation of Section 656.24 is that initial motions to reconsider with additional documentation may only be filed to the Certifying Officer, and not to the Board. For example, nowhere in the PERM regulations does it state that motions to reconsider with new documentation are not permitted to the attention of the Board. Notwithstanding this regulatory language and its current interpretation, all motions to reconsider and all requests for review to the BALCA are filed with the Certifying Officer anyway, so this may contribute to the lack of certainty as to who may review what.
    Of course, a Motion to Reconsider may be filed with the Board after a decision issued by the Board in response to a request for review (appeal).
    To remedy this ambiguity, the regulatory language could be revised to state more clearly that a motion to reconsider may only be filed with with the Certifying Officer, and not as a motion for review to the Board. Or the CO might be authorized to treat all motions and requests as motions to reconsider, even if the motion or request includes documentation that has not previously been submitted, regardless of the title of the motion or request used by the employer, attorney or representative, and regardless of the person to whom the motion or request is addressed.
    The Certifying Officer already has several different queues depending whether the motion is submitted based on government error or non-government error.
    In conclusion, while Mr. Scheinfeld is correct that attorneys should read the regulations, and many have not, the PERM Rule itself may not always provide complete clarity to employers, attorneys or representatives who prepare and file applications under the PERM Regulation.
  4. PERM: CO May Revoke "If Certification Was Not Justified"

    by , 05-09-2011 at 08:17 AM (Joel Stewart on PERM Labor Certification)
    The PERM Rule contains a provision at 656.32 entitled "Revocation of approved labor certifications."
    In the pre-PERM Rule, labor certifications could only be revoked for fraud, but under PERM the standard has been lowered to include any certification that was not justified.
    The procedure for revocation by DOL begins when the CO sends a detailed statement of the grounds for the revocation and a notice to rebut within 30 days of receipt of the notice. The rule states that the CO then "must consider all relevant evidence presented in deciding whether to revoke the labor certification." 
    If the Employer does not respond, the Notice of Intent to Revoke becomes the final decision of the Secretary of Labor.
    Presumably the level of proof required to revoke certification would have to meet only the "substantial evidence" test, which only requires a rational decision based on the record.
    Interestingly, the CO must decide whether to revoke within 30 days of receiving the rebuttal information. This is the only example of a specific deadline in the PERM Rule or even in the pre-PERM rule that the CO must observe.
    If the CO revokes the Certification, the Employer may file an appeal under the same rule that governs a denial of labor certification at 656.26.
    DHS or DOS may also revoke a labor certification in the manner set forth at 656.30(d, however, the operative language in 656.30(d) is "Invalidation." Although the PERM Rule seems to use the terms invalidation and revocation interchangeably, "invalidation" by DHS or DOS may only occur if a Consul of the Department of State or an Officer of the DHS makes a determination, in accordance with those agency procedures, or by a court, of fraud or willful misrepresentation of a material fact involving the labor certification application.
    Since the standard used by DOS and DHS is fraud or willful misrepresentation, invalidation can rarely be accomplished  without a showing of willfulness or intent which must be proven by probative evidence. Administrative agencies, including the BIA, generally require more than the preponderance of evidence to find fraud or willful misrepresentation. In fact, the proper standard to prove such intent is clear, unequivocal and convincing. (Matter of Tijam, BIA, Interim Decision 3372, 1998.)
    As the record rarely supports these findings, agencies often deny applications just by alleging fraud or misrepresentation, instead of by proving the allegation, and by presentation of lesser documentation, as long as the reasons are based on "substantial evidence." For example, using the "totality of circumstances" analysis, such denials will simply state that the petitioner has not met its burden of proof.
    Since most accusations of fraud or willful misrepresentation amount to nothing more than speculation, the USCIS or DOS may invalidate an application without meeting the burden of proof. In such cases, the I-140 petition may be denied, but the labor certification may not be invalidated.
    While in such cases the petitioner may seem to have won the battle but lost the war, the fact that the labor certification can not be revoked by the DOS or DHS without clear, unequivocal and convincing evidence, or at least by more than the preponderance of evidence, results in the bifurcation of the adjudication of the I-140 invalidation  -- the actual I-140 petition can be denied but the underlying labor certification can remain intact.
    The distinction becomes important in certain situations. For example, under 245-i, a denied or revoked petition may not serve to grandfather the alien, but if the petition is denied for lack of evidence, and the labor certification is not shown to be fraudulent or to contain willful misrepresentation of a material fact, the alien may be grandfathered since the application was properly filed (meeting the deadline no later than April 30, 2001, signed by the applicants, and prima facie approvable).
    The Board of Alien Labor Certification has frequently upheld denial of labor certification based on a finding of lack of good faith. While seemingly allied with the concept of fraud or willfull misrepresentation, the concept of good faith is different. Lack of good faith has never been defined by DOL or BALCA but can be found using the totality of circumstances test. The main difference is that a finding of lack of good faith does not require a showing of mens rea to defraud or fool the government.
    While these concepts may seem to be esoteric to persons who rely on common sense and not on subtle legal distinctions, they frequently arise in practice, as many approved labor certifications are wrongfully characterized as fraudulent, or containing willful misrepresentation, simply as a matter of conjecture or suspicion, when in fact there is no evidence in the record to establish that as a fact.
  5. PERM: Government Error Queue

    by , 04-25-2011 at 09:33 AM (Joel Stewart on PERM Labor Certification)
    The DOL "government error queue" is a line for PERM cases which have been denied and sent by Employers to the CO with requests for reconsideration. This queue is available only in cases that have been denied due to an error on the part of the government. Other cases with request for reconsideration, whether denied due to Employer error or for any other reason, go into the "regular" queue.
    The qualitative difference between the two queues is that the government error queue is faster, maybe requiring a few weeks to obtain a corrected final determination, while the employer error queue may take several years. Although the designation of two queues is convenient, there will always be many cases which fall into a gray area but which may nevertheless be relegated to the employer error queue.
    The PERM Rule became the law of the land on March 28, 2005, replacing the previous pre-PERM Rule, which permitted employers to respond to requests for evidence from the DOL prior to receiving a final determination. Hence, under the pre-PERM rule, an employer would receive a Notice which set forth reasons why the CO did not wish to approve the application for alien labor certification.
    The practice of issuing a notice to request further information or to advise of some perceived deficiencies prior to issuing a final determination is routine in administrative law. For example, the USCIS may issue a Request for Evidence or a Notice of Intend to Deny, or both, prior to approving an application or petition. This form of Due Process ensures that correctable errors will not result in denials which then may require lengthy appeal processes or prejudice petitioners.
    The 2005 PERM Rule eliminated this Due Process safeguard by eliminating the possibility to correct harmless errors during agency review of the application. This lack of opportunity to respond to  deficiencies results in many denials that may be incorrect, but which can then only be reversed upon the presentation of evidence, documentation or arguments by the Petitioner in the post-final determination stage of proceedings.
    The Department of Labor purposely created the PERM Rule with less opportunity to provide rebuttal evidence to speed up the process and increase agency efficiency. Although these are admirable objectives, the practice, as applied, often results in unfair delays and prejudicial expenses to Employers.
    The current situation is that the Department of Labor now uses the mechanism of reconsideration after denial of certification to correct errors that may be caused by the government, but these motions may only be used after final determinations (denials) from the agency -- hence the creation of the "government error queue." At the same time, errors that the government does not believe were made by the DOL, but may have been made by the employer, go into a separate queue which may take several years.
    Not too long ago, motions to reconsider under PERM were taking about 2.5 years -- far longer than the expected processing time for PERM cases. In fact, PERM Final Determinations were originally heralded to take 60 days or less -- but this is a promise that has not always been kept.
    One of the premises of the PERM Rule is that an employer who receives a denial should refile the application with the error corrected, instead of entering into a series of time consuming arguments and rebuttals with the agency. While the idea of refiling instead of rebutting is an interesting, innovative idea with great merit, it does not work if the employer receives the denial after the end of the 180 day validity period for filing.
    Employers are required to start and complete the PERM recruitment process within 180 days, which includes a 30 day period (between 150 and 180 days) when recruitment is not permitted (except for one form of professional recruitment). Consequently, if an employer files a PERM case as early as possible (a period of about 61 days is the minimum time during which a PERM case may be prepared and filed by the Employer), and if the government takes up to 60 days to issue a determination, the Employer may still have time to correct the error, and to refile the PERM application without encountering the costs and efforts of the entire recruitment process.
    Unfortunately, delays in PERM processing, beyond the 60 day period promised by the Agency, make it impossible for employers to refile applications, although they are so instructed on denials issued by the DOL, as it refiling were a viable option.
    The point of all this is that the DOL, in its PERM rule, now uses denials to notify employers for the first time that there may be a correctable deficiency or problem and has eliminated the opportunity for employers to correct the problem prior to receiving a denial.
    While the CO does not appear to perceive any difference in the two (pre-denial or post-denial) types of reconsideration, the post-denial procedure is clearly onerous and unfair, making it difficult for Employers to correct simple typographical errors or mistakes without going to a lengthy and complex appeal process or to begin a new and expensive recruitment process.
    Surprisingly, there is a little-known part of the PERM Rule which permits the CO to request information from an Employer prior to issuing a denial, just as in the old Rule. This is found in 20 CFR 656.20(d), which states that the CO may (whether in the course of audit or otherwise) "request supplementation information and/or documentation."
    Under this regulation, just as in pre-PERM procedure, the Certifying Officer may issue a request for evidence, instead of issuing a denial, thereby offering an opportunity for pre-denial rebuttal.
    The DOL could easily use this regulation to resolve many problems of "harmless error" -- including typographical errors, omissions, and misunderstandings by offering the Employer an opportunity to rebut a negative finding prior to issuing a denial.
    Just think how the Health America debacle could have been avoided, with all the legions of articles and interpretations that have been written about it by legal experts, and without subjecting BALCA to the difficult task of remanding the case when the regulations clearly did not permit remands -- all of this could have been avoided, if the CO had simply asked the HealthAmerica company to clarify that the two advertisements had indeed been placed on Sundays as required by the regulations.
    One must also take notice that many errors on the PERM form occur due to ambiguities on the PERM Form 9089, vague instructions and interpretations by the Agency, inherent "bugs" in the on-line filing system, and problems inherent in the PERM Rule itself .
    The current process requiring Employers to appeal to BALCA to resolve simple errors, many of which are innocent and harmless, clogs up the Board's docket and creates unnecessary and unfair delays, which were not anticipated by the reenginering process that resulted in the PERM Rule.
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