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Joel Stewart on PERM Labor Certification

PERM: Solicitor Scheinfeld's Advice

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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.

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