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Joel Stewart on PERM Labor Certification

PERM: CO May Revoke "If Certification Was Not Justified"

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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.


 

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