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Joel Stewart on PERM Labor Certification

Motion to Reconsider: PERM

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Here is an example of a Motion to Reconsider that may be used if the PERM Form 9089 has the wrong dates for recruitment. This Motion is in accordance with recent DOL Guidelines that authorize reconsideration in some types of cases.


"A decision (Denial) states that the Employer failed to place newspaper ads on Sunday and that the ads were placed on two Fridays, instead of on two Sundays The decision is based on the information placed on the PERM Form regarding the dates of publication.>>


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In actual fact, the ads did appear on two Sundays, as required by the regulations. However, the dates placed on the lace>PERMlace> form were erroneous. The dates the ads appeared were on two Sundays.>>


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In accordance with the regulations 20 CFR 656.17(e)(l)(i)(B)(l) and (e)(2)(ii)A), both Sunday ads were placed "in a newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers."  >>


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The error in dates occurred due to a misreading of the type print on the tearsheets that were sent by the newspaper to the employer. The top margins of the tearsheets bear the dates that the ad copy was placed into the newspaper's computer system by the newspaper. Those dates appear on the top margin of the tearsheet in print that is larger and easier to read than the print immediately below on the same tearsheet.  As has now been revealed, the dates on the top are not the dates on which the ads appeared in the newspaper but date splaced on the tearsheet indicating the actual day (Friday) that the order was processed to place the ads for publication (Sunday). >>


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The employer  was unable to discern that the smaller print on the tearsheet was the date of publication. As a result, the employer  focused on the larger printed date and mistook that date to be the date of publication. >>


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The software of  the newspaper's computer system printed lengthy coded annotations onto the tearsheets with confusing information of the dates


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Due to the difficulty in reading and interpreting the information on the tearsheets, the employer misunderstood the dates of publication. >


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The policy of the U.S. Department of Labor has held that an employer may request reconsideration if the incorrect information is the result of a typographical error and the correction is supported by documentation that existed at the time the Application for Permanent Labor Certification was filed.


 

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The tearsheets documenting publication of the ad on two Sundays existed at the time that the lace>PERMlace> application was filed. The employer has not previously had an opportunity to submit this documentation to the Certifying Officer.>>

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In Matter of Health America, No. 2006-PER-00001, (BALCA, July 18, 2006), the Board of Alien Labor Certification Appeals first dealt with a case virtually identical to the instant case, where the ads were properly placed on two Sundays, but the dates written on Form 9089 were not the correct dates.>>


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More recently, in the Matter of Ben Pumo, 2009-PER-040, October 29, 2009, the Employer failed to place the dates of publication on Form 9089, but the dates of publication were in fact two Sundays. The errors were excused because they were not material. >>


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The errors were ministerial and harmless in nature and do not represent a failure to follow the regulations or to recruit in good faith.>>


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Based on the above information, by this motion the Employer respectfully requests reconsideration and certification of the application. It would not be possible to refile the application at this late date, since the entire recruitment period would be out of processing time (more than 180 days), and the documentation provided with this request for reconsideration demonstrates that despite the misreading of the dates on the tearsheets, the regulations were strictly followed, and the advertisements were placed on two Sundays as required by law."


 


 

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