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Joel Stewart on PERM Labor Certification

Motions to Reconsideration and Appeals Under the PERM Rule

Rating: 3 votes, 5.00 average.

The original PERM rule in 2005 stated that if an application is denied, the employer may file a Motion to Reconsideration (MTR).


However, according to the Rule, the Employer could not include any evidence that was not previously submitted to DOL. This means that the Employer could not provide new and pertinent rebuttal information, as is common in most administrative legal processes. Strictly speaking, if a Motion involves a new analysis of an existing*body of documents and*data, it is a Motion to Reconsider the existing record, while a Motion that involves the presentation of new, previously unsubmitted evidence, would be a Motion to Reopen.


In PERM-land, there are no Motions to Reopen, only Motions to Reconsider. Or are there?


First,*a curious new development has occurred in the form of FAQ's dated December 1, 2009. Despite the DOL's earlier insistence on Zero-Tolerance, resulting in denials for minuscule typos and computer glitches, the DOL now (routinely?) permits Requests for Reconsideration based on "alleged Department Error."


Second, the Board of Alien Labor Certification Appeals has supported review of applications where errors made on the 9089 Form by employers*should be forgiven because*they are not material and*are*only the*result of a misunderstanding of the instructions, a computer glitch or a scribal error.


The status quo, according to the DOL, is the following:


An Employer currently has three options to appeal the Department's decision [in a PERM case]:



  • Request for Reconsideration, pursuant to 20 CFR 656.24(g)(1)

  • Request for Review before the Board of Alien Labor Certification Appeals (BALCA), pursuant to 20 CFR 656.26(a)

  • Request for Reconsideration based on alleged Department Error. (Wait a minute....why is there no*citation for this?)


And so, what is new here is that the DOL now acknowledges that it can and does make at least alleged errors, if*not real ones,*and that these errors may result in corrective action*to*applications.


Concerned about the confusion in*its appeal*procedures, the DOL has stated that the cover letter should make the reconsideration request by explicitly using the term "reconsideration" to ensure proper classification of the appeal. The best bet is to simply write the word "Reconsideration" in the heading of the document or memorandum.


"If an employer's appeal request does not indicate which type of appeal is being sought, the*DOL will assume the appeal is a request for reconsideration and "the appeal will enter the request for reconsideration appeals queue."


Motions for reconsideration must be requested within 30 days of the final decision (denial). Remember, that the 30 days means that the MTR must be received by DOL no later than the 30th day from the date of the decision.


DOL has conceded that an Employer may make corrections to a denied application and appeal the decision if the incorrect or missing information is the result of a typographical error or oversight and the correction is supported by documentation that existed at the time the Application for Permanent Labor Certification was filed (e.g., tear sheet or other advertisements, notice of filing, prevailing wage determination, etc.). This documentation will be accepted for reconsideration only if the employer did not have an opportunity to present the documentation previously (e.g., in response to an audit notification letter or other such request by the Certifying Officer).* Requests for reconsideration will be adjudicated in the reconsideration appeals queue.* If the CO chooses to uphold the decision the application will be forwarded to BALCA.* If the CO chooses to overturn the decision, the application will be processed according to Department procedures.


As stated above, a Reconsideration may be based on alleged Department Error. The FAQ states, "In general, a Department error may be denied due to a data entry error or a denial for failure to respond to an audit where the employer has proof of its audit response or proof it never received an audit request letter. Query: How do you prove that you did NOT receive a letter from DOL?*


"If you believe your application was inadvertently denied on this type of basis, the employer's cover letter must clearly state that the basis for the appeal is an alleged Department error. The Department suggests a brightly colored cover sheet stating that the appeal is being filed because the employer believes that the Department error is the sole reason for the denial."


The DOL adds that if it does not agree that it made an error, it will place the application in the reconsideration appeals queue.


The citation to the reconsideration regulation is the following:


20 CFR 656.24(g)(1) The employer may request reconsideration within 30 days from
the date of issuance of the denial.
*** (2) The request for reconsideration may not include evidence not
previously submitted.
*** (3) The Certifying Officer may, in his or her discretion, reconsider
the determination or treat it as a request for review under Sec.
656.26(a).


As you may have noted, despite the fact that you may not include evidence not previously submitted, it is sometimes necessary and permissible*to do that. For example, if the DOL states that it sent you a letter or notice, and you can provide that you did not receive the letter or notice, you*may provide evidence not previously submitted to DOL to prove that you did not receive the letter or notice, even though the regulation prohibits this.


For (a) Request for review. (1) If a labor certification is denied, or
revoked pursuant to Sec. 656.32, a request for review of the denial or
revocation may be made to the Board of Alien Labor Certification Appeals
by the employer by making a request for such an administrative review in
accordance with the procedures provided in this paragraph (a). The
request for review:
*** (i) Must be sent to the Certifying Officer who denied the
application within 30 days of the date of the determination;
*** (ii) Must clearly identify the particular labor certification
determination for which review is sought;
*** (iii) Must set forth the particular grounds for the request; and
*** (iv) Must include the Final Determination.
*** (2) The request for review, statements, briefs, and other
submissions of the parties and amicus curiae must contain only legal
argument and only such evidence that was within the record upon which
the denial of labor certification was based.
*information regarding the appeal procedure to BALCA, see 20 CFR 656.26(a):


Note that despite the language above to the effect that DOL will only consider evidence that was within the record upon which the denial of labor certification was based, this include any evidence that the Employer was required to maintain regarding the filing of the application, and in some cases, other evidence might be appropriate, such as evidence about which the Board (BALCA) may take judicial notice. An example would be a late filing based on the fact that the U.S. postal service was unable to deliver mail due to a blizzard or other natural disaster.


I am tempted to end this Blog by saying that it is the exception that proves the rule, however, I feel duty bound to offer some insight into this well-known proverb. According to Wikepedia,


-------------------------


Original meaning


The phrase is derived from the medieval Latin legal principle exceptio probat regulam in casibus non exceptis ("the exception confirms the rule in cases not excepted"), a concept first proposed by Cicero in his defense of Lucius Cornelius Balbus.[1] In other words, the fact that an exception is stated serves to establish the existence of a rule that applies to cases not covered by the exception. Fowler's Modern English Usage gives the following example:



"Special leave is given for men to be out of barracks tonight till 11.00 p.m."; "The exception proves the rule" means that this special leave implies a rule requiring men, except when an exception is made, to be in earlier. The value of this in interpreting statutes is plain.

Similarly, a sign that says "parking prohibited on Sundays" (the exception) "proves" that parking is allowed on the other six days of the week (the rule).


The phrase may also be invoked to claim the existence of a rule that usually applies, when a case to which it does not apply is specially mentioned. For example, the fact that a nurse is described as "male" (the exception) could be taken as evidence that most nurses are female (the rule). This is a slightly looser interpretation of the original meaning.


---------------------------


Fascinating stuff to draft Motions to Reconsider and Appeals in PERM cases, and*It's really food for thought, if you follow what I mean.

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