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Joel Stewart on PERM Labor Certification

DOL Dilemma: How to Correct Form 9089?

Rating: 7 votes, 5.00 average.

My colleague reported that he made a mistake on the approved 9089. The form was certified with a serious error on it! The hapless Employer wants to know what to do! DOL has made it clear that after a PERM Form is printed out and sent to an Employer, the agency will have nothing more to do with it. In the real world, it's not that easy to walk away from one's defective work product. However, judge ye not, for there is some benefit in this. Read on!



My colleague wrote, "I made a huge blunder and required 60 months experience in the job offered in section H6 and H6A instead of in an alternative occupation under H10 and 1H0A The strategy was to get an EB-2 classification based on a bachelors + 5. The beneficiary has used up his six years of H1-B eligibility."



He continued, "Is it possible to amend a certified, based on a typographical error? I've reviewed the Health America BALCA decision. If there is a way to fix a typo on a denied labor cert, it would seem logical that a typo on a certified ETA-9089 could also be cured."



Then he proposed an alternate strategy, namely "to submit a motion to reopen to the certified ETA-9089 for the purpose of amending the typo, send a copy to USCIS and ask them to hold adjudication of the I-140 and I-485 applications in abeyance until a decision could be obtained from DOL on the Motion to reopen and amend ETA-9089."



"I was also considering a Kellogg type argument to USCIS," he continued, "that it would be wrongful to deny the job to a U.S. worker with a bachelor's +5 in a related field and accordingly, if the recruitment effort showed that no U.S. worker with a bachelor + 5 applied, the I-140 for the beneficiary should be approved. The recruitment did not require five years experience in the job offered."



Although both these arguments are well reasoned, the problem with the is that according to Health America, the Employer bears the full responsibility for errors made and must suffer the consequences, unless the errors were caused by DOL. Remember, that in Health America the early version of the on-line 9089 did not include any warnings that the two Sunday ads typed on the electronic form were not seven days apart. That was held to be DOL's error, because the DOL site did not provide adequate warnings of a zero tolerance policy and did not include safeguards to minimize errors in data-input. In the instant case, the blunder was clearly the fault of the employer and not the DOL.



About the second strategy involving a Kellogg argument, we should say that Kellogg has been mostly dead for some time, and the argument, "If no U.S. worker was rejected, then no harm was done," has been rejected by DOL. The argument arose years ago in the context of alien ownership or control. DOL held that companies owned or controlled by aliens could not be used to certify them because of bad faith in the interview process. At that time, lawyers argued that if no U.S. workers applied to be interviewed or even applied for the job, why should it matter who owned or controlled the company? Unfortunately, DOL rejected this argument, claiming that there were no exceptions to the rule against alien ownership or control, even if U.S. workers were not available to be interviewed!



The instant dilemma is that the Employer wants the alien to continue working without interruption, but the alien's H-1B is coming to the end of its 6th year, the PERM approval is flawed, and the DOL will not allow a modification for good cause. Do you see any solution?



Here's a possible scenario. Note that the alien could continue renewing the H-1B beyond the sixth year under certain circumstances, one being that an I-140 has already been. Since DOL offers no solution to correct the error (even if caused by the DOL data entry contractors!) it follows that the Employer should file the I-140 with DHS with an explanation of the blunder. The argument would be that the error was unintended. To support his position, the Employer would provide documentation like of the Notice of Filing, Advertisements, the Prevailing Wage Request, and other recruitment efforts to prove that the requirements were not those stated on the 9089, but the ones used in the recruitment efforts. The Petitioner would then ask the DHS to approve the petition, notwithstanding the error. This would permit the applicant to continue with the H-1B, or alternatively to apply for adjustment and work authorization.



The DOL should not object to the Employer's explanations at DHS, since the DOL officially refuses to consider executing any corrections or modifications to approved PERM cases and has indicated that even DOL's own errors on the form can only be corrected by means of explanations provided to DHS at the I-140 stage of processing. Meanwhile, uncertain of DHS's ultimate decision, the petitioner should also file a new PERM application as a backup, without the original blunder!



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Comments

  1. Kalai Durairaj's Avatar
    Hello,

    Thanks for the wonderful blog. This particular post was very useful to me.

    My employer filed PERM in EB3 category on July 21st 2008 for me. I just recently found that the "Year relevant eduction completed?
    " question is answered as 2008 instead of 2002.

    My case is still pending? What is your suggestion? Do I have to withdraw and reapply loosing the priority date or should I just wait and see?

    If approved with this error can I just include a explanation and file I-140 as you mentioned? What is the risk involved in it?

    Please help!

    Thanks.
  2. Joel Stewart's Avatar
    Dear Kalai,

    You need to determine if the error (2008 instead of 2002) is material to your case. For example, if you need to prove a Bachelor's plus five years experience, the error would be material, since a person graduating in 2008 could not have completed five years experience). If the graduation date is not important, then you could probably proceed with the application in its current form (with the error) and include a note when you file with DHS that the graduation date for the diploma was wrong due to a typographical error. In fact, due to this error, the DHS might distrust your petition, so you should provide not only the diploma, but the transcript and any other reliable documents to prove that the correct date is 2002.

    Alternatively, you would have to file a new 9089 and, if you are outside the 180 day recruitment period, conduct additional recruitment.

    Sincerely,

    Joel Stewart
  3. hiddenAQ's Avatar
    Hi Joe,
    Thanks for informative article.
    My attorney made a typo, I'm an IT consultant and business demands travel to client side. JOB Posting included that requirment but attorney missed that line in 9089.
    Perm has now been denied,
    My questions are
    1) Can an appeal be made explaining the mistake supported by employer providing the business model
    and
    2) Can employer also start and 2nd Perm with some better attorney, while earlier is being appealed?

    Thaks and Regards
    ...
  4. Banky Oladapo's Avatar
    Hello,
    Thank you for such wonderful posting. I am frustrated. Here is my Scenario
    Filed in EB-2, labor approved and certificate sent to Employers.
    Employers called me in to sign the form, while signing, Employer was kind enough to allow me go through the form. I discovered DOL made an error in My last name on page 5 (used a wrong letter). However, the name was correctly spelled on the signature page. Based on your blog, what would you advise my employers do? They were so frustrated too.

    1) File I-140 with an explanation showing DOL's mistake (a form should not have two different last names - should either be consistently wrong or right)

    2) Try getting DOL to change it (but how?)
    Thank you
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