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Joel Stewart on PERM Labor Certification

BALCA Upholds Policy of Zero Tolerance

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In 2007-PER-00040, Alpine Store, Inc., June 27, 2007, the Employer omitted keying in Section H-8 (alternate combination of education and experience). The CO asserted that this made the applciation incomplete and subject to denial. The Employer argued for reconsideration on the basis that the application did not warrant a denial for a "slight error" and that a simple Request for Evidence would have resulted in correction of the omission. The Employer obviously yearns for the good old days, when Employers could correct defects anywhere along the way, before or after the Final Determination, by responding to a Notice of Findings or Remand from eht DOL. Under PERM, no defects are permitted. The form has to be 100% correct to be approved. If this seems unfair, we note that not only has DOL gone to Zero Tolerance, but DHS is also heading in that direction. The Interoffice Memorandum from Donald Neufield, dated June 1, 2007, explains that as of Friday, August 17th, DHS Examiners have new guidelines regarding issuance of RFE's. Applications and Petitions are no longer considered properly filed if signed and accompanied by the required filing fee. Instead, "Every application or petition, regardless of the benefit sought, must include information in all required blocks and include all supporting evidence. The new guidelines provide that if incomplete, the petition or application may be denied forthwith. See Adjudicator's Field Manual, Chapter 25.2(d)(3) effective June 18, 2007: "Requests for Evidence. In situations where required initial evidence is submitted but does not e4stablish eligibility, USCIS may deny the petition for ineligibility."

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