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Joel Stewart on PERM Labor Certification

PERM: The Zero Tolerance Standard

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A peculiarity of the alien labor certification program (known as PERM) is that the US Department of Labor has a policy of Zero Tolerance towards scrivener errors. No inaccuracies of any kind are permitted, and when errors do occur, no amendments may be made after the filing date – not even innocent typographical errors on the PERM forms can be corrected.

Soon after the new program began in March 2005, the Department of Labor denied a PERM application that contained a very simple error. An Employer had advertised a job opening in two Sunday newspapers (as required by law), but on the PERM form the Employer confused the publication dates and wrote them eight days apart instead of seven.

The alien labor certification program uses the acronym PERM for “Program Electronic Record Management.” The idea came out of a reengineering effort to reduce processing times for alien employment certification. Under PERM, employers could file applications electronically to be scanned by computers and not by human eyes.

Applications adhering to the PERM regulations (i.e., advertisements placed on the proper days and dates, strictly enforced processing times, notices of job opportunity properly posted, media and other recruitment conducted according to the regulations, and records maintained for possible audits) could be rewarded by prompt agency determinations, hopefully approvals, within a few days of filing.

However, the Department of Labor only approves perfect applications that have no electronically discernible errors, and any error of any kind results in a denial. It is important to note that there are essentially two kinds of errors: those that are substantive and affect the legal requirements and bona fides of the job search and clerical errors that do not relate back to the essential legal requirements but are merely typographical errors or omissions. Among jurists, the latter errors may be called “harmless” or “de minimis.”

Prior to the PERM Rule, harmless errors could be corrected by employer correspondence with the Department of Labor. This has the advantage of saving or preserving an application, but since the PERM Rule relies on electronic review of the forms, DOL computers do not easily distinguish between harmless errors and more serious errors that may invalidate the application.

An example of a significant error would be the failure of the employer to place two Sunday newspaper advertisements not on Sundays, but to mistakenly place them on a Sunday and a Monday, while an example of a harmless error would be the placement of two newspaper advertisements on two Sundays, but mistakenly indicating on the form that one was placed on a Sunday date and the other on a Monday.

There was a famous case called “HealthAmerica,” wherein the employer advertised a job opportunity in two Sunday newspapers as required, but typed the second publication date incorrectly with an eight-day interval between the two dates... The error on the form was harmless because the advertisements had been published on two Sundays.

The administrative law judges of the US Department of Labor chastised the government for denying the application, but despite the legal controversy of the moment, the issue of zero tolerance of harmless errors continues ten years after the introduction of the PERM Rule, and typographical errors, no matter how innocent and trivial, still serve as the bases of denials.

While many typos are, indeed, the employer’s fault, due to careless proofreading, some errors occur because of glitches in the DOL electronic on-line application program. When this happens, Employers may sometimes win approvals by filing requests for reconsideration of denial that point out the error was due to an electronic malfunction and not to human failure.

Another area of difficulty is that the instructions provided by the Department of Labor are sometimes confusing or even contradictory. There are several different types of instructions that Employers need to follow.

Some instructions are printed on the PERM form near the boxes provided for data input. Other instructions are published separately on the DOL website. Even the electronic on-line system has its own full set of instructions that attempt to explain how to work with pull-down menus, use of addenda when there is lack of space available for data input, and other purely electronic problems.

With all this, the most common errors result from ambiguous questions and inconsistencies in the process.

One was the need to include the phrase, “Employer will accept any suitable combination of education, training or experience,” commonly known as the “magic language.” Only after many denials were issued, the DOL finally gave guidance in the form of FAQ’s which explain that the language can be placed anywhere on the form, for example, in H-14 “Special Requirements.”

Another occurred when DOL routinely denied applications that did not include information about the foreign workers’ acquisition of licenses required to perform the job duties, even though there was and still is no official place on the form to place the information. The DOL has now clarified that these skills can be included in the summary of alien experience in Part K of form 9089.

The entire PERM Rule has been replete with complex deficiencies, although many of them have been resolved by the issuance of FAQ’s. These may include audit requests which are not specific or clearly stated; difficulty in locating important information to place on the forms, lack of detailed and specific instructions for advertisements in electronic journals and websites, uncertainty about the selection of newspapers of general circulation in which to place ads; criteria relating to selection of job search websites; procedures for use of employee referral programs; standards for minimum and alternate minimum requirements to perform job duties; prevailing wage determinations that are not available because DOL has not yet calculated wages for the occupation; and strict limitations on opportunities to request reconsideration and review of unfavorable decisions.

The policy of the Department of Labor is not sympathetic to difficulties that employers experience arising from technical difficulties in the application process. Instead, the agency has consistently held that employers who make errors on PERM applications should simply refile the applications with the “errors” corrected.

The problem with the recommendation to refile is that PERM applications must be completed and filed within 180 days of the beginning of the advertising and recruitment process. When an error occurs, and a denial is issued after the 180-day period, refiling is not possible without undergoing a brand new 180 day period of expensive advertising and recruitment.

The PERM Rule never contemplated lengthy delays. When the program began in 2005, the DOL had promised prompt determinations, and indeed, in initial months of the program, some applications were decided within two weeks or even on the same day. Nevertheless, processing times have grown and are currently unpredictable, sometimes taking up to a year or more if audits are issued. When the 180-day period has passed, a harmless error can necessitate a completely new application that creates an unreasonable and unfair burden on the Employer.

The best way to deal with the challenges of Zero Tolerance PERM processing is for employers to establish a multi-level internal review to confirm every detail on the PERM forms and to research each question and proper answer prior to filing with the DOL. Only very experienced personnel managers, administrative assistants, and attorneys should undertake the preparation, processing, and filing of PERM applications.

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