Going Forward With PERM!
Under the PERM Rule, employers are required to ‘go
forward’ with carefully drafted applications, and, like most
agency laws, the Rule was created and exists solely by authority of
the Administrative Procedure Act (APA). In this article we will
analyze two considerations: How and when the APA requires PERM
employers to go forward with requests for alien labor certification
while providing opportunities for consideration of rebuttals with
documentary evidence.
The familiar, statutory pattern to provide Due Process is
threefold: (1) applications are submitted to agencies, (2) agencies
issue decisions, and (3) opportunities to provide rebuttal evidence
are provided. However, there is a wide range of disparity which may
be expected depending on the type of government and personal
interests at issue.
The Travel Safety Administration is one example — where the
public interest to fly safely is greater than the individual’s
right to fly — and the Department of Labor (DOL) is another, where
the mission to protect employment conditions of U.S. workers may
outweigh employers’ needs for foreign workers. The right to
immigrate through offers of employment is a civil matter where Due
Process is limited by the need to protect the domestic
workforce.
The next important points in time are the recruitment process
and subsequent filing of results on Form 9089. Here employers must
create and maintain detailed records of all the recruitment steps
they take by preparing supporting documentation for every
contingency.
‘Going forward’ also means that great attention must be
paid to 100% accuracy on the Form 9089 to avoid even minute
ministerial and typographical errors that can prove fatal. While
some government agencies allow amendments and corrections after the
filing date, but before issuing determinations, PERM does not.
Consider the very first BALCA case, Health America,
2006-PER-0001 (BALCA July 18, 2006), where an employer properly
advertised in two Sunday newspapers but reported the 7th and the
15th, instead of the 7th and the 14th, so that the wrong digit
indicated the date of the second Sunday ad on the
form.
With this simple typo, the second ad was seemingly placed not 7
but 8 days after the first. This error resulted in a denial without
providing the employer an opportunity for rebuttal to prove that
the ads had been placed correctly on two separate Sundays.
The denial seemed unreasonable to many stakeholders — so much so,
that, acting on advice from the judges, DOL went on to improve Form
9089 with pull-down menus that automatically dissuade employers
from typing the wrong date.
When audits do occur, in about 10% of cases, employers must go
forward with their responses promptly. Audits often state
conclusions, however, that are ambiguous or over-reaching, leaving
employers no opportunity to reach out for clarification. Only after
denials are issued may employers file Requests for Reconsideration
but generally without the opportunity to introduce new
evidence.
Upon denial of reconsideration, the only recourse is to file
Requests for Review to BALCA, but, here again, PERM does not permit
employers to introduce new evidence for consideration by the
administrative law judges. Even new legal arguments are prohibited
if they have not been previously set forth in the record.
A new feature was introduced on May 20, 2020, when DOL published
a rule authorizing the Secretary of Labor to issue final decisions
sua sponte during or after BALCA. As of this date, no such
decisions have been issued, however, worthy of note is the fact
that the Secretary will only issue decisions based on record files,
because there is no provision for employers to reopen to provide
the Secretary with additional information or documentation.
In summary, the PERM Rule is weighted in favor of U.S. workers
whom the agency must protect, but it does so at the cost of minimal
Due Process for employers. A new Form 9089 has been proposed and
not yet approved by DOL which contains additional fields for
employers to fill in during the initial filing of the case, but
still affords no opportunity to upload or attach additional
documentary evidence. Without a level playing field for PERM, great
care must be taken to always go forward by establishing the most
comprehensive record file possible.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.