Some Apples Fall Far From The Tree
The US Department of Labor recently issued two denials of PERM
certification to Apple, the first US company with a market value
above $700 billion.
In one interesting case upholding denial of PERM approval, the
Board of Alien Labor Certification (BALCA) cited important
principles relating to typographical errors on the application form
9089 filed with the labor department by employers. In reporting the
details of an alien worker’s experience gained over a period of
72 months with different employers, mostly abroad, the employer
mistakenly wrote only 69 months of qualifying experience. See
Apple, Inc., 2012-PER-03515 (April 24, 2017).
The PERM process was created at the end of 2004 to promote
expedited processing of applications which had previously been
backlogged as much as seven years. Some delays had been caused by
lethargic bureaucratic procedures, while others had to do with
corrections, modifications and supplements to existing record
files. The Department of Labor asserted that the new PERM process
would use a zero-tolerance policy for any kind of errors, thus
eliminating most reasons for long delays.
After the PERM process began, the very first case to be appealed
was HealthAmerica, in which an Employer had made a simple error on
the form by typing the wrong date of publication for a newspaper
advertisement. The regulations required two Sunday ads, but the
employer (who had indeed placed two Sunday ads as required) put the
date of the second ad eight days after the first date.
The mistake seemed to be so insignificant that the employer was
joined by the American Immigration Lawyers Association, which filed
an amicus brief to appeal the decision. They argued that
if the DOL applies a strict, zero-tolerance policy in its
determinations, the electronic on-line form provided to the public
should be user friendly to warn of data input errors. BALCA agreed
and held that denial of certification for a minor, non-substantive
error could not stand.
In 2008, however, DOL overcame BALCA’s lenient policy
towards typos by issuing regulations that specifically prohibit any
kind of correction to a PERM application after it has been
filed. Additionally, the new regulations prevent employers
from providing such documentation because “typographical or
similar errors are not immaterial if they cause an application to
be denied based on regulatory requirements.” DOL believed that
the correction of even the smallest typographical errors would be a
“significant and costly resource drain on the PERM case
management system and staff.”
In another case, Apple, Inc., 2012-PER-03516,
(April 24, 2017) decided the same day, BALCA upheld denial
of certification because the employer had not matched the
educational requirement (a Master’s Degree in Business,
Operations, Supply Chain, or a related field of study and
thirty-six months of experience) with the statement of the foreign
worker’s experience (a Master’s degree in Mechanical
Engineering).
The employer argued that the coursework of the worker in
graduate school, also listed on the form, required the same amount
of time, coursework and specialized education as a Master’s
degree in Business Operations, or Supply Chain, but the Board of
Alien Labor Certifications disagreed, holding that despite the fact
that the worker had equivalent coursework, “there is a
difference in being exposed to a few…related courses during
one’s graduate-level matriculation versus being immersed in a
full course load of business classes (or a Master’s level
business program) while in graduate school.”
Denial of the first Apple case was based on a clear
typographical error, while the second case was based on a subtle
interpretation of the foreign worker’s educational
qualifications of coursework in a field of study instead of a
formal college level degree in that field of study.
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