Minor Mistakes Can Cost You Big: PERM Denial Upheld for Minor Recruitment Report Mistake
The dreaded words no one wants to hear, “PERM is an exacting process.” The “exacting” process is designed to eliminate the back and forth between applicants and the DOL in order to create a more efficient process. Though this phrase should be outlawed at this point :-), it definitely encompasses the painstaking and detail oriented process that is PERM, where the DOL favors efficiency over fairness at times. A good example of this “exacting” process comes from a case decided by the appeals Board earlier this year: Simply Soup Ltd, 2012-PER-00940 (en banc decision, 01/13/2015).
The Employer filed a PERM application back in 2008. In 2011, the Department of Labor Certifying Officer (CO) issued an audit notification letter directing the Employer to submit certain documents. One of the required documents was the Employer’s Recruitment Report. In the Recruitment Report, the Employer was asked to “describe the recruitment steps undertaken.” (This means to tell the CO which advertisements were placed, where they were placed, the dates of placement, etc.). The Employer did not however describe the recruitment steps that they conducted. After review, the CO denied the PERM application for failure to describe the recruitment steps.
In its Motion to Reconsider the denial, the Employer argued that they left out the first page of the Recruitment Report by mistake when they responded to the audit; the missing first page described the recruitment steps that they conducted. The Employer also attached a copy of the missing document and asked the CO to excuse this mistake especially because the original audit response included all the copies of the advertisements that were placed. The CO refused to consider the missing first page of the Recruitment Report even though the Employer provided all the copies of the advertisements (The CO could have just looked through the ads to determine what ads were placed and when). The case was forwarded to the Board of Alien Labor Certification Appeals (BALCA) (This Board handles appeals for PERM denials).
On appeal and 3 years later, the Employer explained to BALCA that in its first audit response, they followed PERM rules and provided the CO with enough information to easily verify the recruitment steps that were conducted. BALCA did not agree with this argument. BALCA explained that although the Employer provided that information, the PERM rules plainly state that the recruitment steps must be described in the recruitment report.
This is a perfect example of the “exacting” PERM process. BALCA is pretty much saying: yes, you did provide evidence that the CO could have looked at and yes the CO could have figured out what recruitment steps were taken, but it’s NOT the CO’s job to fish through documents. BALCA is saying the burden is on the Employer and if the rules say to describe the recruitment steps conducted, then that’s what the Employer must do; anything less is unacceptable.
It was also argued that the CO cannot deny a PERM application where the Employer’s compliance with Recruitment Report requirements is so obvious from the documentation provided. The Employer argued that fundamental fairness requires the CO to request the missing documentation where the record clearly shows that the documents existed at the time the PERM application was filed. BALCA did not accept this argument either. BALCA explained that the PERM rules do not require the CO to request a more complete Recruitment Report where the Employer already had the opportunity to provide a complete report. Instead the PERM rules give the CO discretion to request further documentation.
It is true that the PERM rules do not require the CO to request or accept additional documentation that was initially left out of a response. But, the CO could have used his discretion to accept the document after the mistake was made known. Nevertheless, the CO chose to use its wide discretion to continue to deny the case and send it up to be heard by BALCA instead.
This in itself shows how exacting the PERM process is. The Employer went through years of effort to appropriately file this case in good faith; there was no ill intention here. I find it ironic that this exacting process is supposed to create efficiency for the government, yet it took over 5 years for a final determination to be issued on a case that could have (and should have) been approved years before. The good news is, in an effort to respond to the President’s Executive Actions, it looks like the DOL will be making some changes soon to modernize the PERM program through regulatory action: http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201504&RIN=1205-AB75 .