DOL Ordered to Modify PERM Validity Dates in the Case of the Missing Labor Certification
In order to sponsor a foreign worker for a green card, an employer must usually submit an Application for Permanent Employment Certification (ETA Form 9089) to the Department of Labor (DOL). Once an application is approved, or “certified”, the DOL Certifying Officer (CO) who reviewed the case will issue an original labor certification on blue paper and mail this document to the employer or attorney of record. The labor certification will be valid for 180 calendar days and will need to be submitted with the I-140 Immigrant Petition during the 2nd step of the employment based green card process. An initial I-140 Petition cannot be submitted to the United States Citizenship and Immigration Services (USCIS) once the labor certification has expired.
But what if the original labor certification was never received by the employer and is no longer valid? Where there is no evidence that it was delivered, will the DOL then reissue a labor certification with new validity dates to allow an employer to timely file an I-140 Petition? This issue was discussed in a recent Board of Alien Labor Certification Appeals decision, Gazebo Contracting Inc., 2012-PER-02679 (BALCA August 12, 2016).
On September 24, 2009, an employer filed ETA Form 9089 with the DOL. The CO certified the employer’s application for the period beginning March 26, 2010 and ending September 22, 2010. On January 06, 2011 (after the labor certification had already expired), the employer sent a letter to the CO explaining that neither the employer nor its attorney received the original labor certification and requested documentation that would allow the company to file the I-140 petition. The CO denied this request and stated that the DOL would not grant an extension of the expiration date on a labor certification. The CO never specifically addressed the claim that neither the employer nor its attorney received the document.
In its Motion to Reconsider, the employer explained that it had no reason to ignore the labor certification because the employee was eligible for adjustment of status through a rare circumstance (Provisions of 245-i). The employer again requested a labor certification with dates that would allow it to timely file an I-140 petition. The CO determined that this was an untimely request and forwarded the case to the Board for review.
In its review of the case, the Board states that the CO was not entitled to a presumption of delivery of the labor certification to the employer without proof of its internal mailing procedures. The Board went further by stating that even if the CO was entitled to a presumption of delivery, it was a weak presumption and would be rebutted by the circumstantial evidence presented – (1) Statements made by the employer and employer’s attorney that the labor certification was never received, and (2) a lack of motive to not file the I-140 Petition. It was noted that nothing in the regulations prohibits a CO from issuing a labor certification with modified validity dates. Based on these circumstances, the Board ordered the CO to issue a labor certification with validity dates that would allow a timely filing of the I-140 Petition.