PERM Denial Reversed: DOL’s Own Fault for Employer’s Typographical Error
The Board of Alien Labor Certification Appeals (BALCA) issued a decision on January 08, 2016 that effectively blamed the DOL for the employer’s typographical error. As you may remember from one of my previous posts, typos are no laughing matter when it comes to PERM – Tips to Improve Your Chance at an Approved PERM Labor Certification. Although there are many BALCA cases that have upheld denials for innocent typos on ETA Form 9089 (AKA PERM Form), in this instance, fundamental fairness called for reversal of denial. In Matter of UBS Securities LLC (Jan 08, 2016) 2012-PER-00845, BALCA reversed the denial of labor certification, holding that a discrepancy between ETA Form 9089 and the Form’s instructions caused a clear typographical error.
The Employer in this case filed a PERM Form for the position of “Director, Derivatives Business Control Group”. The Employer listed the requirements on the Form as:
Primary Requirements: Bachelor’s degree and 60 months experience in the job offered
Acceptable Alternative: Master’s degree and 36 years of experience
Because of the huge discrepancy in the primary and alternative requirements, the Certifying Officer (CO) denied the case, stating that the alternative experience requirements were not substantially equivalent to the primary experience requirements- PERM regulations require that alternative experience requirements be substantially equivalent to the primary experience requirements . After denial, the Employer submitted a request for Reconsideration explaining that its alternate requirement was actually 36 months of experience, not 36 years of experience (how silly :-/ ). Of course, in true CO fashion, the case was forwarded to BALCA because the Employer was “attempting to modify the form.” (modifications are generally not allowed on ETA Form 9089).
On appeal, the Employer argued that the Form’s separate instructions contradict the directions found on the PERM Form itself. Specifically, the Form’s instructions for the particular section regarding alternate experience (H-8C) directs employers to enter the number of months of experience while the actual PERM Form directs employers to enter the number of years of experience. So, the Employer was in full compliance with the Form instructions. The Employer stated that it would be fundamentally unfair to allow a CO to ‘choose… which of its contradictory instructions it would like the employer to follow.’
BALCA acknowledged that the regulations prevent an employer from modifying the PERM Form. See 20 CFR §656.11(b) . But, BALCA reasoned that it would be fundamentally unfair to enforce this rule where the Form’s instructions obviously conflict with the directions found on the Form, where the Employer satisfies the instruction’s requirements in good faith. The inconsistency in instruction, BALCA continued, creates an impossible situation for the employer. BALCA stated, “Such inconsistencies must be construed against the promulgator of the form and/or instructions, not the applicant.’
I looked into the Form instructions, and it clearly directs an employer to enter the number of months of experience that is acceptable under the relevant Section. You can check out the discrepency for yourself by clicking on the links below 😀