The permanent labor certification process (also referred to as PERM) allows an employer to hire a foreign national to work permanently in the United States. Prior to filing a PERM application for a foreign worker with the U.S. Department of Labor (DOL), U.S. employers must conduct a cumbersome recruitment process to first attempt to hire a U.S. worker. The PERM application is filed via an online form that must list, among other things, the recruitment steps undertaken and the minimum requirements for the position.
In Matter of DNP America, the Board of Alien Labor Certification Appeals (BALCA), which is responsible for reviewing PERM denials, addressed a situation in which the layout of the PERM form caused the employer to appear incompliant with the regulations, resulting in a denial. The employer correctly answered a question in one of the form’s fields that it was not requiring experience in the job offered. It instead answered in another field that it would accept experience in an alternate occupation. The form does not contain a field allowing the employer to indicate that it “requires” experience in an alternate occupation – only a field requesting if the employer would “accept” such experience. DOL denied the case arguing that the employer listed requirements higher than what was listed on the form, because the advertisement contained an experience requirement. The employer requested review by BALCA, arguing that it did not require experience specifically in the job offered, which is why it instead checked the box that it would accept experience in a similar, alternate occupation.
BALCA reversed the denial, reasoning that the deficient format of the form, which can give the appearance that an employer was not in compliance with the regulations, is not a sufficient basis for a denial. BALCA found that the format of the form in DNP America and DOL’s broad interpretation of the question posed in the field regarding experience in the job offered is largely responsible for the denial. Accordingly, BALCA ordered the DOL to grant the Labor Certification.
This case is different from the situation we discussed in a previous blog post, involving a typo on the PERM Form. In that post, we discussed a BALCA case holding that an avoidable typo by the employer is a sufficient reason for a PERM denial, unlike an error caused by the form’s deficient format. Therefore, if an employer has faced a PERM denial based on an error, it is important to evaluate the cause of the error. If it can be argued that the error was triggered by an issue with the form’s layout, then it may be worth requesting reconsideration or review by BALCA instead of refilling the case.
PERM is an exacting process in which employers bear the burden of proof. Failure to follow the PERM requirements closely may lead to denial, even after successful recruitment efforts have been completed. Therefore, we do not recommend proceeding with a PERM case without the benefit of experienced counsel.