Mr. Lee's Article - "Important Developments in Labor Certification Applications, Part III" as Published in World Journal on March 20, 2011

By Alan Lee, Esq.

Part 1 dealt with in the amount of detail which had to go into labor certification advertising and what was considered an employer ad.  BALCA ("Board of Alien Labor Certification Appeals" or "Board") decided that an employer ad covered not only newspaper and journal advertisements, but also other media "ads" such as internet postings and the employer's own website postings, etc.  Part 2 explained BALCA's view of the wage which must be placed on the labor certification job order and notice of filing, and asked whether the view is realistic where the alien is already on the job.  Part 3 will discuss the important case of Denzil Gunnels  in which BALCA rejected the Department of Labor's ("DOL") view that a PERM labor certification filing had to be letter perfect on submission and that its present regulations provided the only exceptions for an employer to submit additional evidence.  The case is also interesting in seeing how BALCA circumvented the Certifying Officer's acknowledged authority in reaching a positive result for the employer.

3.   BALCA huffs and puffs its way to a good conclusion affording more procedural due process in labor certification determinations. 

An important BALCA case, Denzil Gunnels (11/16/10), gives hope that labor certification applications do not have to be 100% perfect when submitted, and that there is room on reconsideration after denial for applications to be approved.  In the case, BALCA was faced with the twin obstacles of  a) the employer sending in a corrected ETA 9089 and legal argument after denial of labor certification when it requested review of the denial, and the Certifying Officer's forwarding of the case to BALCA without first treating it as a request for reconsideration, and  b) BALCA's limited review authority in that situation  The case was denied by the Certifying Officer under the regulation stating that incomplete applications will be denied, and BALCA was constrained on review from considering any evidence or argument that was not considered by the Certifying Officer in the labor certification determination.  In Denzil Gunnels, the employer did not fill out item M-1 of Form 9089 asking whether the application was completed by the employer, but in which a "no" answer would have required a preparer to complete a declaration in sections M-2 through M-5 certifying that to the best of his/her knowledge, the information in the application was true and correct, and that the preparer understood the penalties for furnishing false information or aiding, abetting or counseling another to do so.  A customer service coordinator completed and signed sections M-2 through M-5, thereby attesting that she and not the employer was the preparer.  The application was submitted on June 5, 2009, and denied without audit (DOL request for evidence) on February 23, 2010, leading to the employer's "Request for Review of Denial of Form ETA 9089" which included a new 9089 form with a filled in item M-1 and argument that its failure to check the box was inadvertent error. The employer also stated in its papers that it sought reconsideration by the Certifying Officer and not a formal appeal to BALCA.  The Certifying Officer subsequently filed a letter requesting, without elaboration, that the denial be affirmed and forwarded the matter to BALCA. 

The stakes involved are best understood through a look back at labor certification processing over the years.  Historically DOL has attempted to shut down exchanges between employers and DOL for the sake of speed after its implementation of the PERM (Program Electronic Review Management System) labor certification process in March 2005.  PERM succeeded previous programs that were seen as bogged down by constant communications between DOL and employers.  The earliest "Traditional" labor certification program consisted of submitting bare ETA 750 forms with all the recruitment to be done later, and was followed by the "Reduction in Recruitment" (RIR) program, under which employers pre-advertised and recruited in the U.S. job market before submitting the cases and asking for a waiver of further recruitment efforts.  PERM is generally an electronic program (mailed-in applications are still accepted but highly disfavored) with DOL believing that no interchange of communications between employer and DOL examiner and especially submission of additional evidence should be allowed.  Following PERM implementation, the first BALCA case, HealthAmerica (7/18/06), successfully challenged the letter-perfect requirement on due process and fundamental fairness grounds. In HealthAmerica, the employer had transposed two numbers on the 9089 form when filling out one of the dates that an ad ran in a newspaper, but proved the correct date by submitting the tear sheets. [Under PERM rules, employers must normally place ads on two different Sundays (do not have to be consecutive Sundays) in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity. The transposition of numbers in HealthAmerica generated an denial as the transposed date fell on a Monday instead of Sunday].  HealthAmerica stood for the proposition that applications did not need to be letter perfect when submitted and because PERM required employers to maintain records in support of the application, those records were constructively part of the administrative record and did not constitute new evidence barred by the PERM rules. DOL was unhappy with the HealthAmerica decision and sought to restrict its effect in a May 2007 regulation, "Labor Certification for the Permanent Employment of Aliens in the United States; Reducing the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity," 72 Fed. Reg. 28903 (May 17, 2007).  The regulation in part sought to eliminate modifications to the applications and sharply limited the bases on which employers could supplement the record. 

(g)(1) The employer may request reconsideration within 30 days from the date of issuance of the denial.

(2) For applications submitted after July 16, 2007, a request for reconsideration may include only:

(i) Documentation that the Department actually received from the employer in response to a request from the Certifying Officer to the employer; or

(ii) Documentation that the employer did not have an opportunity to present previously to the Certifying Officer, but that existed at the time the Application for Permanent Labor Certification was filed, and was maintained by the employer to support the application for permanent labor certification in compliance with requirements of § 656.10(f)

(3) Paragraphs (g)(1) and  (2) of this section notwithstanding, the Certifying Officer will not grant any request for reconsideration where the deficiency that caused denial resulted from the applicant's disregard of a system prompt or other direct instruction.
20 CFR Section 656.24 (g) (2007)

Denzil Gunnels shows BALCA rejecting DOL's rule for cases after July 16, 2007, that no additional evidence outside of what was required as part of the employer's record-keeping requirement can be submitted in a request for reconsideration. The new and corrected Form 9089 could certainly not be seen as part of the record-keeping requirement.  BALCA began by stating that HealthAmerica was a limited ruling and did not apply to bar other types of documentation, such as documentation of extrinsic facts that could defend against some other ground for denial.  The Board cited its decision of Monnalisa Pastry Shop (6/30/09) that a certified mail receipt could be considered showing when an employer sent documentation that the Certifying Officer deemed untimely; neither did the limits on the HealthAmerica ruling apply to evidence submitted on appeal solely to support a legal argument that was preserved.  There the Board cited CVS Rx Services Inc. (11/16/10) that evidence in support of a preserved legal argument was not the type of evidence covered by the reconsideration rule because its submission did not modify the content of the application.  Besides its own rulings, BALCA pointed out that DOL even after July 16, 2007, had contemplated its ability to waive the letter perfect requirement for applicants who could successfully show on reconsideration that the application represented a recruitment effort that actually complied with the regulations. The Board found further evidence that the amendments were not intended to completely foreclose grants of certification despite errors and ambiguities in the application in the Certifying Officer's pattern of requests for remands by BALCA for the purpose of additional processing, referring specifically to Jessie's Bake Shop (11/16/10) to permit consideration of documentation of the nature of the employer's business; Neuroassociates (11/16/10) to permit correction of a date; and Montessori of Alameda, LLC (11/16/10) for accepting the employer's clarification of the job listed in Section K of the 9089.  The Board further referred to a DOL statement that it understood that human error occurred in limited circumstances and that the Department believed it was capable of distinguishing between typographical or inadvertent errors and willful false statements.  BALCA then held that the Certifying Officer's discretion under its amendments could not be exercised to preclude an employer from the opportunity to be heard on meritorious arguments regarding its defacto compliance with the regulations. 

BALCA is an administrative body and constrained by regulation to only review legal argument and such evidence that was within the record on which the denial of labor certification was based.  Because the Certifying Officer forwarded the case to the Board without further developing the record, the Board had to find a way to return the case to the Certifying Officer as there was otherwise no authority to consider the corrected 9089 form or legal argument submitted after the Certifying Officer's determination.  It initially acknowledged the discretionary power of the Certifying Officer under regulation to reconsider the decision or treat it as a request for review.  BALCA then pointed to DOL  FAQ confusing instructions on how to request reconsideration or review saying that nowhere in the FAQ responses was it stated that an employer's failure to use the magic word "Reconsideration" would result in the application being placed in the BALCA queue.  It referred back to the HealthAmerica decision language that while the regulation gives the Certifying Officer discretion to treat any request for reconsideration as one for review, to do so with the effect of denying an uninformed employer its sole opportunity to develop the appellate record was an abuse of discretion, as well as an inefficient use of administrative resources.  The Board outlined the two tracks under which reconsideration is requested, the first with an audit allowing the employer to respond to issues raised by the Certifying Officer and the reconsideration based on evidence submitted in the audit response, and the second without audit and the reconsideration based on evidence of the type that would ordinarily be submitted in an audit response.  The Board stated that in the first instance, the Certifying Officer would not be found to have abused his discretion in forwarding the case to the Board on the ground that the Certifying Officer's action prevented the employer from perfecting the record for review.  An exception would be if the circumstances of the audit were not specific enough to put the employer on notice of the potential deficiency with its application where the type of documentation at issue was not the standard documentation submitted in response to an audit.  In the second situation, the Board said that analytical and procedural problems arise since forwarding the appeal file immediately to the Board had the effect of depriving the employer of its full opportunity to develop the record for appellate review where the type of evidence offered was the type that could have been considered by the Certifying Officer on reconsideration.  BALCA then held that a Certifying Officer will be found to have abused his or her discretion when treating what is substantively a request for reconsideration as a request for BALCA review where doing so would have the unsolicited effect of precluding the employer from developing the necessary factual record upon which the denial of certification is properly based under the amended regulations.

The author notes that upon remand, the Certifying Officer's choice of whether or not to accept the employer's corrected ETA 9089 and argument of inadvertent mistake in failing to check the box may not be that simple.  BALCA attempted to guide the debate below by stating that the employer's position is primarily a legal argument that inadvertent failure to check question M-1 on the form was remedied by the completion of the remainder of Section M which clearly advised the Department of Labor that the Form 9089 had been completed by someone other than the employer and that the Certifying Officer had elevated form over substance.  A major question may be whether the evidence and argument is the type that can actually be considered by the Certifying Officer as 20 CFR Section 656.24(g)(3) expressly prohibits a Certifying Officer granting any request for reconsideration "where the deficiency that caused denial resulted from the applicant's disregard of a system prompt or other direct instruction." In the issuance of the May 2007 regulation, DOL had noted that its new on-line system would "now generate an automated prompt, warning the filer that it may have entered erroneous information that may cause a denial of the application" and that similar manual mechanisms were in place to detect and correct errors on mailed applications and that "applications containing errors in contravention of system alerts are denied."  It also cautioned that requests for reconsideration seeking to correct applications containing such errors would not be granted. BALCA itself in HealthAmerica had suggested that if the employer had been provided an immediate feedback warning that its application did not make sense, it might not have found the Certifying Officer to have abused his discretion. The Board further acknowledged there that it had no authority to invalidate or rewrite regulation, but that it had the responsibility to interpret the meaning of regulations and decide whether they had been applied in individual cases consistent with procedural due process.

In perusing the current PERM online system, it is difficult to see how item M-1 could be bypassed as the system does not allow one to continue filling out items M-2 to M-5.  An employer can nevertheless fill out the last part, Section N dealing with the "Employer Declaration," but the system then gives the prompt, "Warning.  This application may not be approved for the following reason(s): Section M-1, Was the application completed by the employer is a required entry," and gives the filler an opportunity to continue or go back.  So if the form was filed online, either the present inability to continue with items M-2 to M-5 did not exist at the time of filing where there was a computer prompt, or a system glitch allowed the preparer to continue without correction where there was inability to continue, or the user was extremely computer literate and found a way around the disabling prompt.  The last possibility is far-fetched given the non-importance of item M-1.  If it is concluded that the employer disregarded a system prompt that was in place at the time of filing but still allowed continued completion of items M-2 to M-5 on the online form, will the Certifying Officer act humanely in approving the labor certification application anyway since the error was inadvertent and of little moment, or will he again deny the application based squarely on the regulation?  Such a latter result would not be in the best interests of fairness and justice to employers who comply de facto with the regulations. Nor would DOL appear in a positive light.  In looking at mailed-in applications, this author could not see any "similar manual mechanisms" in place to detect and correct errors - only the paper instructions to the 9089 application which merely state, "Select Yes or No to indicate whether the application was completed by the employer.  If you select No, questions 2-5 must be completed."  In case the application was submitted by mail, will the Certifying Officer argue that the instructions were sufficient notice to the employer?  If the Certifying Officer denies the case on remand for disregard of prompt or direct paper instructions, how will BALCA react if the employer chooses to request review  - this time with a full record? Will the Board recognize the fact finding of a disregarded prompt or paper instruction and uphold the regulatory violation as a valid ground for denial, or will it decide the appeal favorably to the employer under the substantial compliance doctrine? BALCA hinted that it might do the latter in its reference to the DOL statement on human error and DOL capability to distinguish between typographical or inadvertent errors and willful false statements.  Additionally while it stated that it might not find a Certifying Officer abusing discretion where there was a computer prompt, it said nothing about paper instructions insulating him or her.  The case may yet have more chapters before the end. 

Summing up Parts 1, 2, and 3, the Stakeholders Meeting with DOL touched upon the need to run ads which can identify the job opportunity to sufficiently apprise potentially qualified applicants of the job opportunity and the Board clarified in Credit Suisse that an ad included the additional steps of recruitment and not just newspaper or journal ads in Part 1.  In Part 2, BALCA decided in O'Brien & Van Stiphout et al that an employer must post a job at the offered wage afforded to the alien where the wage exceeds the prevailing wage in the area, an interpretation hopefully capable of regulatory reversal.  In Part 3 covering the important case of Denzil Gunnels, BALCA championed due process in labor certification determinations in holding out the opportunity for employers to submit additional documentation and argument even outside the contemplated scope of DOL regulation through a request for reconsideration with the Certifying Officer where there was inadequate opportunity to present them before either because an audit request was not sufficiently specific or the Certifying Officer abused discretion in forwarding a file directly to the Board in a non-audit situation where the employer sought reconsideration.

Copyright 2011 Thomson Reuters.


The author is a 30+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

Copyright © 2003-2011 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.