The labor certification process is extremely complex and requires very strict attention to detail. So much so that even a small and seemingly trivial mistake can cause the entire application to be denied. Many facets of the permanent employment certification (PERM) application must be absolutely perfect. It may not be enough for an attorney to have a complete mastery of the vast amount of complicated and seemingly convoluted law that controls whether a PERM should be approved or denied. Even when it seems the entire application and process were conducted perfectly, one small mistake that was missed can easily surface and destroy the entire project.
Once a mistake is made during the PERM process, there is likely no chance to go back and fix the error. Usually the only real way to fix it is to start all over again from the very beginning, which can be disastrous for the employer and employee. Especially when the employee’s H-1B visa status will expire soon.
Here is an example in the recent case of a PERM application that was filed for the position of a Japanese cuisine cook assistant. The PERM application was denied because the ETA 9089 contained a typographical error, In the Matter of Sushi Shogun BALCA 2011-PER-02677 May 28, 2013. The prevailing wage amount was off by 10 cents. The prevailing wage was $10.14 per hour, and this was the amount contained in the prevailing wage determination submitted by the employer, and the amount contained in the notice of filing (NOF). However, the PERM application form ETA 9089 incorrectly showed that the prevailing wage was $10.04 per hour, 10 cents less.
The US Department of Labor Certifying Officer (CO) denied the PERM application on the ground that the prevailing wage determination of $10.14 per hour did not match what was listed on the ETA Form 9089, which listed $10.04 per hour. The employer asked the CO to reconsider the PERM denial because it was a “minor typographical error” and “a clerical mistake of minor importance.” The CO upheld the denial on the basis that PERM regulations require the application to be complete and accurate to ensure the integrity of the PERM process.
The employer appealed the CO’s denial to the Board of Alien Labor Certification Appeals (BALCA). The employer argued that since the NOF listed the correct wage, and the newspaper advertisements and the State Workforce Agency (SWA) posting did not list the wage, potential job applicants would not have been misled by the error. The BALCA panel decided that federal regulation requires the PERM application to be complete and accurate, and it rejected the employer’s argument to judicially create an exception even when the error would seem to be inconsequential.
This case is but one of the many examples out there that a seemingly minor typographical error and mistake of minor importance can easily result in a massive delay of major importance that requires the employer to conduct the time-consuming process of recruitment all over again. So be sure that your PERM is perfect before you file it.