Can PERM Application Form ETA 9089 Be Filed With a Minor Clerical Error?

eraser-428206-m.jpgIn many areas of law, attorneys have the benefit of a legal doctrine that allows for a minor clerical error in certain legal documents if the error is determined to be minimis and immaterial to the substance of the matter. However, certain areas of immigration law do not allow for this doctrine, especially when it comes to permanent labor certification (PERM) applications. Although there are past examples of PERM application errors being excused, in recent years, the US Department of Labor and the Code of Federal Regulations have been cracking down on employers who make even the tiniest errors on their PERM applications.

There is a recent BALCA case that is directly on point. In the Matter of Apt-Advanced Polymer Technology, decided September 13, 2013, is a case where the employer’s PERM application form ETA 9089 contained an error in one of the boxes, specifically box “I.d.” The application incorrectly stated that the employer used three separate recruitment advertising methods: the company’s employee referral program, a job search website, and the employer’s own website. After an audit initiated by the US Department of Labor, the Certifying Officer denied the application.

In response to the CO’s denial, the employer requested the CO to reconsider, and explained that although the application misstated the methods used to advertise the job opening, the employer did actually use other methods that did comply with regulations. The employer argued that the error was a mere clerical mistake, and therefore it was de minimis and immaterial to the substance of the application. The CO still denied certification.

On appeal to the Board of Labor Certification Appeals (BALCA), the CO’s denial of certification was upheld. The BALCA noted that the employer relied on previous case law that allowed such clerical errors to be forgiven. And the BALCA cited newer case law and regulations that contradict an override that previous case law. These newer rules do not permit such clerical errors even when they are de minimis and immaterial to the substance of the application.

In its decision, the BALCA explained that the reason these new rules were created was to streamline the PERM certification process. It noted that in the past, PERM application processing was slowed by allowing employers to submit additional evidence and corrected PERM application forms in order to correct such de minimis and immaterial clerical errors. The BALCA said that such clerical errors cannot be de minimis and immaterial to the PERM application process if they trigger a CO audit and necessitate additional CO reconsideration. Also, the BALCA said, allowing for an employer to file a new application to fix such errors slows down the process even more. It recognized that such strict rules are necessary to encourage employers to file a “letterperfect” PERM application the first time that is free of errors.

The most important thing that can be taken from this case is that a competent and experienced immigration attorney can easily avoid PERM application denials, like the one in this example, by appreciating the importance of filing every PERM application correctly and perfectly without any errors.

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