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CLARIFICATION ON PERM DOCUMENTATION DECIDED

By Ken C. Gauvey, Esq.

When sponsoring an employee for lawful permanent residency, the green card, the employer’s first step is typically the PERM application. The PERM application is a report submitted to the U.S. Department of Labor (DOL) attesting that the employer has made good-faith efforts to recruit U.S. workers. The DOL then reviews that report to determine if the position applied for warrants the employer hiring a foreign national and sponsoring them as a lawful permanent resident. Once the PERM application is approved by the DOL, the visa application can be filed with USCIS.

The PERM application is a hyper-technical document requiring specific language. Indeed, checking the wrong box on the PERM application can result in a denial without the opportunity to correct the mistake. Failing to include what has officially been referred to as “magic language” in the application, whether or not that language was in the actual job postings, can also result in denials. The PERM application itself is an 11 page document requiring careful preparation and scrutiny.

Once the application is submitted to the DOL, the DOL can approve, deny or audit the application. If audited, the DOL requires that the employer provide proof of all recruitment efforts.  Based on the documentation provided, the DOL can either approve, deny, or demand supervised recruitment, essentially requiring the employer to re-advertise under DOL supervision.

The DOL has taken significant liberties with audit requests. Indeed, the DOL has demanded documentation that is not required by the regulations themselves. As a result, employer who may have fully complied with the actual regulations have found themselves in situations where the PERM application is denied and a good and valuable employee is left without any recourse and must either find a new job or return home. Worse yet, in several instances, appellate bodies have approved the DOL’s actions.

On March 8, 2012, however, the Board of Alien Certification Appeals (BALCA), which is the appellate body that reviews the DOL’s conduct in PERM applications provided clarification on this matter. In the case titled In the Matter of A Cut Above Ceramic Tile, the DOL issued an audit for a PERM application. The audit demanded copies of all the advertisements the employer used to recruit. One of the mandatory advertisements is placement of the position in the State Workforce Agency’s (SWA) job bank. The employer, in accordance with the regulations provided the DOL with a copy of the completed Employer Job Order Information Sheet that was submitted to the State for placement on the State’s job bank website. However, the employer did not submit a printout of the actual website. The DOL denied the PERM application stating that the employer did not provide a “copy of the job order placed with the SWA serving the area of intended employment downloaded from the SWA Internet job listing site…” The regulation state, “[t]he start and end dates of the job order entered on the application serve as documentation of” the job order.  BALCA held that the regulations do not state that the actual printout from the website is required and so the DOL’s denial of the PERM application on this basis was improper.

To come to this decision, BALCA had to overrule its prior decision. In 2010, prior to the PERM regulations, a BALCA panel determined that the employer was required to provide proof of publication of the job with the SWA despite the language of the regulations. The March 8, 2012 decision pointed out that the issue of whether printouts from the SWA website was required was discussed and rejected in the rulemaking process of the DOL in implementing the PERM regulations. The earlier decision therefore, permitted the DOL to implement a new policy that was expressly rejected in the rule-making of the PERM regulations.  The Court finished with a footnote stating that if the DOL “wants an employer to retain such documentation, it needs to revise the PERM regulations along the lines of the H-1B regulations.”

Ken Gauvey is an associate at Offit Kurman and part of Offit Kurman’s Immigration Group. If you have any questions regarding the content of this article, or any other immigration issue, please contact Ken at 443.738.1559 or kgauvey@offitkurman.com.