BALCA Holds That, Despite Typographical Error on ETA9089, Audit Materials Demonstrated Compliance

Before an employer may file an application under the Permanent Employment Certification (PERM) process, it must test the labor market to ensure that there are not sufficient U.S. workers who are able, willing, qualified, and available to perform the position for which the employer seeks certification. After this “recruitment” process is completed, the employer must file Form ETA 9089, Application for Permanent Employment Certification, with the U.S. Department of Labor (DOL).

On July 9, 2014, the Board of Alien Labor Certification Appeals (BALCA), issued a decision finding that although the employer in that case had made a typographical error on its Form ETA 9089, audit materials demonstrated compliance under the regulations and the typographical error on its own did not warrant a denial.

The employer in that case had erroneously stated incorrect job details on the Form ETA 9089. BALCA reviewed the audit materials retained by the employer and determined that they provided the correct job description.  BALCA emphasized the fact that the DOL had conducted an audit of the case and therefore the audit materials should have been considered in addition to the Form ETA 9089.

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