The permanent labor certification process (also referred to as PERM) allows an employer to hire a foreign national to work permanently in the United States. Prior to filing a PERM application for a foreign worker with the U.S. Department of Labor (DOL), U.S. employers must conduct a cumbersome recruitment process to first attempt to hire a U.S. worker. Employers must also obtain a prevailing wage determination from DOL and certify that they will pay the sponsored employee at least the prevailing wage in the area of employment. The PERM application is filed via an online form that must list, among other things, the recruitment steps undertaken and the prevailing wage details.
It is imperative for employers to avoid any typos and inconsistencies on the PERM form. Clerical errors cannot be corrected after the PERM form is filed and could result in an irreversible denial. A recent decision by the Board of Alien Labor Certification Appeals (BALCA), which is responsible for reviewing PERM denials, emphasized the need for employers to ensure that the PERM form is flawless when filed. On September 29, 2015, BALCA issued a decision in Matter of Simona Luca Vricella, affirming a denial of a PERM application due to a clerical error by the employer. In Vricella, the DOL Certifying Officer (CO) denied a PERM application because the prevailing wage validity period, as listed on the PERM form, exceeded the one-year maximum period outlined in the regulations. The employer filed for reconsideration on the basis that it had made a typo on the PERM form, and that the actual prevailing wage period was shorter than the one year maximum. The CO denied the request and forwarded the case to BALCA for review.
BALCA refused to forgive the employer’s error and affirmed the CO’s denial. The employer cited a prior BALCA decision in Matter of Health America for the proposition that the clerical mistake on its application is harmless error and that it really did comply with the regulations. However, BALCA pointed out that the regulations were amended following the decision in Health America to prevent an employer from modifying its application. Therefore, the decision in Health America was not controlling in this case. While BALCA acknowledged the employer’s frustration as to the reason for the denial being clerical in nature, it decided that the CO’s denial decision was valid and supported by the record.
PERM is an exacting process in which employers bear the burden of proof. Failure to follow the PERM requirements closely may lead to denial, even after successful recruitment efforts have been completed. Therefore, we do not recommend proceeding with a PERM case without the benefit of experienced counsel.