Under the PERM Rule, employers are required to 'go forward' with carefully drafted applications, and, like most agency laws, the Rule was created and exists solely by authority of the Administrative Procedure Act (APA). In this article we will analyze two considerations: How and when the APA requires PERM employers to go forward with requests for alien labor certification while providing opportunities for consideration of rebuttals with documentary evidence.
The familiar, statutory pattern to provide Due Process is threefold: (1) applications are submitted to agencies, (2) agencies issue decisions, and (3) opportunities to provide rebuttal evidence are provided. However, there is a wide range of disparity which may be expected depending on the type of government and personal interests at issue.
The Travel Safety Administration is one example -- where the public interest to fly safely is greater than the individual's right to fly -- and the Department of Labor (DOL) is another, where the mission to protect employment conditions of U.S. workers may outweigh employers' needs for foreign workers. The right to immigrate through offers of employment is a civil matter where Due Process is limited by the need to protect the domestic workforce.
The next important points in time are the recruitment process and subsequent filing of results on Form 9089. Here employers must create and maintain detailed records of all the recruitment steps they take by preparing supporting documentation for every contingency.
'Going forward' also means that great attention must be paid to 100% accuracy on the Form 9089 to avoid even minute ministerial and typographical errors that can prove fatal. While some government agencies allow amendments and corrections after the filing date, but before issuing determinations, PERM does not. Consider the very first BALCA case, Health America, 2006-PER-0001 (BALCA July 18, 2006), where an employer properly advertised in two Sunday newspapers but reported the 7th and the 15th, instead of the 7th and the 14th, so that the wrong digit indicated the date of the second Sunday ad on the form.
With this simple typo, the second ad was seemingly placed not 7 but 8 days after the first. This error resulted in a denial without providing the employer an opportunity for rebuttal to prove that the ads had been placed correctly on two separate Sundays. The denial seemed unreasonable to many stakeholders -- so much so, that, acting on advice from the judges, DOL went on to improve Form 9089 with pull-down menus that automatically dissuade employers from typing the wrong date.
When audits do occur, in about 10% of cases, employers must go forward with their responses promptly. Audits often state conclusions, however, that are ambiguous or over-reaching, leaving employers no opportunity to reach out for clarification. Only after denials are issued may employers file Requests for Reconsideration but generally without the opportunity to introduce new evidence.
Upon denial of reconsideration, the only recourse is to file Requests for Review to BALCA, but, here again, PERM does not permit employers to introduce new evidence for consideration by the administrative law judges. Even new legal arguments are prohibited if they have not been previously set forth in the record.
A new feature was introduced on May 20, 2020, when DOL published a rule authorizing the Secretary of Labor to issue final decisions sua sponte during or after BALCA. As of this date, no such decisions have been issued, however, worthy of note is the fact that the Secretary will only issue decisions based on record files, because there is no provision for employers to reopen to provide the Secretary with additional information or documentation.
In summary, the PERM Rule is weighted in favor of U.S. workers whom the agency must protect, but it does so at the cost of minimal Due Process for employers. A new Form 9089 has been proposed and not yet approved by DOL which contains additional fields for employers to fill in during the initial filing of the case, but still affords no opportunity to upload or attach additional documentary evidence. Without a level playing field for PERM, great care must be taken to always go forward by establishing the most comprehensive record file possible.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.