PERM Labor Certification - Not Open to Interpretation

11/09/2010

Underscoring that PERM (Program Electronic Review Management) is a system of bright-line rules that leave little, if any, opportunity to correct errors once an application is filed, the Department of Labor (DOL) held on October 27, 2010 that the failure to include the business name on the Notice of Filing (Notice) is fatal to the entire PERM labor certification application. A Notice posted pursuant to the basic PERM recruitment regulations must name the employer and direct applicants to report or send resumes to the employer.

The Department of Labor (DOL) initially found the PERM application lacking because the Notice failed to contain the Employer’s name and contact information “sufficient enough to allow applicants to apply for the position.” The appeal panel agreed that the Notice did not conform to the regulatory requirements even though it contained an attestation clause (perhaps added after the posting was complete) confirming its posting at the address of the job location and displaying the owner’s name (which also served as the company’s name), title and signature. The government emphasized that “Regardless of the context in which it is posted, the Notice must contain. . .the name and geographic location of the employer.”

Employers tempted to rely on a “common sense” defense, must remember that the PERM recruitment process is not always reflective of “real world” recruiting practices. The DOL takes the view that employers "are sometimes required to conduct recruitment in ways that are different from the manner in which they normally recruit, and which may seem unnecessary or unimportant in the particular employer’s circumstances." The panel explained that it is not administratively feasible for it to investigate each applicant's business to determine whether the information required in the Notice would be obvious in the context of the particular employer's business.

Providing background for its strict interpretation, the panel recalled that “the PERM regulations. . .sacrificed in-depth individual adjudication of applications for a faster and more efficient attestation process.” This trade-off seems rather unfair given that the last fiscal year began with a backlog of 67,000 pending PERM applications and a goal to reduce the backlog by only 50 percent by the end of September 2010.

PERM applicants have the heavy burden of preparing their applications with precision and maintaining complete supporting documentation. Anything less places the employer at risk of having to meet the seemingly insurmountable burden of proving that its error was inconsequential based on the circumstances.

The Haynes and Boone Immigration Practice will continue to monitor and report on DOL cases that interpret the regulations and impact how employers conduct the PERM recruitment process.

You may also view the alert in the PDF linked below.

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