In a recent administrative law decision, Accent-Media Productions, Inc (2012-PER-712 (September 23 2015)), a Permanent Electronic Review Management (PERM) application for a computer programmer was denied because the employer did not provide the Department of Labour with copies of the emails that it had sent to job applicants.
The department had audited the application and included a request for evidence of contact with referrals. In response, the employer provided a recruitment report with the names of 17 referrals, but provided only copies of email correspondence that it had conducted with eight of the 17 applicants. The department denied the PERM application because the employer failed to provide the missing emails to prove that it had contacted all the US workers.
The judges relied on a PERM regulation which states: "A substantial failure by the employer to provide required documentation will result in that application being denied." (20 Code of Federal Regulations (CFR) 656.20(h).)
The employer filed a request for reconsideration in which it argued that the employer need only provide copies of applications for labour certification and supporting documentation that it retained in its PERM record file under 20 CFR 656.10(f) and 656.17(a)(1), and that email and other communications are not among the required supporting items.
However, another part of the regulations states that the certifying officer may ask for additional types of documentation if the request is reasonable and the omission of the documentation is sufficient to constitute a "substantial failure… to provide required documentation". The judges used the 'substantial failure' argument to uphold denial of the application.
The judges noted that the Department of Labour's request for emails met both the first prong of the test – that the emails were readily available to the employer – and the second prong of the test – that the documents were material because they were needed to determine whether the remaining nine US workers had been rejected for lawful, job-related reasons.
After the denial, the employer tried to file the missing emails with a request for reconsideration, but fell foul of yet another regulation which was added to the PERM rule on July 16 2007: the only documentation that employers may provide in a request for reconsideration is documentation that:
- the certifying officer had requested;
- the employer did not have an opportunity to present previously, but that existed at the time when the PERM application was filed; and
- is required to be included in the PERM record file.
Put plainly, after an audit an employer may not overcome the defect of missing documentation by providing it into the record as part of a request for reconsideration or appeal, unless the certifying officer asks for it. Since the certifying officer did not request the missing information, the employer had no right to submit it in the form of a request for reconsideration and the application had to be denied.
While the decision in this case turned on the employer's efforts to submit material documentation after the audit by means of a request for reconsideration, appeals to the Board of Alien Labor Certification Appeals also do not permit the introduction of new documentation and prohibit the introduction of new legal arguments that have not previously been raised in response to an audit or other specific request for information made by the certifying officer before final determination.
This restriction is unfamiliar to immigration stakeholders, who are usually able to introduce new evidence and arguments at different stages of petition and visa processing. Aggrieved PERM applicants can challenge the legality of Department of Labour regulations in federal court, but not before the administrative law judges.
For further information on this topic please contact Joel Stewart at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (firstname.lastname@example.org). The Fakhoury Law Group website can be accessed at www.employmentimmigration.com.
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