Introduction

Just like the unpredictable Roman ides, the date on which a Permanent Electronic Review Management (PERM) application must be filed is the cause of much confusion.

One section of the law states that a PERM application must be filed "within 180 days" of completing the advertising and recruitment campaign; while another states that it must be filed "within six months", which is more than 180 days.

Facts

In a recent case, the employer sent its application to the Department of Labour on the 178th day, which was a Friday. The courier could not deliver during the weekend because the Department of Labour was closed, so the application was delivered on Monday – the 181st day. If the applicable filing rule is six months, the application could be considered properly filed – even on the 181st day. However, if the applicable rule is 180 days, the application was arguably not filed within the necessary timeframe.

Generally, the date on which a document is effectively transmitted from one party to another may be the date on which it is sent or the date on which it is actually delivered or received; the PERM rule is unclear about which date should be used. Motions to reconsider and appeals are considered properly filed if sent on the 30th day, but responses to supervised recruitment and audits state that they must be "supplied" to the PERM officer no later than the 30th day. 'Supplied' usually means delivered, but this is also unclear.

Jurisprudence seems to follow the 'sent' rule more often than the 'received' rule, but there is no clear consensus. While electronic filing is instantaneous, the system may crash or be taken down for maintenance. This may be why the employer in this case couriered a hard-copy application to the Department of Labour.

The Department of Labour denied the case on the basis that it must receive an application within 180 days. The employer appealed, arguing that it had six months to do so; and that even if it had only 180 days, the best approach would be to consider the filing date to be the date on which the application was dispatched by courier.

Decision

Three judges considered the case on appeal. Two judges sympathised with the employer, while the third did not. The dissenter pointed out that the law on which the other two judges had based their decision was the law for professionals, and that since a stonemason is not a professional, their arguments were irrelevant.

Fortunately for the employer, the sympathisers outvoted the dissenter and the employer's application was approved, but only after a delay of more than four years – the approximate time it takes to appeal a PERM case.

Comment

While the dates in the PERM law appear to be no more precise than the colourful Roman calendar, a modern way to keep track of things is to use an online date calculator to determine the last day for filing. Employers should then allow several extra days to safely send an application to the Department of Labour.

For further information on this topic please contact Joel Stewart at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (joel.stewart@employmentimmigration.com). The Fakhoury Law Group website can be accessed at www.employmentimmigration.com.

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