When Programme Electronic Review Management (PERM) applications are denied, employers can file requests for reconsideration to the certifying officer in Atlanta or requests for review (appeals) directly to the Office of Administrative Law Judges in Washington, DC. The judges adjudicate decisions collectively under the aegis of the Board of Alien Labour Certification Appeals (BALCA). If a reconsideration is denied by the certifying officer, employers can still file an appeal to BALCA within 30 days.
In addition to the timely filing requirement, employers must carefully state the grounds for the appeal. A BALCA directive advises that appeals may be dismissed if the grounds do not contain sufficient detail.
Appeals may consist of a statement of position or a brief. While no definitions of these terms are provided in the PERM rule, the phrase 'statement of position' seems to encourage employers which do not have legal representation to file appeals in which they may make arguments in layperson's terms, while attorneys may be expected to prepare legal briefs.
Both statements and briefs must satisfy the requirements set forth in BALCA's one-page 1988 decision in North American Printing.(1) The decision states that "[t]he request for review shall… set forth the particular grounds for the request" (emphasis added).
An example of a request with inadequate grounds might state simply that the certifying officer ignored the law, that the law is unfair or that the denial was unreasonable. None of these statements constitutes 'particular grounds'.
However, if an employer stated that the denial violated a specific section of the PERM rule and why, then BALCA would have proper notice about the employer's particular grounds for appeal.
Appeals cannot include arguments that are not already in the record at the time of the denial or reconsideration. When the Department of Labour issues an audit, the employer must address all of the audit issues in its response. If the application is then denied, the employer may not introduce new documentation in its request for reconsideration, unless there was no opportunity to provide the documentation prior to the denial. This may occur when the Department of Labour gives a reason for denial that was not previously stated in the audit letter.
Furthermore, if an employer does not respond to all of the issues in an audit and then tries to file a request for reconsideration or appeal to make arguments that it neglected to include in the response to the audit, it is barred from raising any new issues.
Therefore, an appeal to BALCA is merely a review of the record file and is not an opportunity to introduce new facts or legal arguments. However, notwithstanding these narrowly defined appeal procedures, BALCA has often made decisions that are favourable to employers for meritorious cases.
A checklist for appeal along this basis might include the following:
- Is there any information or documentation missing from the record file that BALCA is unaware of?
- Did the Department of Labour raise an issue in denial to which the employer did not previously have an opportunity to respond?
- Did the Department of Labour abuse its discretion in issuing a denial without sufficient cause?
- Was there a misunderstanding arising from an inadequacy of the PERM Form 9089?
- Has the Department of Labour misapplied the law?
- Does the denial shock the conscience?
- Is the law itself vague, ambiguous or unreasonable?
- Was the employer unable to provide information requested for good cause?
- Was the audit language vague or ambiguous so that no reasonable person could understand its exact meaning?
- Was the denial based on simple typographical errors that did not affect the search for US workers?
Since PERM appeals are strictly construed, the best strategy is to avoid appeals entirely. Employers should always follow the regulations carefully and bear in mind that even typographical errors can result in irreversible denials.
For further information on this topic please contact Joel Stewart at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email ([email protected]). The Fakhoury Law Group website can be accessed at www.employmentimmigration.com.