The US Department of Labour recently issued two denials of Programme Electronic Review Management (PERM) certification to Apple, the first US company with a market value above $700 billion.
In one interesting case upholding the denial of PERM approval, the Board of Alien Labour Certification (BALCA) cited important principles relating to typographical errors on the application form (PERM Form 9089) filed with the Department of Labour by employers (for further details please see "PERM Form 9089: what are normal job requirements?"). In reporting the details of an alien worker's experience gained over a period of 72 months with different employers, mostly abroad, the employer mistakenly wrote only 69 months of qualifying experience.(1)
The PERM process was created at the end of 2004 to promote expedited processing of applications which had previously been backlogged for as much as seven years. While some delays had been caused by lethargic bureaucratic procedures, others were the result of corrections, modifications and supplements to existing record files. The Department of Labour asserted that the new PERM process would apply a zero-tolerance policy for any kind of error, thus eliminating most of the reasons for long delays.
The first case to be appealed after the PERM process began was HealthAmerica, in which an employer had made a simple error on the form by typing the wrong publication date for a newspaper advertisement. The regulations had required two Sunday ads, but the employer (which had indeed placed two Sunday ads as required) had put the date of the second ad eight days after the first date.
The mistake seemed to be so insignificant that the employer was joined by the American Immigration Lawyers Association (AILA), which filed an amicus brief to appeal the decision. The lawyers argued that if the Department of Labour is to apply a strict zero-tolerance policy in its determinations, then the electronic online form provided to the public should be user friendly and warn of data input errors. BALCA agreed and held that denial of certification for a minor, non-substantive error could not stand.
However, in 2008 the Department of Labour overcame BALCA's lenient policy towards typos by issuing regulations that specifically prohibit any kind of correction to a PERM application after it has been filed. Additionally, the new regulations prevent employers from providing such documentation because "typographical or similar errors are not immaterial if they cause an application to be denied based on regulatory requirements". The Department of Labour believed that the correction of even the smallest typographical errors would be a "significant and costly resource drain on the PERM case management system and staff".
In another case decided on the same day, BALCA upheld denial of certification because the employer had not matched the educational requirement (a master's degree in business, operations, supply chain or related field of study and 36 months' experience) with the statement of the foreign worker's experience (a master's degree in mechanical engineering).(2)
The employer argued that the coursework of the foreign national in graduate school, also listed on the form, required the same amount of time, coursework and specialised education as a master's degree in business operations or supply chain. However, the Board of Alien Labour Certifications disagreed, holding that despite the fact that the worker had equivalent coursework, there is "a difference in being exposed to a few… related courses during one's graduate-level matriculation versus being immersed in a full course load of business classes (or a Master's level business program) while in graduate school".
Denial in the first Apple case was based on a clear typographical error, while the second was based on a subtle interpretation of the foreign worker's educational qualifications of coursework in a field of study instead of a formal college-level degree in that field of study.
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 PC website can be accessed at www.employmentimmigration.com.
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