The Programme Electronic Review Management (PERM) regulation states that a substantial failure by an employer to provide documentation requested by a certifying officer will result in denial of the PERM application.

In Spirent Communications Inc (3013-PER-2757, May 18 2017), due to a computer glitch, the last sentence of a job description on the PERM form had been cut off and omitted.

When the certifying officer audited the application and asked for a complete copy of the form, the employer tried to correct the deficiency by typing in the missing phrase.

Unsatisfied with the employer's segmental approach, the certifying officer denied the application, stating that an electronic mistake could not be forgiven and, according to the regulations, employers cannot make corrections to PERM forms.

The Board of Alien Labour Certification Appeals (BALCA) uses a two-part test(1) to assess the sufficiency of employer responses:

  • whether the certifying officer reasonably requested the documentation (ie, the documentation was readily, or at least reasonably, available to the employer); and
  • whether the omission of this documentation is material enough to constitute a "substantial failure... to provide required documentation".

BALCA agreed that the requirement to provide a signed copy of the form was reasonable and that failure to provide a complete copy would usually constitute a substantial failure. However, in this case, the employer provided an affidavit stating that it had typed the sentence on the form and that – but for the glitch – the form would have been complete.

The employer also pointed out that the missing language appeared elsewhere – for example, in the prevailing wage request under "part K" of the PERM form, where it had written the worker's experience in identical language.

Since the failure to submit an original, completed form appeared to be an electronic error, BALCA decided that the omission was not material and ordered approval for the employer.

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 PC website can be accessed at www.employmentimmigration.com.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.

Endnotes

(1) SAP America Inc (2010-PER-1250, April 18 2013 (en banc)); Accent-Media Productions Inc (2012-PER-712, September 23 2015).