What Did he Ask For?: Avoiding Appeals When a CO Asks for Too Much

A PERM petition may be audited and subsequently denied for issues that are not supported by regulation. Just because a PERM petition is audited and/or denied does not mean that there is a lawful reason for such action. Certifying Officers (the DOL employees responsible for adjudicating PERM petitions) sometimes act out of habit, make mistakes, or decide cases based on what they think is correct, even if it does not match regulations.

The good news is that with an experienced attorney these wrongful denials can be overturned through appeals. The bad news is that these appeals add large amounts of time, often years, to the green card process. Even if an appeal is eventually successful the amount of time lost due to arguing against a wrongful decision will be detrimental to both employer and beneficiary. Appeals are winnable, but the best option is to be so prepared that a denial is not a possibility and appeals not necessary.

Winning an Appeal vs. Not Having to Appeal

If you go into a case expecting to be randomly audited, and are fully prepared to document whatever step of the PERM process that may be looked into by a CO, the likelihood of a denial and subsequent appeal will be minimal. If you follow the regulations perfectly only, without additional information, you will likely win in the event of an appeal. But if you go beyond what is required from regulations and document everything that could possibly come up in adjudication, you will not even have to worry about appealing: you will be over prepared and easily respond to any request from a CO.

Think of it this way: You are riding your bicycle to your family’s house for dinner and you are stopped by a police officer. The officer asks for your driver’s license and proof of registration. But you are riding a bicycle! You don’t need these documents! The officer will not let you go and threatens to arrest you if you do not supply the documents. Eventually, after much stress and arguing, you are able to convince the officer that he/she is mistaken and that you do not need these documents to ride a bicycle. The officer finally admits his/her mistake and lets you go. You will still arrive at your family’s house. However, you will be very late for dinner and perhaps in a bad mood due to the hassle. You absolutely do not need a driver’s license or proof of registration to ride a bicycle. But if you had known beforehand that a slightly confused police officer might demand those documents from you, you could have carried them anyways and made it to your family’s house on time.

Sometimes the PERM process works the same way as the above example. You can argue until you prove yourself to be correct (which is valuable and sometimes necessary) or you can avoid the need to argue by anticipating all possible outcomes of an audit, saving yourself time, energy, and expenses. If a situation comes up where a CO’s decision is incorrect, that ruling should be challenged to ensure justice for employer and beneficiary as well as to maintain a standard of due process for government actions. But, in the best interest of the employer and beneficiary it is even better to avoid these situations where challenges may be necessary.

The Example of SWA Job Orders

When filing a PERM petition, most employers are required to post a job order with the State Workforce Agency (SWA) which has jurisdiction over the employer’s place of business. A SWA job order is one of three mandatory recruiting requirements for most PERM cases. In order to document a SWA job order, PERM regulations only require a petitioning employer to list on the PERM application form the dates the job order was run. Physical documentation of this recruiting tool is not necessary. COs often request such physical proof when adjudicating PERM cases, regardless of regulation.

Case Law Example: On January 31, 2008 an employer submitted a PERM application for an alien beneficiary. On March 11, 2008 the CO requested all recruitment documentation in support of the PERM petition, which the employer promptly supplied. On April 30, 2008 the CO denied labor certification because the employer did not submit a copy of the SWA job order. On May 14, 2008 the employer requested reconsideration and submitted a copy of the job order. Nearly 2 years later, on August 3, 2010 the CO maintained the denial because the employer did not submit the evidence when first requested. This issue eventually went to the Board of Alien Labor Certification Appeals (BALCA) on August 4, 2010. BALCA finally ruled in March of 2012 that proof of a job order is not required documentation that can be requested by a CO. BALCA confirmed that putting the dates of the job order on the PERM application is all that is required.

The BALCA decision in favor of the employer for the above example came on March 23, 2012! Over four years after initially filing a PERM petition! Winning an appeal is a great event, but four years is a long time to wait, especially if the incident could have been avoided. Had the employer either supplied copies of the SWA job order (even if not required by regulation) OR raised the relevant SWA job order regulation when responding to the audit this case would not have taken so long to be approved.

Conclusion

Each specific PERM situation will determine which option should be taken. But, in general, the best option is always to avoid, through extensive preparation, the need for an appeal. Covering all bases, going beyond what is required, building a comprehensive set of documentation, and knowing what may be expected for a CO all combine to ensure smooth and fast processing of a PERM application, even if audited.

There is certain amount of experience beyond regulations that can help expedite a PERM petition. A competent lawyer will know not only what supporting documents are required by regulation but also what documents may be expected by a CO, whether supported by regulation or not. Previous personal experience, case law familiarity, and knowledge of regulation are all necessary together to foresee what situations may arise in the process of getting a PERM petition approved.

It is always recommended that petitioning employer’s or potential beneficiaries contact an experienced attorney when considering PERM application. Such an attorney will have the required knowledge and foresight to navigate the potentially unseen and often non-regulatory hurdles involved after a PERM application is submitted for adjudication.

(Updated 10/2/2012 by AD)

References

Matter of A Cut Above Ceramic Tile, 2010-PER-00224 (March 8, 2012)

Matter of United Brothers USA, 2010-PER-01374 (March 23, 2012)

For more information on PERM Labor Certification, please visit our library on PERM Labor Certification and our recent PERM articles.