How Rigid is PERM? Or, Can Typos be Fixed? - Anand G. Sinha

Anand G. Sinha, Aug. 29, 2016 - "In a recent decision, Matter of Cisco Systems, Inc. 2012-PER-01179 (June 9, 2016), the Board of Alien Labor Certification Appeals (BALCA) reaffirmed its hardline stance that modifications cannot be made to filed labor certification applications under Program Electronic Review Management (PERM). Although this decision hardly comes as a surprise as the mandate that PERM applications must be “letter-perfect” is commonly accepted, it serves as an important reminder to employers and practitioners alike, that the ETA Form 9089 must always be prepared with tremendous care and diligence. ... [T]his author has also anecdotally had a positive experience with a labor certification denial. A Request for Reconsideration was filed on a PERM denial issued without having been issued an audit. The underlying typographical error on the ETA 9089 concerned the wrong box checked off on question H.13 which asked if knowledge of a foreign language was required to perform the job duties of the position.  The employer inadvertently marked yes instead of no, and the CO denied the PERM on the grounds that it could not determine the actual minimum requirements of the position as there was no indication of the foreign national possessing knowledge of a foreign language.  In the Request for Reconsideration, the typographical error was acknowledged and the employer stated that a foreign language requirement was never an actual minimum requirement for the position.  The denial was clearly issued in error and fundamental fairness and good faith arguments won the day.  Despite the reality of strict compliance being the de-facto rule of law that particular PERM application was subsequently approved by the CO."