Volume IX, Issue 5 October/November 2015

In This Issue
1. 'Harmless' Errors on Application Can Lead to Denial
2. United States Unemployment Rate October 2015
3. PERM Processing Times as of November 02, 2015

Clients' Comments Corner:
See what our clients are saying about us!

1. 'Harmless' Errors on Application Can Lead to Denial

Filing an application for a labor certification is a painstaking, detail-oriented process. The recent decision in the Matter of Guilbert Tex, Inc. (October 2015) illustrates just how crucial paying attention to detail can be. The Certifying Officer (CO) denied the employer’s application for labor certification because the employer listed dates on the ETA Form 9089 for the prevailing wage validity period that were less than the required minimum 90 days.

The employer listed the validity period as April 4, 2009 to July 1, 2009. The regulations at 20 C.F.R. § 656.40(c) require the validity period of the prevailing wage to be a minimum of 90 days. The employer explained that the expiration date had been incorrectly entered by mistake. It argued this was a harmless typographical error that did not affect the merit of the application, especially since the prevailing wage determination from the State Workforce Agency stated the correct dates. Because this documentation existed at the time of filing, the employer contended that a correction to the ETA Form should be allowed.

The employer cited HealthAmerica (July 2006) in its appeal to the Board of Alien Labor Certifications (BALCA). HealthAmerica was the first PERM-related case decided by BALCA almost ten years ago. It established that harmless clerical errors should not negatively impact an employer’s application where documentation exists at the time of filing to support that the employer has in fact complied with the regulations. In that case, the employer listed an incorrect run date for one of its required Sunday advertisements, entering a Monday date on the Form by mistake. The newspaper tearsheets that the employer submitted with its request to reconsider proved that the ad had actually run on a Sunday. BALCA did not consider the tearsheets to be “new evidence” because the employer is required to retain this documentation in the event of an audit.

This landmark case had long been upheld by BALCA in subsequent decisions until the Matter of Sushi Shogun (May 2013), in which BALCA concluded that “HealthAmerica has effectively been overruled by the promulgation of 20 C.F.R. § 656.11(b).” This regulation, included in the Final Rule of May 2007, prohibits an employer from modifying its application, in order to preserve administrative efficiency and prevent unnecessary costs. The Employment and Training Administration (ETA) explicitly referenced the HealthAmerica decision, stating that BALCA’s decision in favor of the employer was “inconsistent with the Department’s objective and the NPRM proposal that applications cannot be changed or modified after submission.” Furthermore, the ETA declared that “typographical or similar errors are not immaterial if they cause an application to be denied based on regulatory requirements.”

In spite of this stipulation, BALCA continued to uphold the “harmless error” exception until its decision in Sushi Shogun in 2013, which sent shock waves through the PERM community. In that case, the employer had mistakenly listed the prevailing wage on the ETA Form 9089 as $10.04 per hour. The correct wage should have been listed as $10.14 per hour. Although the prevailing wage determination demonstrated that this was a clear instance of clerical error, BALCA surprisingly upheld the denial on the basis of 20 C.F.R. § 656.11(b), noting that this was “unfortunate” for the employer.

It was upon that same basis that BALCA affirmed the CO’s denial in Guilbert Tex, Inc. BALCA cited the following regulations:

  • The employer is required to file an ETA Form 9089. 20 C.F.R. § 656.17(a)
  • Incomplete applications will be denied. 20 C.F.R. § 656.17(a)
  • Once an application is filed, requests for modifications to the application will not be accepted. 20 C.F.R. § 656.11(b)
  • A request for reconsideration may include only documentation received from the employer in response to a request from the CO or documentation the employer did not have an opportunity to present but which existed at the time of filing. 20 C.F.R. § 656.24(g)(2)

BALCA concluded that ultimately the “burden remains on Employer to submit a complete and accurate form” and that the CO has the discretion to deny corrections to the application in the “interest of administrative efficiency.”   

USADWEB understands the critical importance of filing a complete and accurate application for labor certification. We will continue to work with our clients to ensure that your advertisements are processed according to regulations and will provide you with the necessary documentation to support your filing.

2. United States Unemployment Rate October 2015

The unemployment rates around the country can greatly impact a company's decision to sponsor an application for labor certification. When unemployment rates are high, companies may elect not to proceed with the certification process. Rates can vary by state and industry. There are several states with jobless rates that are well below the national average. Employers in these states may be more available to sponsor employees. USADWEB is providing information on the current unemployment rates as a convenient tool to assist you as you prepare your cases. The unemployment rate, which had remained at or under 5.5% since February, decreased from 5.1% in August and September to 5% in October, according to the Bureau of Labor Statistics. This is the lowest level since April 2008.

3. PERM Processing Times as of November 02, 2015

PERM processing times are important to you and your clients. Therefore, each month USADWEB is pleased to be able to update you on the current processing times for reviews, audits, and appeals as reported on www.icert.doleta.gov:

PERM Processing Times
Processing Queue Priority Dates
Month Year
Analyst Reviews April 2015
Audits August 2014
Reconsideration Requests to the CO July 2015
Gov't Error Reconsiderations Current

The Office of Foreign Labor Certification (OFLC) is working diligently to reduce the Permanent Labor Certification Program's pending caseload. The dates on the above table reflect the month and year in which applications are now being adjudicated at the Atlanta National Processing Center. If you need assistance with an application that was filed more than 3 months prior to the month posted, you can contact the OFLC Helpdesk at plc.atlanta@dol.gov.

Clients' Comments Corner

I have worked with USADWEB since PERM was created. I have found that they are extremely efficient, knowledgeable, and responsive. I've had clients come in exactly 2 months before their 5th yr of H-1B ends, and we have to start the ad the day we take the case. USADWEB has managed to get it done the same day, even if I gave the ad to them on Friday afternoon. Also, all businesses are looking to cut costs and want the cheapest possible ads. Many of my clients are surprised by the ad costs. I heartily recommend USADWEB.



USADWEB, LLC. is an innovative advertising agency that understands the immigration needs of companies placing recruitment advertising for labor certification cases in PERM, supervised recruitment, and H2B processes. For more than a decade, we have helped law offices and companies all over the United States meet the Department of Labor's recruiting requirements. Take advantage of our expertise and relationships with publications throughout the country. Our knowledgeable staff has experience placing all forms of recruitment: newspapers, periodicals, journals, internet job search postings, campus recruitment, radio ads, and more. Contact a representative for more information on placing your ads today!

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USADVolume IX, Issue 5 October/November 2015

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