Harmless Errors on Application Can Lead to Denials

From: USADNEWS Volume IX, Issue 5 October/November 2015

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.