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In Matter of HealthAmerica, the Board of Alien Labor Certification Appeals (BALCA) decided that the U.S. Department of Labor abused its discretion in denying a PERM labor certification application due to a typographical error. However, recent BALCA decisions indicate a trend away from HealthAmerica and toward a "zero tolerance" of any kind of error in either the PERM application itself or in the required PERM audit file that employers must compile.
In Matter of Hawaii Pacific University, BALCA affirmed denial of a PERM application because the employer had provided the incorrect address on the notice of posting during the recruitment process. The address was a correct Department of Labor (DOL) regional office address, but not the one which the employer should have listed. BALCA said that even though the DOL office listed by the employer could have forwarded any complaint to the correct DOL office, the regulations state that the employer should have listed the address of the "appropriate" office which was no longer the one that the employer listed. BALCA effectively held that listing the regional office by mistake was inexcusable.
In Matter of Noll Pallet & Lumber Co., the employer mentioned in its print advertisement that the employer conducts criminal and background checks of job applicants. The employer did not specifically mention these checks on the PERM application form that it filed with DOL. BALCA decided that the print advertisement (that referred to these checks) was more restrictive than the PERM application, which was a fatal violation of the regulations.
These decisions are representative of a zero tolerance approach to PERM applications that coincides with the economic recession and the stubbornly high unemployment rate. Because many of the denied cases took years to wend their way through the PERM process and then further time for a BALCA appeal to be decided, employers and their employees unfortunately have one more thing to worry about.
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