- PERM denial reversed where employer made a clerical mistake regarding optional recruitment.
- Evidence employer held as part of PERM recordkeeping requirements is not new evidence for reconsideration purposes.
I. Issue & Summary of Decision:
The Board of Labor Certification Appeals (BALCA) on January 12, 2011 issued a decision in Hawthorn Suites Golf Resorts, LLC Case Number 2009-PER-00200, reversing the certifying officer’s (CO) denial of a PERM application where the employer committed certain clerical errors on the PERM application and on the PERM audit response. The employer’s audit response did include evidence of its compliance with the regulations nonetheless.
- Whether an employer’s error in the PERM application is mitigated when it submits proof in its audit response documentation of its compliance with the regulatory guidelines relative to the pre-PERM filing recruitment activities.
- Whether submittal of evidence previously held by the employer pursuant to the recordkeeping PERM regulations is considered “new evidence” barred for submittal with the application for Reconsideration.
BALCA ruled that despite an obvious error in the PERM application, denial of the PERM application is not warranted when the employer submits in its audit response evidence that it had complied in good faith with the regulatory directives regarding recruitment.
One of the optional recruitment steps allowed by regulations is the posting of an advertisement on the employer’s website. In this case, the employer stated in the PERM application that it had utilized the employer’s website as one of the optional recruitment steps it is undertaking on January 4, 2007. The USDOL audited the PERM application and the employer submitted proof of its website advertisement on January 5, 2007 which posted a wage less than the amount in the prevailing wage determination (PWD). In addition to the aforementioned posting, the employer submitted another website posting on the next day for a similar position with a range of wages wherein the bottom end of the range exceeded the prevailing wage. The CO denied the PERM application. The employer filed for reconsideration arguing that notwithstanding the error on the PERM application, the employer complied with the recruitment requirements by presenting evidence of the second website posting on January 5, 2007. The CO denied the reconsideration on the premise that the first advertisement listed a wage less than the PWD and that the employer is precluded by the regulations from submitting new evidence at the time of the application for reconsideration.
III. The Decision:
BALCA stated that in accordance with 20 C.F.R. § 656.24(g)(2) “[t]he request for reconsideration may not include evidence not previously submitted.” Citing HealthAmerica Case Number 2006-PER-1 decided in 2006, BALCA had ruled that documents submitted in support of an application for alien labor certification includes materials kept by the employer under the PERM recordkeeping regulations. Since the second website documentation clearly established the date on which it was printed (January 5, 2007) and since such advertisement included a correct wage range, the CO’s denial was an abuse of discretion.
Where an employer submits proof of its compliance with the PERM recruitment regulations as part of the responsive documents to an audit request and when such documents are part of those kept by the employer pursuant to the PERM record keeping provisions, such proof is not considered “new evidence” for purpose of an application for reconsideration. Notwithstanding a clerical error on the PERM application regarding the date of the recruitment, denial of the PERM application by the CO is not justified when the employer submits proof in its response to the PERM audit request and again in an application for reconsideration that it had correctly complied with the recruitment provisions of the PERM regulations.
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