PERM Form ETA 9089 Prevailing Wage Must Be Perfect

It may not be sufficient even to totally master the immense amount of complex law concerning the PERM application process. Even if the entire application and recruitment process are executed impeccably, except for one seemingly harmless little flaw, that flaw can result in a devastating PERM denial. The process of labor certification is very complicated and demands precise attention to detail. This article focuses on one such case. If you have questions about the PERM process and would like to consult with an attorney, contact The Law Firm of Shihab & Associates. We have over 50 years of combined legal experience in a wide variety of complex and immigration law matters.

An error can be catastrophic to a PERM application. Unfortunately, in most situations the only way to fix an error is to do the entire PERM application over again from the start, losing the time money and effort already invested. This can be especially bad when an employee’s H-1B status will soon expire.

PERM regulations require the application to be complete and accurate to ensure the integrity of the PERM process. One perfect example of this is shown in the case of In the Matter of Sushi Shogun, BALCA 2011-PER-02677 (decided May 28, 2013). In this case, the PERM application contained a seemingly harmless flaw. The prevailing wage amount that was listed in the application was off by a mere 10 cents. The prevailing wage for the occupation was $10.14 hourly, yet the PERM application form ETA 9089 erroneously listed that wage to be $10.04 hourly.

The US Department of Labor Certifying Officer (CO) denied the PERM application because the regulation requires that the prevailing wage listed on the ETA Form 9089 must match the prevailing wage determination. The employer argued that this was only a “minor typographical error” and “a clerical mistake of minor importance.” The CO did not agree and upheld the denial.

The case was appealed to the Board of Alien Labor Certification Appeals (BALCA). The employer based its appeal upon the fact that the notice of filing (NOF) listed the correct wage, and the wage was not listed in the newspaper advertisements in the State Workforce Agency (SWA) posting. Therefore, potential job applicants would not have seen the error and would not have been deterred from applying for the position.

The Board held that this is not the issue, and it rejected the employer’s argument. The Board held that there is no exception to this rule even when error would appear to be inconsequential.

This case is but one of the many unfortunate instances out there where a seemingly minor typographical error and mistake of minor importance will result in an enormous delay of major importance forcing the employer to conduct the time-consuming process of recruitment all over again. So make sure that your PERM is absolutely complete and accurate before filing it. If you would like further information about the PERM process or any other immigration matter, please contact our immigration attorneys at The Law Firm of Shihab & Associates, Co., LPA to schedule a consultation with an attorney at an office near you.

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