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Court Upholds PERM Certification Despite CO Denial Citing Recruitment Violation

PERM applications must be meticulously perfect otherwise they may be subject to denial. Yet employers continue to file PERM cases with seemingly harmless discrepancies that can cause problems as shown below. Make sure everything is perfect before you file your PERM. 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.

In order to be eligible to apply for permanent labor certification (PERM), the employer must first conduct specific job recruitment steps as required by the Code of Federal Regulations. These regulations mandate employers to advertise the PERM position in newspapers of general circulation or in professional journals as part of the required job recruitment process. These advertisements are not permitted to contain any job requirements or duties that exceed those contained in the PERM application form ETA 9089. Applications that fail to comply with this regulation are subject to denial.

This rule was especially illustrated in the recent case Chabad Lubavitch Center, BALCA Case No. 2011-PER-02614, a case that decided the issue whether the regulation also applies to job orders as well as advertisements in newspapers and journals. Employers are required to place a job order with the local State Workforce Agency job bank (SWA) for the area of intended employment. The employer in this case posted the necessary SWA job order, which listed the job’s requirement of experience as “mid-career (2-15 years),” yet the PERM application form ETA 9089 listed the requirement of 2 years.

The PERM application was denied by the US Department of Labor Certifying Officer (CO) because it said the employer’s recruiting materials listed a greater experience requirement than was contained on the PERM application. The CO said that requiring job experience to be a range of 2 to 15 years exceeds the requirement of 2 years.

The employer filed an appeal with the Board of Alien Labor Certification Appeals (BALCA). The employer said to the Board that the SWA job order form only allowed three experience requirement options: entry-level intern (0-2 years), mid-career (2-15), and senior (15+ years), and that the employer was forced to choose between only one of those three.

The Board disagreed with the employer and said that having only three options to choose from on a job order form is not an excuse for failure to comply with the regulation that forbids perm recruitment advertisements from containing experience requirements higher than that on the PERM application form.

However, the Board said that the relevant regulation, 20 C.F.C Section 656.17(f)(6), does not apply to job orders. The court said that although job orders are advertisements and part of the PERM recruitment process, the text of the regulation says “advertisements placed in newspapers of general circulation or in professional journals,” and says nothing about job orders. Consequently, the Board reversed the CO’s denial and directed the PERM certification to be granted.

Although the employer prevailed here, and we have case law that establishes that job orders are different than advertisements published in newspapers and journals, the process of appealing a denied PERM can be costly and time-consuming. The entire problem could have simply been avoided if the employer made sure all advertisements matched the PERM application form. 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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