BALCA Approves PERM Case :
DOL Requests Return of Denied PERMs
Posted Aug 11, 2006
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The U.S. Department of Labor (DOL) Solicitor's Office sent a letter to the Board of Alien Labor Certification Appeals (BALCA) on August 2, 2006. The letter requested that BALCA return all denied PERM cases to DOL Certifying Officers (COs) for further review. This request was made after BALCA rendered its first decision in a PERM case that had been denied by the DOL. The BALCA decision, Matter of Health America, found that the DOL's COs had abused their discretion to deny a PERM case simply due to typographical errors, when the underlying evidence proved that the sole reason for the denial was such a typo.
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BALCA approved this PERM case, in part because the preamble to the PERM regulations stated that the PERM computerized system would assist PERM applicants by identifying obvious errors in their applications. In this case, however, there was no identification of an obviously erroneous date on the PERM application. Since there was no way in the PERM process for the employer to correct the error, BALCA found that "the consequences to the Employer were out of proportion with the mistake."
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DOL Requests Denied PERM Cases from BALCA
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In light of this decision, the DOL determined that there are likely other PERM denials that would meet with similar fates at BALCA, where the COs denied PERM applications for minor errors. Accordingly, the DOL has requested that all such cases to be returned to them, so that they can sort out and identify these cases. It is unclear whether BALCA will return the cases, or how quickly the COs will review the cases, if they are returned. While it may be easier to re-file some cases, others will need to go through this process of being sent back by BALCA and then being reviewed by the DOL, hopefully with a positive decision for the employer and employee. It is always best to speak with a qualified immigration attorney regarding case-specific facts, before determining whether to proceed with a motion to reconsider a PERM denial or to simply re-file in a particular case.