Remanded – Did the CO elevate form over substance?

Posted On: August 10, 2011

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Electrical Helper.”

A selection was not made for Section M-1, which concerns whether or not the application was completed by the Employer. The CO denied certification citing the omission of a response for Section M-1. The Employer requested reconsideration or review of the denial and submitted an amended form. The CO did not reconsider its decision and the case was forwarded to BALCA on April 30, 2010.

PERM regulation 20 C.F.R. § 656.17(a) provides that incomplete applications will be denied. Further PERM regulation 20 C.F.R. § 656.11(b) provides that once an application is filed, requests for modifications to the application will not be accepted.

In the instant case, the facts as presented are similar to those found in a 2010 BALCA decision, Gunnels, 2010-PER-626 (November 16, 2010) where an Employer had neglected to check the box in Section M-1, but similarly provided a preparer’s name and signature, thereby signifying that someone other than the Employer had filled out the application. In Gunnels, the Employer made a request for reconsideration, but titled it “Request for Review”. In that decision, the BALCA panel determined that the CO abused its discretion and elevated form over substance in refusing to reconsider the denial. Here, the Employer merely neglected to check a box in M-1, but provided the preparer’s name and signature. Whether the CO abused his discretion depends upon whether he denied the Employer the opportunity to be heard on its legal argument.

Accordingly, the Board remanded to provide the CO the opportunity to reconsider the issue.