BALCA Questions Materiality of Omissions on the PERM Form

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

Certification was denied by the CO who cited that ETA Form 9089 was incomplete; specifically section F-4 (skill level) and M-3 (preparer’s title) had been left blank. A request for review was issued by the Employer who cited that the fields left blank were too minor to, “consider the form ‘incomplete’ and outright deny [the certification].” The Employer went on to further argue that in the past he had routinely left those same fields blank and certification had never been denied, therefore he should have the chance to correct the form. Included with the request for review, the Employer submitted corrected forms with the previously omitted fields completed. After the case was forwarded to BALCA and a Notice of Docketing was issued, the Employer filed a Statement of Intent to Proceed on April 23, 2010.

PERM regulation 20 C.F.R. § 656.17(a) controls and it provides that an Employer filing for labor certification on behalf of an alien must submit a fully completed ETA Form 9089 (Application for Permanent Employment Certification). Applications that are not complete or that have missing fields will automatically be denied.

In the instant case, the Employer argued that the omissions were so insignificant that they did not have bearing on the decision of certification. BALCA found that while regulation states all applications must be fully complete, “some omissions may not be material to the review of the substance of an application.” BALCA found that the Employer made a sufficient argument that the omissions were not material and were provided elsewhere on the form. Additionally the CO offered no argument as to why the omissions were needed in completing a sufficient review of the case to determine certification.

Accordingly, the Board vacated the decision of the CO in denying labor certification and returned the matter to the CO for completion of processing.