Compare and contrast 2 BALCA decisions on typos harmless v. violative errors
Comparing and Contrasting Two BALCA Decisions on Will Chinese Investors Actually Get Typographical Errors: Harmless v. Violative A Cutoff Date on (December 24,Bulletin? By Joseph P. Whalen the Visa 2012) By Joseph P. Whalen (December 20, 2012) .On December 21, 2012, BALCA issued two PERM decisions, which addresstypographical errors. OneThere are only 10,000 EB-5 Visas available annually Short answer is “yes”. appeal of labor certification denial was affirmed andupheld that figure includes dependent spouses and children. Given the reality and while the other was reversed and approved. Why the disparity? Well,one was substantive andmeans thatin a violation of the regulations and the of the situation, that did result there are really only 3,300 to 3,500 slots available for EB-5 investments annually. This means that once 3,300 toCertifying Officer (CO) cited the correct regulations to support the denial. The 3,500 I-526 Visa Petitions are filed, we will see a backlog. We came closeother case was deemed “harmless error” because it did not involve any actual last fiscal year and I predict that it will happen this fiscal year. As aviolation, the the federal fiscal year begins on October 1st and ends on contained reminder, actual wage offered exceeded the prevailing listed whicha typo and also exceeded the correct prevailing wage listed on the determination, September 30th.and the CO issued a denial that cited incorrect regulations.. In addition, the law sets per-country limits in addition to the overall limitBoth cases arethis category as a whole. Since China is the number one sending on visas in attached:. country, it is the one that will see a cutoff date listed in the Visa BulletinMax I.E.G., LLC 2011-PER-02711 (Dec. 21, 2012) (BALCA) Denial Affirmed before any other country. In all likelihood, those few who get backloggedNancy Adelman 20011-PER-02464 (Dec. 21,of the next fiscal year when the will only have to wait until the beginning 2012) (BALCA) Reversed allotment is renewed, however, this will have ramifications on how long the EB-5 investor’s money MUST be kept tied up in the project. They still need to be committed, at least until filing their I-829, and since the jury is still out as to whether they must remain entangled until I-829 approval, it is safest for the EB-5 investor to stay in the project until the I-829 is APPROVED. All of this boils down to taking your existing “exit strategy” and tossing it in the trash. Another reality to ponder is this: It soon will no longer make sense to try to limit projects to TEAs at the $500,000.00 level. It is a simple matter of supply and demand. Whenever, demand exceeds supply, prices go up and so should the number of offerings at the full $1,000,000.00 investment level. Think bigger. Merely because a project happens to be located in an area that would qualify as a TEA does not mean the project developer is required to offer units at the TEA rate. Demanding the full $1,000,000.00 means it will be easier to meet the number of required jobs because there will be fewer EB-5 investors needed in a project and fewer jobs will be needed in the aggregate. It might seem controversial now but, what about next year or the year after that when we reach 300+ Regional Centers and have a 2 year backlog for EB-5 visas? That’s my two cents, for now.
U.S. Department of Labor Board of Alien Labor Certification Appeals 800 K Street, NW, Suite 400-N Washington, DC 20001-8002 (202) 693-7300 (202) 693-7365 (FAX) Issue Date: 21 December 2012 BALCA NO.: 2011-PER-02711 ETA NO.: A-09043-27571 In the Matter of: MAX I.E.G. LLC Employer, on behalf of RENATO CHANG MASUBAY, Alien. Certifying Officer: William Carlson Atlanta Processing Center Appearances: Edwin R. Rubin, Esq. Law Office of Edwin R. Rubin East Brunswick, NJ For the Employer Gary M. Buff, Associate Solicitor Office of the Solicitor Division of Employment and Training Legal Services Washington, DC For the Certifying Officer Before: Calianos, Geraghty, McGrath Administrative Law Judges JONATHAN C. CALIANOS Administrative Law Judge DECISION AND ORDER AFFIRMING DENIAL OF CERTIFICATION This matter arises under section 212(a)(5)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(5)(A), and the “PERM” regulations governing alien labor certification found at Title 20, Part 656 of the Code of Federal Regulations (“C.F.R.”).
STATEMENT OF THE CASE On February 12, 2009, the Certifying Officer (“CO”) accepted for filing the Employer’sApplication for Permanent Employment Certification for the position of “Industrial Engineer –Project Manager.” (AF 34).1 The CO did not conduct an audit, but instead denied certificationon December 8, 2009 on grounds that “neither the earliest date listed for the recruitment nor thedate the application was filed is within the Prevailing Wage determination validity period” inviolation of 20 C.F.R. § 656.40(c). (AF 30-32). On January 7, 2010, the Employer filed a request for reconsideration. (AF 14-29). TheEmployer argued that the end date listed on the ETA Form 9089 for the PWD validity periodwas a typographical error and it submitted documentation showing that the actual end date wasJune 30, 2009, which is several months after the application was filed. (AF 15). The Employerargued that the CO should reconsider the application pursuant to HealthAmerica, 2006-PER-00001 (July 18, 2006) (en banc) and requested that the typographical error on the application beamended to reflect the actual end date. (AF 16-17). The Employer submitted exhibits includinga PWD showing an end validity date of June 30, 2009 and a fax from the State WorkforceAgency (“SWA”) confirming that the end date of the validity period was June 30, 2009. (See AF14-29). On September 6, 2011, the CO forwarded the case to BALCA. (AF 1). In the transmittalletter, the CO stated that it is the responsibility of the Employer to submit an application that iscomplete and accurate and that request for modifications to the application are not allowedpursuant to 20 C.F.R. § 656.11(b). On December 19, 2011, BALCA issued a Notice ofDocketing. The Employer filed a Statement of Intent to Proceed on December 22, 2011, and itsappellate brief on January 30, 2012. In its appellate brief, the Employer acknowledged that“there may have been some modification in the way the fundamental holding of HealthAmericashould be applied” but asserted that “this set of facts falls well within current parameters forcorrection of a typographical error.” (Er. Br. 4). The CO did not file a Statement of Position. OnSeptember 5, 2012, the Employer certified via email that the job identified on the PERMapplication is still open and available and that the alien identified in the application remainsready, willing, and able to fill the position. DISCUSSION Pursuant to 20 C.F.R. § 656.40(a), for applications submitted prior to January 1, 2009, anemployer must request a Prevailing Wage Determination (“PWD”) from the State WorkforceAgency (“SWA”). The SWA is required to specify a validity period upon issuing its PWD thatis not less than ninety days or more than one year from the determination date. Under 20 C.F.R.§ 656.40(c), the employer must either file its application or “begin the recruitment period”required by 20 C.F.R. §§ 656.17(e) or 656.21, within the PWD validity period. 20 C.F.R.§ 656.40(c); Karl Storz Endoscopy-America, 2011-PER-00040, PDF at 15 (Dec. 1, 2011) (enbanc). In the Employer’s ETA Form 9089, it indicated that the determination date for the PWDwas October 6, 2008 and the expiration date was January 4, 2009. (AF 34). The Employer1 In this decision, AF is an abbreviation for Appeal File. -2-
began the recruitment process on August 31, 2008 and filed its application on February 12, 2009.(AF 36, 41). The Employer acknowledges that on the face of the ETA Form 9089, the COcorrectly determined that certification could not be granted because neither the commencementof the recruitment period nor the filing of the application were within the validity period asrequired by 20 C.F.R. § 656.40(c). However, the Employer argues that the end date listed on theETA Form 9089 is a typographical error and the correct end date was June 30, 2009; thus theapplication was filed within the validity period in compliance with the regulation. The Employer requests that the typographical error on the application be amended toreflect the actual end date. However, under the regulations once an application is filed, requestsfor modifications to the application will not be accepted. 20 C.F.R. § 656.11(b). The burden ison the employer to ensure that it is submitting a complete and accurate application to the CO. 20C.F.R. § 656.2(b); All Ohio Filter Sales & Service Co., 2009-PER-205 (Apr. 7, 2010); AlpineStore Inc., 2007-PER-40 (June 27, 2007). The Employment and Training Administration(“ETA”) states in the preamble to the 2007 amendments to the regulations that the anti-modification rule “protects against certain program abuses, such as the submission of a formwith incomplete or inaccurate information.” ETA Final Rule, Labor Certification for thePermanent Employment of Aliens in the United States; Reducing the Incentives andOpportunities for Fraud and Abuse and Enhancing Program Integrity (“ETA Final Rule”), 72Fed. Reg. 27904, 27918 (May 17, 2007) (emphasis added). The Employer argues that its application should not be denied for a typographical error,citing to HealthAmerica, 2006-PER-1 (July 18, 2006) (en banc) as support. However,subsequent to the HealthAmerica decision, the ETA amended the PERM regulations. The ETArejected the argument that typographical errors are immaterial, noting that “typographical orsimilar errors are not immaterial if they cause an application to be denied based on regulatoryrequirements.” See ETA Final Rule, 72 Fed. Reg. at 27917. The ETA explicitly refutedallowing even one opportunity to correct “a non-substantive technical error” because the agencyfelt doing so would pose “a significant, costly drain on the PERM case management system andstaff.” Id. at 27917-18. Moreover, “in signing the application, the employer declares underpenalty of perjury that it has read and reviewed the application and the submitted information istrue and accurate to the best of its knowledge . . . . The fundamental responsibility to submit anapplication which does not contain typographical or similar errors remains with program users.”Id. at 27916. The Employer also argues that the evidence of the correct prevailing wage validity periodsubmitted with its request for reconsideration should have been considered by the CO because 20C.F.R. § 656.24(g)(2)(ii) permits submission of documentation existing at the time theapplication was filed that the Employer did not have an prior opportunity to submit. Thisargument is not persuasive. The Employer had the opportunity to submit the correct expirationdate when it filed its original application. Accepting the Employer’s information regarding thevalidity period of the PWD would constitute a modification of the application, which isprohibited under 20 C.F.R. § 656.11(b). ETA, Final Rule, 72 Fed. Reg. at 27916 (“To the extentthe BALCA favored allowing the employer in HealthAmerica to present evidence thateffectively changed the response to a question on the application, the BALCA’s approach is -3-
inconsistent with the Department’s objective and the NPRM proposal that applications cannot bechanged or modified after submission.”).2 We recognize that in many instances typographical or similar errors may occur.However, it is simply not administratively feasible for the CO to investigate the circumstances ofeach applicant’s errors. As such, because the Employer’s ETA Form 9089 indicates that theEmployer did not commence recruitment or file its application within the PWD validity period,we affirm the denial of labor certification pursuant to 20 C.F.R. § 656.40(c). ORDER IT IS ORDERED that the denial of labor certification in this matter is herebyAFFIRMED. For the Panel: JONATHAN C. CALIANOS Administrative Law JudgeBoston, MA2 The decision of Subashini Software Solutions, 2007-PER-43 (Dec. 18, 2007) cited by the Employer is easilydistinguishable from the present appeal and does not support the Employer’s case. In that case, the Panel found thatdenying an application because it did not contain the DOL logo violates fundamental fairness and due processbecause there is no regulatory or interpretative requirement requiring the DOL logo to be on the application. Incontrast, in this appeal the CO denied the application based on a clear regulatory requirement that an application befiled or recruitment commenced with the prevailing wage validity period. The Employer also cited to WashingtonHospital Center, 2010-PER-00720 (May 13, 2011), in which the Panel found that the CO abused his discretion inrefusing to consider whether the absence of the requested documentation in an audit was a mere oversight asopposed to an inability or refusal to produce the documentation. However, in rendering its decision the Panel inWashington Hospital relied on Luigi’s Restaurant, 2010-PER-00720 (May 13, 2011), and case law since Luigi’sRestaurant has established that the CO does not abuse his discretion by refusing to consider documentation includedin a request for reconsideration that the employer had a previous opportunity to submit. See De CaravalhoLandscaping Service, 2010-PER-00842 (Aug. 31, 2011); SAP Labs, LLC, 2010-PER-1233, PDF at 4 & n.3 (Nov.15, 2011); Lifestyles & Healthcare, Ltd., 2010-PER-471, PDF at 4 & n.2 (Feb. 4, 2011); Techdemocracy, LLC,2009-PER-00459, PDF at 5 (Nov. 16, 2010). -4-
NOTICE OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Order will becomethe final decision of the Secretary unless within twenty days from the date of service a party petitions forreview by the full Board. Such review is not favored and ordinarily will not be granted except (1) whenfull Board consideration is necessary to secure or maintain uniformity of its decisions, or (2) when theproceeding involves a question of exceptional importance. Petitions must be filed with: Chief Docket Clerk Office of Administrative Law Judges Board of Alien Labor Certification Appeals 800 K Street, NW Suite 400 Washington, DC 20001-8002Copies of the petition must also be served on other parties and should be accompanied by a writtenstatement setting forth the date and manner of service. The petition shall specify the basis for requestingfull Board review with supporting authority, if any, and shall not exceed five double-spaced pages.Responses, if any, shall be filed within ten days of service of the petition, and shall not exceed fivedouble-spaced pages. Upon the granting of a petition the Board may order briefs. -5-
U.S. Department of Labor Board of Alien Labor Certification Appeals 800 K Street, NW, Suite 400-N Washington, DC 20001-8002 (202) 693-7300 (202) 693-7365 (FAX) Issue Date: 21 December 2012 BALCA Case No.: 2011-PER-02464 ETA Case No.: A-08346-13243 In the Matter of: NANCY ADELMAN, Employer, on behalf of MARIA TERESA CRESPO, Alien. Certifying Officer: William Carlson Atlanta National Processing Center Appearances: Donald J. Weiss, Esq. Law Offices of Howard M. Rosengarten, P.C. New York, NY For the Employer Gary M. Buff, Associate Solicitor Office of the Solicitor Division of Employment and Training Legal Services Washington, DC For the Certifying Officer Before: Geraghty, Calianos, McGrath Administrative Law Judges COLLEEN A. GERAGHTY Administrative Law Judge DECISION AND ORDER REVERSING DENIAL OF CERTIFICATION This matter arises under Section 212(a)(5)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(5)(A), and the “PERM” regulations found at Title 20, Part 656 of the Code of Federal Regulations (“C.F.R.”). For the reasons set forth below, we reverse the denial of the Employer’s Application for Permanent Employment Certification.
BACKGROUND On January 6, 2009, the Certifying Officer (“CO”) accepted for filing the Employer’sApplication for Permanent Employment Certification for the position of “Household worker.”(AF 59).1 On October 29, 2009, the CO issued an Audit Notification, requiring the Employer tosubmit certain documentation, including the Prevailing Wage Determination (“PWD”). (AF 55-57). On November 30, 2009, the Employer responded to the Audit Notification, attaching itsPWD and other documents. (AF 18-54). On February 8, 2011, the CO denied the applicationbecause the prevailing wage rate and validity period listed in Section F of the Employer’s ETAForm 9089 did not match the information contained in the PWD submitted by the Employer.(AF 15-17). The CO cited to 20 C.F.R. §§ 656.10(c)(1), 656.40, and 656.41 as authority for thedenial. (AF 16). On March 2, 2011, the Employer submitted a request for reconsideration. (AF 3-14).The Employer explained that the discrepancies were a result of inadvertent typographical errorson the ETA Form 9089. (AF 6). The Employer stated that the error in the prevailing wage rate“was simply a transposition of the ‘7’ in the $9.76 to a ‘1’ in the $9.16 set forth on ETA Form9089.” (AF 6). The Employer stated that the dates of determination and expiration of the PWDwere also incorrectly entered on the ETA Form 9089. (AF 6). The Employer argued that theerrors were harmless and immaterial because it was in actual compliance with the regulations.(AF 6-7). On August 18, 2011, the CO forwarded the case to BALCA. (AF 1-2). Onreconsideration, the CO accepted the Employer’s information regarding the typographical errorfor the prevailing wage rate. However, the CO upheld the denial because the validity periodlisted on the ETA Form 9089 did not match the PWD validity period. The CO stated that the“[E]mployer failed to provide the PWD which corroborated with the information attested to onthe ETA Form 9089 with its audit response.” (AF 1). On November 18, 2011, BALCA issued aNotice of Docketing. On November 28, 2011, the Employer filed a Statement of Intent toProceed. Neither the Employer nor the CO filed an appellate brief in this matter. On September18, 2012, the Employer certified via email that the job identified on the PERM application is stillopen and available and that the alien identified in the PERM application remains ready, willing,and able to fill the position. DISCUSSION PERM is an attestation-based program. 20 C.F.R. § 656.10(c). When an employer filesan application for permanent employment certification, it must attest to various conditions,including that “the offered wage equals or exceeds the prevailing wage determined pursuant to§ 656.40 and § 656.41, and the wage the employer will pay to the alien to begin work will equalor exceed the prevailing wage that is applicable at the time the alien begins work or from thetime the alien is admitted to take up the certified employment.” 20 C.F.R. § 656.10(c)(1).According to Section 656.40(a):1 In this decision, AF is an abbreviation for Appeal File. -2-
The employer must request a PWD from the NPC . . . . Prior to January 1, 2010, the SWA having jurisdiction over the area of intended employment shall continue to receive and process prevailing wage determination requests in accordance with the regulatory provisions and Department guidance in effect prior to January 1, 2009.2 On or after January 1, 2010, the NPC shall receive and process prevailing wage determination requests . . . . The NPC will provide the employer with an appropriate prevailing wage rate . . . Unless the employer chooses to appeal the center’s PWD under § 656.41(a) of this part, it files the Application for Permanent Employment Certification either electronically or by mail with the processing center of jurisdiction and maintains the PWD in its files. The determination shall be submitted to the CO, if requested.Section 656.40(c) states, in relevant part, that the State Workforce Agency or NationalProcessing Center issuing the PWD must specify the validity period of the prevailing wage, and“employers must file their applications or begin the recruitment period . . . within the validityperiod specified.” Lastly, Section 656.41 of the regulations sets forth the requirements for anEmployer seeking review of a prevailing wage determination. In the CO’s denial letter, he cited to Sections 656.10(c)(1), 656.40, and 656.41 of theregulations as the authority for denying the application because the validity period on the ETAForm 9089 did not match the PWD validity period. (AF 16). However, the regulations cited bythe CO do not provide proper authority for the denial because the Employer did not violate anyof the requirements found in these sections. In accordance with 20 C.F.R. § 656.10(c)(1), theEmployer offered the alien a wage that exceeds the prevailing wage. Specifically, the wageoffered to the alien was $10.00 per hour, and this amount exceeds both the incorrect prevailingwage of $9.16 listed in the ETA Form 9089 and the correct prevailing wage of $9.76 in thePWD. (AF 47, 59). The Employer also maintained the PWD in its files and submitted it to theCO upon his request in the Audit Notification, as required by 20 C.F.R. § 656.40(a). (AF 47).Because neither the CO nor the Employer argues that the PWD itself is inaccurate, the provisionsfor review of the PWD in 20 C.F.R. § 656.41 are inapplicable. The Employer also complied with 20 C.F.R. § 656.40(c). The Employer commencedrecruitment for the job opportunity on July 20, 2008 and filed its ETA Form 9089 on January 6,2009. (AF 50, 61, 66). In the Employer’s ETA Form 9089, the Employer indicated that thevalidity period for the PWD was June 4, 2008 to September 2, 2008. (AF 59). Thus,2 The prior regulatory provision, which applies in this case, stated: The employer must request a prevailing wage determination from the SWA having jurisdiction over the proposed area of intended employment. The SWA must enter its wage determination on the form it uses and return the form with its endorsement to the employer. Unless the employer chooses to appeal the SWA’s prevailing wage determination under § 656.41(a), it files the Application for Permanent Employment Certification either electronically or by mail with an ETA application processing center and maintains the SWA PWD in its files. The determination shall be submitted to an ETA application processing center in the event it is requested in the course of an audit.20 C.F.R. § 565.40(a) (2007). -3-
recruitment commenced within the validity period as written in the application, meeting therequirements of 20 C.F.R. § 656.40(c) on the face of the application. In its audit responsematerials, the Employer submitted a copy of the PWD as requested, and the PWD showed thatthe correct validity period was November 17, 2008 to June 30, 2009. (AF 47). The Employer’sfiling date was within the validity period as set forth in the PWD, and thus the Employer is inactual compliance with 20 C.F.R. § 656.40(c). As such, the CO’s reason for denial is notsupported by regulations cited as authority, and the denial of labor certification was improper. Furthermore, there is no regulation that states that an application can be denied solelybecause of a typographical error. Denials based on typographical errors are only appropriatewhen the typographical errors have resulted in some violation of the requirements set forth in theregulations. See ETA Final Rule, Labor Certification for the Permanent Employment of Aliensin the United States; Reducing the Incentives and Opportunities for Fraud and Abuse andEnhancing Program Integrity, 72 Fed. Reg. 27904, 27917 (May 17, 2007) (“Typographical orsimilar errors are not immaterial if they cause an application to be denied based on regulatoryrequirements.”) (emphasis added); see also 20 C.F.R. § 656.24(b)(“the CO determines to eithergrant or deny the labor certification on the basis of whether or not: (1) The employer has met therequirements of this part.”). Here, because the typographical error in Section F of the ETA Form9089 did not result in a violation of any of the regulatory requirements, the typographical erroron its own does not provide a valid basis for denial. Thus, because the CO’s basis for denyingthe Employer’s application is not supported by the regulations, we reverse the CO’s denial ofcertification.3 See IAC Search & Media, Inc., 2011-PER-00845 (May 2, 2012) (reversing CO’sdenial based on similar facts). ORDER It is ORDERED that the denial of labor certification in this matter is herebyREVERSED and we direct the Certifying Officer to GRANT labor certification in this case. For the Panel: COLLEEN A. GERAGHTY Administrative Law JudgeBoston, MANOTICE OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Orderwill become the final decision of the Secretary unless within twenty days from the date of servicea party petitions for review by the full Board. Such review is not favored and ordinarily will not3 In the transmittal letter, the CO stated that the Tracking Number in the PWD does not match the Tracking Numberentered in Section F of the ETA Form 9089. Because the CO mentioned this additional discrepancy for the first timein the transmittal letter, we do not address it on appeal as the Employer did not have adequate notice of theadditional reason for denial. See Kay Mays, 2008-PER-00011, PDF at 5 (Aug. 27, 2008). -4-
be granted except (1) when full Board consideration is necessary to secure or maintainuniformity of its decisions, or (2) when the proceeding involves a question of exceptionalimportance. Petitions must be filed with: Chief Docket Clerk Office of Administrative Law Judges Board of Alien Labor Certification Appeals 800 K Street, NW Suite 400 Washington, DC 20001-8002Copies of the petition must also be served on other parties and should be accompanied by awritten statement setting forth the date and manner of service. The petition shall specify thebasis for requesting full Board review with supporting authority, if any, and shall not exceed fivedouble-spaced pages. Responses, if any, shall be filed within ten days of service of the petition,and shall not exceed five double-spaced pages. Upon the granting of a petition the Board mayorder briefs. -5-