In a recent decision by administrative law judges, Accent-Media Productions, Inc., 2012-PER-712 (September 23, 2015), an application for Computer Programmer was denied because the Employer did not provide the Department of Labor with copies of emails it had sent to job applicants. The DOL had audited the application and included a request for evidence about contact with job applicants. In response, the Employer provided a recruitment report with the names of 17 referrals but only provided copies of email correspondence it had conducted with 8 of the 17 applicants.

The DOL denied the PERM application, because the Employer failed to provide the missing e-mails to prove it had contacted all the US workers.
The judges relied on a PERM regulation which states, “A substantial failure by the employer to provide required documentation will result in that application being denied.” 20 CFR 656.20(h).

The Employer filed a request for reconsideration in which it argued that
it need only provide copies of applications for labor certification and supporting documentation that it retained under Section 20 CFR 656.10(f) and an original signed ETA 909 if the PERM application was filed by mail under 656.17(a)(1), and that emails and other communications are not among the supporting items required by the regulation.

But in another part of the regulations, it states that the CO may ask for additional types of documentation if the request is reasonable and if the omission of same is sufficient to constitute a “substantial failure…to provide required documentation.” The judges used the “substantial failure” argument to uphold denial of the application.
The judges then held that the DOL’s request for emails met both the first prong of the test, that the emails were readily available to the employer, and the second prong of the test, that the documents were material, because they were needed to determine whether the remaining 9 US workers had been rejected for lawful, job-related reasons.

After the denial, the Employer tried to submit the missing emails by means of a request for reconsideration but ran afoul 20 CFR 656.20(3), a regulation which was added to the PERM Rule on July 16, 2007. It states that the only documentation that employers may provide in a Request for Reconsideration is documentation that the Certifying Officer himself had requested or documentation that the employer did not have an opportunity to present previously but that existed at the time the PERM application was filed and retained in the PERM Record File.

Put into plain language, after an audit an Employer may not overcome the defect of missing or important documentation by entering it into the DOL file as part of a request for reconsideration unless the Certifying Officer requests it. Since the CO did not ask for the missing information, the Employer had no right to submit it after the audit in the form of a Request for Reconsideration and the denial was upheld.

The PERM Record File includes the perm application and supporting documents that the employer must maintain for five years and is different from the the DOL's authority to request information at any time if the request is reasonable and the documents are material. There is actually no time limit for the DOL to request information, and there is another regulation that allows the DOL to invalidate a PERM approval at any time in the future “if the Certifying Officer finds the certification was not justified.” 20 CFR 656.32.

To summarize how the Information Time Line works:

  • DOL notifies the Employer of an Audit with a request for specific documentation.
  • The scope of documentation that the DOL can request in the audit is not limited to the PERM application and supporting documents (which must be retained for five years) but may also include a request for any other information.
  • In response to the audit, Employer may respond by filing the documentation requested by DOL and proffer any other documentation or information it wishes to provide.
  • Failure to submit information that is reasonably available and material is cause for denial if the omission of the information is a “substantial failure.”
  • If DOL denies for failure to provide information, the Employer may not file the requested information in the form of post-denial Request for Reconsideration because only the DOL can request the Employer to provide information after the completion of the audit.

While the decision in this case turns on the employer’s efforts to submit material documentation after the audit by means of a Request for Reconsideration, appeals to BALCA (Requests for Review) also do not permit the introduction of new documentation or new legal arguments that have not previously been provided in response to an audit or other specific request for information made by the Certifying Officer prior to final determination.

This restriction on the ability to supplement the record is generally unfamiliar to immigration stakeholders who practice under the regulations of the Department of Homeland Security and other agencies that normally permit petitioners to introduce new evidence and arguments at different stages of petition and visa processing. Aggrieved PERM applicants can challenge the legality of DOL regulations in federal court, but not before the administrative law judges.