The Board of Alien Labor Certification Appeals has recently issued a potentially groundbreaking decision in Sushi Shogun, 2011-PER-02677 (May 28, 2013), directly overruling HealthAmerica, 2006-PER-00001 (July 18, 2006) (en banc). Sushi Shogun started with the filing of an ETA Form 9089, Application for Permanent Employment Certification, (“the Application”), for Labor Certification under 8 USC § 1182(a)(5)(A). The Application was filed on behalf of the alien Maria Ramos with the U.S. Department of Labor (DOL) pursuant to the regulations at 20 CFR Part 656. However, DOL denied the Application because the employer input the prevailing wage as $10.04 instead of correctly as $10.14. In appealing this decision, the employer pointed out that the correct prevailing wage was on the Prevailing Wage Determination. While BALCA acknowledged that this “was the result of typographical errors,” the employer’s challenge was precluded by 20 CFR § 656.11(b) prohibiting any modification of the ETA Form 9089.
The process for sponsoring a foreign national for permanent employment in the United States generally requires that an employer begin with the framework established by the Secretary of Labor pursuant to 8 U.S.C. § 1182(a)(5)(A), Section 212(a)(5)(A) of the Immigration and Nationality Act, in 20 CFR Part 656. This process, commonly known as the Labor Certification process, requires the employer to obtain a Prevailing Wage Determination from the DOL based upon which the sponsor will establish an offered wage for the job opportunity in the Application. In Sushi Shogun, the prevailing wage that was assigned by the DOL’s National Prevailing Wage Center was $10.14 per hour. With the PWD in hand, the employer proceeds with a series of recruitment steps that are prescribed by 20 CFR § 656.17(e), including a notice posted at the worksite to inform similarly employed U.S. workers that the employer is proceeding to submit an ETA Form 9089. Alternatively, when there is a collective bargaining agreement, this notice must be provided to the union leadership for the worksite of the sponsored position. Once these steps are completed, the employer must prepare its ETA Form 9089 online at DOL’s dedicated website for filing.
The problem in Sushi Shogun derives from what the employer described as the considerable amount of time that the DOL took before denying the Application. In the Federal Register notice promulgating the rules at 20 CFR Part 656, the DOL’s Office of Foreign Labor Certification stated that no changes of any kind would be allowed to the ETA Form 9089 because an application would be completely adjudicated within 45 to 60 days. As a result of that expeditious processing an employer would be able to re-file the Application while using the same recruitment efforts. In HealthAmerica, 2006-PER-00001, the employer argued that given the considerable expense of recruitment required to file an ETA Form 9089 balanced against the fact that the error on the Form was typographical in nature, the denial should be reversed. In reaching the HealthAmerica decision, the full complement of BALCA considered several factors: the evidently typographical nature of the error on the form itself, evidence prepared prior to filing the Application corroborating the nature of the error being maintained by the employer and that 20 CFR Part 656 was otherwise complied with. The HealthAmerica decision also considered the substantive due process test of Mathews v. Eldridge, 424 U.S. 319 (1976), balancing the public and private interest. The ability to overcome denials based on HealthAmerica has arisen in many circumstances involving an actual typographical error as in Sushi Shogun or when information is missing from the Application form.
The Sushi Shogun employer argued in its request for reconsideration that denial was unwarranted post-audit because the error, i.e., $10.14 instead of $10.04, “was a ‘minor typographical error’.” Id. at 2. The record included the PWD and the notice of filing that stated the prevailing wage correctly as $10.04. The Certifying Officer explained that correcting this error is prohibited by 20 CFR § 656.11(b): “Requests for modifications to an application will not be accepted for applications submitted after July 16, 2007.” DOL and the employer did not disagree over what was the prevailing wage, only whether the typographical error constituted a prohibited “modification.” Under HealthAmerica, issued before the May 17, 2007 promulgation of 20 CFR § 656.11(b), and its progeny issued after that date, this type of mistake was not held to constitute a “modification” prohibited by the regulation. Yet in Sushi Shogun, BALCA ruled that “[u]nfortunately for the Employer, HealthAmerica has effectively been overruled by the promulgation of 20 CFR § 656.11(b).” Id. at 3.
While Sushi Shogun states that this position is prescribed by the rule’s “plain language,” BALCA does not explain why it issued multiple decisions specifically based on HealthAmerica’s rationale that a typographical error does not warrant denial well after this regulation was promulgated. Such as in a case like Pa’lante LLC, 2008-PER-00209 (May 7, 2009). Pa’lante LLC involved an ETA Form 9089 that only included the sponsored worker’s experience with the filing employer. The worker, however, was satisfying the education requirement of the case based on an opinion that based on the education he had plus experience earned before joining the filer he had the equivalent to the required degree. The Application was denied by the Certifying Officer because it failed to show the worker had the “required minimum education, training, and experience prior to hire by the petitioning Employer.” Id. at 4. BALCA ultimately reversed the denial because evidence of the experience not listed on the form but used towards the degree equivalent was included in the materials prepared pre-filing pursuant to 20 CFR § 656.10(f) (imposing recordkeeping mandate on filers). BALCA’s reasoning stemmed directly from HealthAmerica and related to the typographical error holding of that case.
The Pa’lante panel quoted from HealthAmerica, noting that “the Employer’s omission on the Form 9089 was not a mere typographical error, but a failure to report information essential to the CO’s review of the application.” Pa’lante reversed the denial, about two years after 20 CFR § 656.11(b) was promulgated, holding the case was “is similar to HealthAmerica insofar as the documentation needed to prove that the application actually complied with the regulations was documentation constructively considered to have been submitted by the Employer under PERM’s recordkeeping provisions.” 2008-PER-00209, at 6.
At the end of the analysis of Sushi Shogun, the most obviously unanswered question is whether HealthAmerica’s application of the Mathews v. Eldridge substantive due process test to the adjudication of the ETA Form 9089 will survive to benefit another employer. If substantive due process does survive to bring another application back from denial, the challenge will be for BALCA to balance the reasoning warranting substantive due process with its decision in Sushi Shogun.
Adam Rosen is a Member of the Murthy Law Firm and a Supervising Attorney in the Special Projects Department. He represents companies and individuals before U.S. Citizenship and Immigration Services (USCIS), the Department of Labor (DOL), the Department of State (DOS), and various other government agencies with regard to both immigrant and nonimmigrant employment- and family-based applications and petitions.
This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.