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BALCA Upholds Denial of Incomplete PERM Application 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.1 In this case, the Employer filed an application for permanent alien labor certification for the position of Landscaper. On November 2, 2006, the Certifying Officer (CO) issued a letter denying the application because selections had not been made, or information had been omitted, on the ETA Form 9089 for Sections H-4, H-5B, I-4, J-13, K-1-, K-2, K-4, K-5, K-6, K-8 and K-9, and because of several notice and recruitment errors. (AF 13-15). On November 8, 2006, the Employer’s president requested review of the denial, arguing without elaboration that the Employer had complied with the regulatory requirements. In a letter dated November 9, 2007, the CO accepted the Employer’s reasoning in its request for reconsideration related to three sections, but found that the remainder of the deficiencies had not been cured. The Board docketed the appeal on November 13, 2007, and issued a Notice of Docketing on November 15, 2007.2 The Employer’s president filed a letter in which he stated that “[t]he cause of all these mistakes [is that] the people that filled the application for us in the beginning did not complete the entire application, [and] therefore, we are requesting the opportunity from the Board to review this case again.” The Employer attached a new ETA Form 9089 which appears to supply most of the information and selections omitted in the original application. DISCUSSION Clearly, the Employer’s application contained multiple omissions. Thus, the application was incomplete and subject to denial pursuant to 20 C.F.R. § 656.17(a)(1). On appeal the Employer does not deny that the application contained the omissions, but blames the persons who assisted it in filling out the application. Thus, we affirm the CO’s denial of labor certification. The submission of a corrected application to the Board does not cure the problem because the Board’s scope of review is limited to the record upon which the CO made her decision. 20 C.F.R. § 656.27(c). Rather, the Employer’s remedy is to file an entirely new application with the Certifying Officer. The copy of the Notice served on the Alien was returned by the U.S. Postal Service as undeliverable. ORDER Based on the foregoing, IT IS ORDERED that the Certifying Officer's denial of labor certification in the above-captioned matter is AFFIRMED. Back to Top |
