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Seminal BALCA Decision HealthAmerica is Overturned

August 27, 2013

The Board of Alien Labor Certification Appeals (“BALCA”) recently held that under current Federal Regulations an employer filing an application for Permanent Employment Certification (“PERM”) may have little recourse in amending the application if the document contains what may be a minor typographical filing error. Previously, under the seminal BALCA case HealthAmerica, minor typographical errors would be excused on PERM filings (minor corrections accepted after filing), and the employer would not be required to repeat the recruitment and filing process.

The error In the Matter of Sushi Shogun, decided May 28, 2013, concerned the information listed in ETA Form 9089 for section F (the prevailing wage amount) which did not match the amount contained in the Prevailing Wage Determination (“PWD” ETA Form 9141) that was submitted with the application. The prevailing wage on the PWD was $10.14 per hour, yet the prevailing wage placed into the ETA Form 9089 was $10.04.

Federal Regulations require the employer to certify in PERM applications that the “offered wage equals or exceeds the prevailing wage.” In this case the offered wage listed on the ETA 9089 of $10.04 did not equal or exceed the prevailing wage determination for the position, which was $10.14. For this reason the application was denied.

Despite the employer’s argument that the error was “a clerical mistake of minor importance,” per HealthAmerica, BALCA found that the denial of the application was valid.

Furthermore, BALCA noted that the $10.04 amount was “likely” mistyped by whoever filled out the ETA Form 9089; however, under current regulations, specifically 20 C.F.R. §656.11(b), “requests for modifications to an application will not be accepted for applications submitted after July 16, 2007.” In sum, BALCA stated that the denial of the application was proper, and the only recourse the employer has to correct its mistake is to re-file the application including re-initiating the time consuming recruitment process.

This is a landmark case for PERM applications effectively overruling HealthAmerica, and clearly establishes BALCA’s support of the policy that applications filed after July 16, 2007 must be error free when filed.