BALCA Reverses Denial of PERM Labor Certification Based on Omission

September 30th, 2013

In Saran Indian Cuisine, 2011-PER-01939 (August 27, 2013), BALCA held that the employer’s failure to submit a notarized statement attesting to its sponsorship of the alien did not constitute a substantial failure to provide required documentation pursuant to the PERM regulations.  The audit requested a notarized statement from the employer attesting to the sponsorship of the foreign worker.  The employer did not include such a statement in its response to the audit.  The CO denied the PERM labor certification based on the employer’s failure to provide the written notarized attestation.

BALCA found that the PERM labor certification was wrongfully denied under 20 C.F.R. §656.20(b), which states that a “substantial failure by the employer to provide required documentation” will result in a denial of the application.  It stated that it has consistently affirmed denials under 20 C.F.R. §656.20(b) when the “required documentation” that an employer omits in an audit response is documentation specifically identified in the regulations as necessary evidence for a particular attestation.  BALCA then referred to SAP America, Inc., 2010-PER-01250 (April 18, 2013(en banc), which further clarified what constitutes a substantial failure under 20 C.F.R. §656.20(b).  In this case, BALCA stated that when omitted requested documentation is merely supplemental documentation that is not specified by the statute, then such omission is not a substantial failure by the employer to provide required documentation.

BALCA applied SAP America’s reasoning to this case and found that the requested notarized statement was not documentation that was required by regulation and that the omission of such documentation did not materially affect the certifying officer’s (CO) review of the application.  It found that verification of the employer’s sponsorship was sufficiently satisfied by the employer’s signing the attestation on the Form ETA 9089 at Section N, since such signature is a sworn statement under penalty of perjury (20 C.F.R. §656.10(c)).

Therefore, BALCA held that the employer did not substantially fail to provide required documentation, reversed the CO’s denial and remanded the matter.