The Board of Alien Labor Certification Appeals (BALCA) has delivered its decision in Matter of HeathAmerica as being in favor of the Employer, holding that "although an agency may impose a rigid regulatory scheme to promote administrative efficiency, under the particular circumstances of this case, the ETA Certifying Officer’s ("CO") denial of reconsideration was an abuse of discretion. BALCA considered that "the CO’s policy not to consider mistakes made by employers is arbitrary and capricious and not supported by any regulatory language, regulatory history or decisional law." It is the first appeal docketed by BALCA under the regulatory method, the Program Electronic Review Management (PERM), made effective March 28, 2005 .
On June 29, 2005 , HealthAmerica submitted an online Application for Permanent Employment Certification (ETA Form 9089). The Department of Labor, Employment and Training Administration ( DOL ) does not allow a submission of ETA 9089 without accompanying documentation in support of the ETA Form. Due to a clerical error, the application contained an erroneous date indicating that the employer placed a Monday ad instead of the required Sunday placement, when in fact the employer had acted to place the ad on Sunday. On July 25, 2005 , nearly one month later, the DOL denied that the application indicated that a Sunday edition of the newspaper was available but was not used.
HealthAmerica submitted a timely Request to Reconsider/Review the denial, submitting a copy of the Sunday request sheet. On February 24, 2006 , DOL upheld the denial, stating that it could not consider the evidence submitted with the Request to Reconsider because, pursuant to 20 CFR §656.24(g)(2) such a Request may not include evidence not previously submitted.
Under DOL ’s explanation of the regulation, the employer’s record of evidence consists solely of ETA Form 9089. DOL asserted further that PERM has no method for correcting information after submission, and that denials will only be reversed upon Requests for Reconsideration when the mistakes were committed by DOL as its authority.
BALCA received the Appeal File from HealthAmerica on February 28, 2006 , and on March 9, the Board granted en banc review. At the heart of the appeal, BALCA asked all parties to specifically address the proper interpretation of 20 CFR §656.24(g)(2) as it applies to this case, as well as the relief available if it is determined that the CO should have reconsidered the application.
In regards to the Reconsideration motion, the CO argued that "under pre-PERM law the CO was only required to reconsider ‘when the motion is grounded in allegations of oversight, omission or inadvertence’ by the CO." The CO’s decision on reconsideration is based largely on FAQ No. 5, a FAQ posting on the PERM web site. The Board held that "although web site postings are a very powerful method of disseminating information…they are not a method by which an agency can impose substantive rules that have the force of law." Ultimately, the Board determined that the online FAQ was not "supported by PERM ’s regulatory history, nor consistent with notions of fundamental fairness and procedural process."
The Board looked to the language of CFR §656.24(g)(2), ruling that the section’s language determine that "documentation ‘submitted’ in support of a labor certification application constructively includes the materials held by an employer under the recordkeeping provisions of PERM." BALCA considered the problem and "injustice," since "the consequences to the Employer were out of proportion to the mistake."
