The Board of Alien Labor Certification Appeals (BALCA) recently ordered a PERM Labor Certification application to be certified following the Certifying Officer’s denial due to a salary range mismatch between the PERM application and the Notice of Filing.
In re Institute for Environmental Health, Inc., 2013-PERM-01963 (BALCA 2016) involved the classic PERM situation where a discrepancy between what was listed on the 9089 and prefilling recruitment/notice documentation leads to a denial. The employer in this case attested on the 9089 that the prevailing wage was $25,022.40 and that the offered wage was $25,023. However, on the notice of filing the employer listed a salary range of $25,023 to $34,837.
Given the exacting requirements of the PERM process lawyers generally aim to have their recruitment mirror the requirements listed on the 9089. The so called “matchy-matchy” doctrine has aided many lawyers navigating tricky PERM waters. In this case, BALCA ruled that the regulations is “clear and unambiguous” on allowing a salary range in the notice of filing even though the 9089 only listed the offered wage.
I suspect the Board’s action (three years after the initial denial) saving this PERM from floundering was well received by the employer. I also suspect that when counsel of record files another PERM case they will match their 9089 and recruitment / notices.
Even if one is ultimately correct and wins on appeal, knowing how cases are handled by DOL officers will save employers heartaches and legal fees. For guidance on your PERM application, contact Hammond Law Group.