DOL Pulls Back Certifications Despite Due Process Rules in 20 CFR Part 656

The rule of law can be harsh or forgiving; it can be applied strictly or with discretion to forgive errors, especially those made unintentionally. The latest scandal of bureaucratic malfeasance that is slowly leaking out into the public realm is a series of approvals issued by the U.S. Department of Labor’s (DOL) Labor Certification program that were subsequently taken back. While DOL’s regulations direct the agency on what steps to take to revoke the approval of a Labor Certification application, it appears that the officials at the Office of Foreign Labor Certification (OFLC) instead decided to take the ‘oops-it-doesn’t-count’ approach.

The universe of people and employers impacted by this egregious violation of the law likely includes some who have filed an I-140 Petition based on that approved Labor Certification application, with some of those pending and others approved. The response to this blatant violation of the law should be employers taking DOL to court for the reinstatement of the original approvals effective from the original certification date.

DOL Email Giveth, DOL Email Taketh Away

Currently, DOL notifies an employer who’s filed a Labor Certification application by email that their case, filed on ETA Form 9089, is approved. In a still-unknown number of cases, an email was sent out to employers telling them that the approved Labor Certification was issued by mistake.

The Atlanta National Processing Center (ANPC) is sending this email concerning your application filed under the Permanent Labor Certification Program. The certification letter and certified ETA Form 9089 was sent in error, which was emailed on DATE to the employer’s contact and authorized attorney/agent (if applicable) listed on case A-#####-#####. You will be informed when a final determination is issued or if there is a request for information. Thank you.

While the email doesn’t say that DOL has decided to ignore 20 CFR §656.32, the email tells the employer that the particular application identified by its’ case number is pending once again. The DOL’s decision – whether to deny it or approve it (again) – will come at some future point in time…or maybe the employer will have to wait for the agency to first request more information before the Certifying Officer decides what to do with the case.

Slow Processing Makes No-Modifications Full of Hardship

In the university of immigration alphabet agencies, there is one agency that is known for being most unforgiving (at least among practitioners of employment-based immigration law). OFLC of the DOL strictly applies a no-modification policy on PERM cases filed with it. In other words, once a Labor Certification application is filed – overwhelmingly done online (the process is designed to affirmatively disincentivize filing the application by mail) – the DOL permits no changes to be made. While the agency has periodically updated the programming to add prompts warning of possible errors, they do not exist across the board and your ETA Form 9089 can and will be denied if you make a mistake. Even in administrative review of a denial by OFLC, the Board of Alien Labor Certification Appeals (BALCA) enforces the agency’s no-modification policy. No modifications means NO modifications. Yes, none. Nada. Zip. Zero. Zilch.

Anybody reading this might think that I am exaggerating. But I am not. At all. Whatsoever.

DOL Can Still Reverse Course & Fix It

Yet somehow OFLC, DOL, and the various officials employed processing these Labor Certification cases decided that while they demand 100% compliance with the regulations and their non-regulatory interpretations, it is unnecessary for the government to follow the rules.

I believe that Associate Supreme Court Justice Neal Gorsuch would have this to say to U.S. Department of Labor Assistant Secretary for ETA Jose Javier Rodriguez and his subordinates over at OFLC and the ANPC.

If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.

I don't think this quote will ever get old.