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May-June 2012

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SPOTLIGHT by Jonathan L. Moore Getting Queued Up: The Nuts and Bolts of 'Government Error' Motions T the process culminates in a denial, especially when the denial is based on an obvious factual or legal er- ror by the Department of Labor (DOL). An impor- tant tool for addressing these errors is the "govern- ment error" queue for motions to reconsider. What is the Government Error Queue? When an employer files a motion to reconsider a he PERM labor certification process is gruel- ing and tedious. As a result, it is deflating for employers, beneficiaries, and counsel when Defining Clear Government Error What constitutes government error is open to interpretation—DOL's interpretation, that is. Ac- cording to the PERM Appeals FAQs, DOL makes clear that "[t]he Department determines what constitutes a Department error. PERM denial, the motion goes into one of two DOL processing "queues"—the "government error" or the "regular" reconsideration queue. The "government error" queue is available for applications where clear error by DOL was the sole basis for denial. See DOL, Permanent Labor Certification FAQs: Appeals (Dec. 1, 2009). (These PERM Appeals FAQs are incorpo- rated into the current PERM FAQs listed on DOL's website). DOL reviews each "government error" mo- tion individually and assigns it to the queue it deems appropriate. DOL does not notify employers about which queue it assigns a motion. Instead, according to October 28, 2010, liaison minutes, unless DOL contacts an employer within 45 days of filing, the employer should assume DOL placed the motion in the "regular" processing queue. The processing time for the "government error" queue is substantially shorter than the "regular" recon- sideration queue. As of March 2012, the government error queue was "current," meaning that motions were being processed within 45 days. See DOL, Welcome to the iCERT Visa Portal System (This information is also located in the "PERM Fact Sheet. DOL was still processing "regular" reconsideration re- quests for PERM applications filed in October 2010. Id. "). By comparison, was denied on multiple grounds, DOL must agree that each ground constitutes government error. Id. Otherwise, the motion is placed in the "regular" queue. Id. Stakeholders may believe that most denial deci- " If the application sions are the result of government error. However, for purposes of the government error queue, DOL's definition is narrow. For example, DOL states that clear government error occurs if the denial is based on failure to respond to an audit, but the employer can prove that it filed an audit response or that it never received an audit response letter. Id. Another example is a denial due to a data entry error on a mailed-in PERM application. Id. In liaison minutes from January 2012, DOL stated that denials based on recruitment not containing the Kellogg language also qualify for the "government error" queue. Unlike "regular" motions to reconsider or requests for review with the Board of Alien Labor Certifica- tion Appeals, government error motions are not ex- plicitly enumerated in the PERM regulations. This presents a double-edged sword. On the one hand, there are no narrow regulatory limitations on what constitutes government error. Thus, a "government error" motion is possible whenever there is a reason- able argument—even a creative one—for why the denial was based solely on government error. On the other hand, the lack of regulatory guidance opens the door for inconsistent determinations, even in virtu- ally identical cases. PODCAST: What to do When the Government Gets It Wrong (August 2011) 10 VOICE FREE! >

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