DOL's Emphasis of Form over Matter shot down

By April 22, 2009News & Press

The Department of Labor, Foreign Labor Certificate Division had always been emphasizing form over matter. The Perm form (and to an extent even the LCA form) is all about form, not much about substance. You have to do things just a certain way, or you get denied. Such was the case of the Kellogg language which needed to be inserted if the employee qualified for a job in an alternative capacity. For instance, if the job is for software engineer and the employer will accept software degree holders or say MIS or any combination of that; then the PERM form should have the magic language that was mandated by a case called Kellogg. As long as the employer (or attorney) put in the magic language,”“any suitable combination of education, training or experience would be acceptable”, you are good to go. This requirement does not have to be in the advertisement, or anywhere except the PERM form. When it is apparent that the employer will accept alternatives, what good will sprinkling the magic language into the form achieve? Thankfully the Board of Labor Certification Appeals recently ruled that it would be fundamentally unfair to deny certification based solely on the fact that the employer did not sprinkle the magic language into the case.

Our legal tradition had always emphasized matter over form. But thats not the case in immigration law where still form is emphasized over substance of a case. Already this field of law does not attract the top law students. I think in the future immigration law (unless of course it changes)will be performed by robots.

Contact Houston Immigration Lawyer, Annie Banerjee for more details