September 2024 PERM Tip #2: Correcting a 9089 After Filing

BIB Daily presents bimonthly PERM practice tips from Ron Wada, member of the Editorial Board for Bender’s Immigration Bulletin and author of the 10+ year series of BALCA review articles, “Shaping the Future of PERM.” Questions or comments may be sent to Ron at ron.wada@tandslaw.com.

According to the “no modification rule” (20 CFR § 656.11(b)) that has been in effect since 2007, it is not permissible to modify the content of a Form 9089 PERM application after it has been filed.  However, two exceptions to the “no modification rule” have been recently highlighted by BALCA and are worth noting:

• A PERM application cannot be denied based on the “no modification rule” where the Form 9089 entry in question is contradicted by supporting evidence that was available at the time of filing, the requested correction was submitted with a Request for Reconsideration under 20 CFR 656.24(g), and the supporting evidence demonstrates actual compliance with the PERM regulations. Examples of acceptable supporting evidence include, e.g., a Notice of Filing, a tear sheet or other advertisement, or a PWD. Matter of Diversant LLC, 2024 BALCA LEXIS 92 (BALCA Mar. 20, 2024).

• A PERM application cannot be denied based on the “no modification rule” where the requested correction to the Form 9089 in question pertains to the PERM beneficiary’s background that is not relevant to their qualifications for the job. Matter of Arthur Lawrence US LLC, 2024 BALCA LEXIS 152 (BALCA May 20, 2024).

For further information, see:

1. Ron Wada, “Shaping the Future of PERM – BALCA Highlights 1Q & 2Q 2024,” 29 Bender’s Immigr. Bull. 1269 (Aug. 1, 2023).
2. Matter of Diversant LLC, 2024 BALCA LEXIS 92 (BALCA Mar. 20, 2024).
3. Matter of Arthur Lawrence US LLC, 2024 BALCA LEXIS 152 (BALCA May 20, 2024).