BALCA and HealthAmerica

"In Matter of Sushi Shogun, 2011-PER-02677 (May 28, 2013), BALCA said, “HealthAmerica has effectively been overruled by the promulgation of 20 C.F.R §656.11(b).”  Practitioners who file numerous PERM applications can empathize with my initial panicked gasp at seeing “HealthAmerica” and “overruled” in the same sentence. ... But HealthAmerica is still good law and can still be cited in cases where the denial of a PERM application is not consistent with notions of fundamental fairness and procedural due process; where the substantive integrity of the process was preserved; the test of the availability of US workers was valid; the Employer’s good faith is evident; the error is harmless; and does not require a modification of the ETA Form 9089. ... HealthAmerica is still alive and is still important to the preservation of the integrity of the PERM process in cases where there has been no demonstration of bad faith or after the fact fabrication and a modification of the ETA Form 9089 is not required." - Cora-Ann V. Pestaina, June 4, 2013.