We all know the PERM process is an ardent process with little scope for even inadvertent mistakes. The facts of this particular case, Lenora Systems Inc, involve a denial resulting from not responding to an audit request from the Certifying Officer (CO). The issue at contention is whether the “Mailbox Rule” applies to the Audit Notification requesting further documentation sent through email and when it is deemed to have been received. The Board while vacating the CO’s denial of the certification delved in-depth analysis of the federal case law from the different circuits on the issue. 

After CO denied the labor certification for failure to provide requested documentation in the Audit notification send via email, the Employer requested reconsideration and asserted that they never received the Audit notification email. The CO denied the reconsideration and the Employer appealed the CO’s denial.

On appeal, CO invoked the Mailbox Rule (common law principle to determine if a document was received by the recipient) and also that the employer failed to rebut the presumption of delivery under the Mailbox Rule. The CO argued that to rebut the presumption of delivery the federal case law requires “circumstantial evidence of objective nature” beyond simply asserting non-receipt. 

The issue, in this case, boils down to whether Mailbox Rule as applicable under the PERM regulations embodies a strong presumption of delivery or a weaker presumption of delivery. Besides, what is required to overcome that presumption a) circumstantial evidence of an objective nature beyond simply asserting non-receipt or b) asserting non-receipt with lack of motive for not responding.

The CO also distinguished PERM proceedings from the removal proceedings arguing that a weaker presumption will be justified in removal cases due to “heightened liberty due process concerns”. The tribunal rejected the argument after analyzing numerous removal cases where the courts held that a notice sent by regular mail meets the constitutional due process requirement and noted that the federal court case law reasoning doesn’t support the “due process concerns” as the basis for a weaker presumption in removal proceedings. The tribunal decided that majority of the federal case law apply different standards depending on the different set of issues, primarily taking into account the “type of mail involved, and issues involved”. However, the general standard including in immigration context remains that the presumption of delivery is strong when the correspondence is sent by certified mail and it is weak if it is sent by a regular mail.

The tribunal recognized that under the PERM process unlike removal proceedings the Employer does not get an opportunity to develop evidence after submitting Form 9089 because the objective of the PERM process is to “favor administrative efficiency”. Hence, if anything, the lack of procedures available to the Employers under the PERM setup warrants’ weaker presumption.

In conclusion, the tribunal decided that based on the fact of the case, it is a weaker presumption of delivery as even though the CO presented the headers of the email sent, it is not a proof in itself that the email was delivered to support a strong presumption. Also, the fact that the Employer’s denial of receipt of the email combined with circumstantial evidence of lack of motive and the fact that they responded to the PERM denial notification promptly requesting reconsideration rebuts the weak presumption of delivery of the email.