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BALCA Once Again Takes Hardline in PERM Case

1409595_gavel_5.jpgIf a U.S. company wants to sponsor a foreign worker for an employment-based green card, the company must go through the permanent labor certification process (also called the PERM process).

The PERM Process

During the PERM process, the company tests the U.S. labor market by placing advertisements for the foreign national’s proposed job position in major newspapers, on the company’s website, on the state department of labor website, and other venues. The purpose of this advertisement process is to determine whether there are qualified and interested U.S. workers who could perform the job duties.

If the employer conducts the recruitment process and does not find any qualified and interested U.S. applicants, the employer then files the electronic PERM application (Form ETA 9089) on the Department of Labor (DOL) website. A DOL officer is assigned to review the application and confirms whether the employer conducted appropriate and adequate recruitment for the job opportunity.

The DOL Review Process

There are three possible outcomes during the DOL review process. First, the DOL could approve the PERM application. Upon approval, the DOL emails the employer to inform it of the decision and mails the original approved ETA Form 9089 to the employer’s office.

Second, the DOL can deny the PERM. In the event of a denial, the DOL sends the denial notice and reasons for denial to the employer. The employer can appeal the denial (as detailed below) or choose to file a new case.

Finally, sometimes the DOL officer audits the case. When an ETA 9089 case is audited, the DOL sends a notice of the audit to the employer and requests copies of the PERM recruitment documentation including copies of the advertisements, a copy of the wage determination used for the case, a copy of the recruitment report the employer prepared which explains the advertisements, and any résumés the employer may have received during the recruitment process.

The DOL’s review and audit processes (basically, the entire PERM process) is governed by very, very strict regulations and sensitive timeframes, and all employers must carefully read any audit notification and timely respond to all of the requests. After receiving the employer’s audit response, the DOL officer performs a second review of the case and either approves or denies the application.

The Board of Alien Labor Certification Appeals

If the DOL ultimately denies the ETA 9089 application, the employer can ask the DOL to reconsider the denial. If the DOL again denies the ETA 9089 after its reconsideration, the case is automatically sent to the Board of Alien Labor Certification Appeals (BALCA).

BALCA is the administrative board that reviews ETA 9089 denials. In a recent case involving an ETA 9089 filed by Siemens Energy & Automation, BALCA reviewed a PERM application that the employer filed for a foreign national who was going to work as a Senior Commissioning Engineer with the company. The DOL officer who reviewed the case audited it, and asked for (among other materials), copies of the wage determination request and determination itself.

In the audit response, the employer accidentally omitted the requested wage documents. The DOL ultimately denied the application because of the employer’s failure to provide these requested materials. The employer asked the DOL for reconsideration and provided the wage documents to the DOL. The DOL upheld its denial decision and gave the case to BALCA.

BALCA affirmed the DOL’s denial of the application. BALCA pointed to the section of the PERM law that establishes if the employer does not provide any requested documentation – no matter the reason – the DOL will deny the ETA 9089.

In this case, the wholly innocent and inadvertent reason for the employer’s failure to provide the wage documents (the reason being that the employer simply forgot) is of no consequence to BALCA. It also does not matter that the employer actually possessed the required documents and actually provided them to the DOL. BALCA affirmed the denial solely because the employer did not abide by the DOL’s requests to the letter.

The Rant

This BALCA case is a terrific illustration of some of the more ridiculous aspects of immigration law. The entire PERM process is governed by some of the most complex regulations in the U.S. code. Employers often spend thousands of dollars advertising for the job opportunities and then must wait several months to years waiting for the DOL or BALCA’s decision on their application. During this time, the U.S. is missing out on skilled labor from foreign nationals who want to work in this country and contribute to our economy. We hope that comprehensive immigration reform will address these issues.

Additional Blog Posts
What Immigrants Need to Know About the Government Shutdown, ImmigRantings, October 10, 2013
Problems with the H-1B visa: From Work Horse to Show Pony, ImmigRantings, February 13, 2012