BALCA affirms priority date for PERM application

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determinationof a Certifying Officer (CO) affirming the filing date for the approved PERM labor certification (LC). The application was filed on behalf of an alien worker for the position of Auto Mechanic.

The employer, an auto repair shop filed a pre-PERM application on behalf of the alien worker on April 25, 2001. The education requirement is what is at issue on appeal. The pre-PERM application stated a requirement of an eighth grade education. On November 4, 2005, the employer’s filed PERM application for the alien worker was accepted for processing. The PERM stated a requirement of a high school education. The CO thereafter granted certification and set the alien worker’s priority date, November 4, 2005. The letter did not include an explanation as to why the priority date was not that of the pre-PERM date accepted for processing, April 25, 2001. Former counsel for the employer wrote to the CO arguing that the priority date was in error and attached evidence of the pre-PERM acceptance date. A few months later, new counsel for the employer mailed a letter to the CO reiterating the same point addressed in former counsel’s letter. The CO denied reconsideration on the priority date issue in July of 2008. The CO explained that the earlier date was not assigned as the priority date for the application because the applications were not identical on the education requirement. The CO then addressed the argument the employer made in its letter. The employer argued that ETA Form 9089 does not provide an option for grade school, and the closest option was high school. The CO rebutted this argument by noting that there is an option on Form 9089 for other, which allows the employer to specify what is required in regards to education. The CO forwarded an Appeal File to BALCA. The employer did not submit an appellate brief addressing the issue; however, the CO did file a letter brief which supported the reasons behind its denial of the motion for reconsideration.

Upon review by BALCA, it was determined that the regulations clearly support the CO’s decision not to retain the pre-PERM priority date. Specifically, the regulation at issue is 20 C.F.R. § 656.17(d) which states that employers who filed applications under the regulations in effect prior to March 28, 2005, may, if a job order has not been placed pursuant to those regulations, re-file such applications under this part without loss of the original filing date by: (i) submitting an application for an identical job opportunity after complying with all of the filing and recruiting requirements…(4) for purposes of this section, a job opportunity shall be considered identical if the employer, alien, job title, job location, job requirements, and job description are the same as those stated in the original application filed under the regulations prior to March 28, 2005.

BALCA identified the same discrepancy that the CO found. In summary, the Employer filed the pre-PERM application for the alien worker with an eighth grade education requirement, and filed the PERM application for the same worker with a high school education requirement. There is clearly an option on ETA Form 9089 which allows an employer to specify their exact educational requirements for the position. Thus, the CO correctly applied the regulations to set the priority date based on the date that the PERM application was accepted for processing, November 4, 2005. Accordingly, the CO’s determination of the priority date for the approved PERM labor certification was affirmed.