BALCA dismisses Appeal based upon PERM audit regulation 20 C.F.R. § 656.20(a)(3)

Posted On: April 9, 2009

The Board of Alien Labor Certification Appeals (BALCA) recently dismissed an appeal based upon the PERM audit regulations. A labor certification application was filed on behalf of an alien worker for the position of Domestic Servant. The CO issued a letter denying certification of the labor certification (LC) because the Employer failed to provide all evidence requested in the Audit Notification letter.

The employer, a private household filed a labor certification application on behalf of the alien worker in April of 2006. In December of 2006, the CO sent the Employer’s attorney an Audit Notification letter. The application was selected for audit to determine why the Alien resided with the Employer. The letter specifically requested documentation relating to the issue, and also requested the Recruitment Report and other documentation. In response, the Employer submitted an explanation as to why the alien lives with the household, and a copy of a tax return. Thereafter, the CO issued a letter denying certification. The CO attached a handwritten note to the letter stating that the recruitment report and advertisements were missing. A motion for reconsideration was filed by the Employer’s attorney in April of 2007. Support for the motion consisted of an explanation about miscommunication between the attorney and the employer, another copy of the tax return, newspaper advertisements, the CALJobs job order, and a prevailing wage determination. Subsequently, the CO issued a letter denying reconsideration because the Recruitment Report had not been provided. The CO forwarded the case to BALCA. The Employer did not file an appellate brief in support of his position on the issue, whereas the CO filed a letter brief arguing that the Recruitment Report is an essential requirement of the labor certification program.

Upon BALCA review, it was determined that PERM audit regulation at 20 C.F.R. § 656.20(a)(3) controls the issue on appeal. It provides that if the employer fails to provide documentation required to be submitted by the date specified in the audit letter, the application is automatically denied, the employer is considered to have refused to exhaust available administrative remedies, and administrative-judicial review before BALCA is not available. Thereafter, the Board determined that the Employer failed to timely submit the recruitment report as directed in the Audit Notification letter, and subsequently, according to regulations, the Board had no authority to further review the denial. Accordingly, the appeal was dismissed.