BALCA upholds denial of Labor application – Employer failed to comply with PERM process

Posted On: April 9, 2009

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Cook.

The CO denied the application in March of 2008 on one ground; the Employer had not filed its application or begun recruitment within the validity period of the State Workforce Agency (SWA) prevailing wage determination. Thereafter, the Employer filed a motion for reconsideration stating that the failure to place advertisements was an unintentional oversight, and that its overall efforts at recruitment were sufficient. The Employer attached an affidavit from the Employer’s owner reciting the difficulty in recruiting cooks for the restaurant. Subsequently, the CO denied reconsideration. The CO forwarded the case to BALCA. The Employer did not file an appellate brief, but the CO filed an appellate brief urging that its denial be affirmed by the Board. In the CO’s brief, it noted case law where a claim of clerical error as grounds of reversal was rejected because the employer had committed a substantive violation of the regulations.

Upon BALCA review, it was determined that the PERM regulations at 20 C.F.R. § 656.40(a) require that a petitioning employer obtain a prevailing wage determination from the SWA having jurisdiction over the proposed area of intended employed. The SWA specifies the validity date of the prevailing wage. When a SWA prevailing wage is used in support of an application, the petitioning employer MUST file their application(s) or begin the recruitment specified by the regulations within the validity period given by the SWA.

In the case at hand, the Employer’s SWA prevailing wage determination had an expiration date of December 31, 2005. The Employer ran its job order from March 23, 2006 to April 23, 2006. Then, ran his first newspaper advertisement on February 12, 2006 and ran its second advertisement on February 19, 2006. The labor certification application was accepted for processing on June 8, 2006. All of the Employer’s actions took place after the expiration of the prevailing wage determination. Accordingly, the Employer’s application was clearly not in conformity with the regulations.

The Employer stated that it unintentionally violated this requirement, yet asked for relief based upon its overall recruitment efforts. The Board responded by explaining that even if the error was unintentional, it was a substantive violation of the regulations. Accordingly, the CO properly denied certification, and equitable relief from the error was not warranted.