BALCA upholds denial of Labor Certification – PERM: Failure to follow Newspaper Advertisement Regulations

Posted On: August 3, 2009

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination
of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Food Preparation Worker."

The employer filed a LC and had checked the box on Form 9089 indicating that there was a Sunday edition of a newspaper available in the area of intended employment. The Employer’s report of its newspaper advertisements showed that the first ad was placed on Tuesday, August 22, 2006, and a second advertisement was placed on Saturday-Sunday, October 21-22, 2006, in a different newspaper. In January of 2007, the CO denied labor certification for failure to comply with the Sunday newspaper advertisement regulations. The Employer then submitted a letter indicating that it had re-advertised for the position on Sunday, January 28, 2007. Accordingly, the CO thereafter denied reconsideration on the ground that the 2007 newspaper advertisement was not “in the record” at the time the application was denied.

The CO then forwarded the case to BALCA. The Employer filed a Statement of Intent to Proceed with the appeal, and did not file a brief. The CO filed a letter brief arguing that its decision should be affirmed by the Board.

Upon BALCA review, regulation 20 C.F.R. § 656.17(e) controls, providing that the Employer must have attested to having placed two print advertisements on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity. Here, the denial was based upon the Employer’s failure to run the second advertisement in a Sunday edition newspaper of general circulation. The Employer did not argue that it had or had not complied with the regulations, but argued that it re-advertised the position correctly after the denial, and that certification should be granted based upon that act. The Board stated that the CO is not required to permit an employer to cure a deficiency by filing a motion for reconsideration supported by a new recruitment conducted after the CO denied the application. The Employer’s remedy in this case is to file a new labor certification.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.