BALCA upholds denial of Labor Certification – PERM: Failure to follow Recruitment time restrictions for filing

Posted On: August 4, 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 “Accounting/Bookkeeping Assistant."

On March 2, 2007, the employer filed a LC on behalf of an alien worker, indicating that the position was a professional occupation. In August of 2007, the CO denied certification for many reasons, mainly that the application was incomplete. By September, the Employer had resubmitted the labor application correcting most of the deficiencies, and submitted evidence of recruitment. In November of 2008, the CO issued a letter of reconsideration providing that one of the reasons for denial was that the job order was not conducted within the time frame required by the regulations. Additionally, one of the three additional recruitment steps was conducted outside of the time frame.

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 because the Job Order was not completed at least 30 days prior to filing the application, and the fact that one of the three additional recruitment steps was conducted 5 months after filing, clearly in violation of the regulations.

Upon BALCA review, regulation 20 C.F.R. § 656.17(e) controls and provides that “an employer must have attest to having conducted the following recruitment prior to filing the application: (1) …the employer must conduct recruitment steps within six (6) months of filing the application…,(2) a job order must be placed with the State Workforce Agency (SWA) serving the area of intended employment for a period of 30 days, the state and end dates of the job order entered on the application shall serve as documentation of this step… Here, the Employer placed the job order six (6) months after filing the application, which is a clear violation, because the job order must be filed at least thirty (30) days prior to filing the application. Additionally, the third additional recruiting step was not completed until five (5) months after filing, when it should have been completed within 30 days prior to filing.

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