BALCA upholds denial of Labor Certification – PERM: Recruitment not conducted in accordance with Regulations

Posted On: August 12, 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 “Dietitian and Nutritionist."

The employer filed a LC on behalf of an alien worker in December of 2006, where the Employer indicated that it had based its recruitment on the requirements for a non-professional position. In August of 2007, the CO denied certification because the Employer improperly relied upon the non-professional position requirements for recruitment, when the professional position recruitment requirements should have been conducted. The CO explained that the particular position was listed in Appendix A of the Preamble to 20 C.F.R. Part 656 as a Professional occupation, and recruitment should have been conducted accordingly. The Employer then filed a Motion to Reconsider arguing that a bachelor’s degree was not required. The CO stated that when a position is listed on Appendix A, the Employer must conduct the recruitment required for professional occupations, the mere listing as a non-professional position, and not requiring a bachelor’s degree were irrelevant to the discussion. Since the additional recruitment steps were not taken, the CO had the authority to deny certification.

The CO then forwarded the case to BALCA. The Employer informed BALCA of its intent to proceed with an appeal, but did not file an appellate brief. The CO filed a brief arguing that its decision should be affirmed by the Board because the occupation was listed on Appendix A, and therefore recruitment in a manner prescribed for a professional position was required pursuant to the regulations.

Upon BALCA review, it was determined that professional recruitment requires a few additional steps not required for nonprofessional positions. Appendix A of the Preamble to 20 C.F.R. Part 656 provides an extensive list of professional occupations, which are defined as “occupations for which the attainment of a bachelor’s or higher degree is a usual educational requirement, however, the educational degree is not determinative of whether an Appendix A occupation is considered a professional position. Thus, if an occupation is found on Appendix A, the employer must recruit the position under the criteria for professional occupations, even if the employer does not consider the position to be a professional one and does not require the attainment of a bachelor’s degree. Here, the Employer did not require a bachelor’s degree, but the position was listed in Appendix A, and the Employer was required to conduct the additional steps required for professional recruitment. In the present case, the Employer failed to conduct those additional steps and denial by the CO was proper.

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