BALCA vacated and remanded - "Ongoing" Recruitment

Posted On: December 9, 2010

The Board of Alien Labor Certification Appeals (BALCA) recently vacated and remanded the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Controls Engineer."

The application was accepted on October 2, 2009 and on the application where additional recruitment efforts required were suppose to be reported, the Employer cited the posting on its web site and use of a referral program as well as a private employment firm. The dates listed for posting were “06/26/09 to Ongoing.” The application was denied by the CO citing the Employer failed to fill out a section, rendering the whole application incomplete. The Employer then asked for a review but also wanted the chance to change and correct information on the new application. The revised application stated that the end of the posting on the website and referral program was “07/30/09.” The application was redirected to Appeals where the CO argued under 20 C.F.R. § 656.11(a) that an application revised after July 17, 2007 cannot be accepted.

PERM regulation 20 C.F.R. § 656.17(a) controls and it provides that any incomplete application will be denied. However, the BOARD found that the Employer did not submit an “incomplete” application, the Employer simply did not fill out the section in the format instructed, mm/dd/yyyy. Further, BALCA found that there was no precedent to suggest that filling out “ongoing” in the answer field was incorrect.

Accordingly, BALCA remanded to the CO to grant certification.