BALCA Says Attempts to Explain NOF Deficiencies Are Almost Certainly Destined to Fail

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Director of Sales.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied certification of the application for multiple reasons. Most importantly, the Employer did not include their name on their Notice of Filing (NOF) in violation of PERM regulation 656.10(d). PERM regulation 656.17 (f)(1) mandates that the advertisements “name the employer.”

The Employer sent a reconsideration request to the CO. In its argument, the Employer stated the NOF was acceptable regardless of the omission of their name. The Employer argued that public access to its building is limited and it is very plausible that only the company’s three employees would have access to the filing. With its request, the Employer submitted multiple documents including their articles of incorporation; federal tax return; photographs of the facility & bulletin posting area; certifications of accreditation; Florida Resale Certificate for Sales Tax; lease agreements; Google Map print-outs; and Miami.Dade.gov Property Information. With its Reconsideration Request, the Employer relied upon the Stone Tech decision.

Upon reexamining the evidence, the CO delivered a second denial and forwarded the case to BALCA for examination.

After BALCA’s examination of the case, BALCA sided with the CO. The Board thought the Employer clearly violated the PERM regulations by failing to list its name in the NOF. BALCA believed the sizeable documentation from the Employer could not assist the motion for reconsideration because none of the extensive documentation provided could be used to support a motion for reconsideration under the current regulations. Furthermore, the BALCA panel stated that the regulations require that “the NOF must comply with the regulatory content requirements.” It was fatal to the Employer’s application to have failed to include its name on the NOF.