BALCA Reverses Denial Where CO Failed to Timely Rule on Motion

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

Procedural Case History – Case was originally accepted by DOL on December 3, 2007. June 11, 2008 CO denied certification. Appeal File was sent to BALCA on April 30, 2010. On April 21, 2011, BALCA vacated the denial and remanded for further processing. This labor application was for a nonprofessional position.

The Atlanta National Processing Center issued a letter directing the employer to provide evidence that it was a bona fide business entity. Additionally, the CO issued an Audit notification in June 2011. The CO asked the employer for copies of the newspaper tear sheets from its Sunday newspaper advertisements. The CO gave the Employer a one month deadline to submit its response. The Employer provided its response as well as a note asking for a 30 day extension on the tear sheets. The employer’s lawyer stated they had requested it but had not received it at the time of mailing the response.

The CO denied the application. The Employer did not provide originals, copies of the advertisement or any proof of publication, he cited the Employer was in violation of PERM regulation 20 C.F.R. 656.17(e)(1)(i)(B)(3) and 656.20(b).

The Employer requested reconsideration of the denial. They argued that proof of the advertisements was in existence at the time they submitted their labor application. However, the Employer could not submit it because “it was in the possession of the Employer’s previous representative who had taken it with her and disappeared.” Their new attorney had requested a copy of the advertising tear sheet and asked for an extension of the Audit deadline while they were waiting for it. With the request for reconsideration, the Employer submitted a copy of the advertisement’s proof of publication.

The CO denied the request citing multiple reasons. First and foremost, he cited the Employer’s failure to comply with the Department’s regulation requiring an Employer to retain all supporting documentation for its application for five years from the date of filing.” In addition, the CO stated that the Employer’s attorney’s request for an extension came only two days preceding the due date of the Audit materials.

The CO transferred the case to BALCA for its review. After BALCA’s examination of the case, certification of the labor application was ordered. Even though the Employer did not submit its tear sheet with their Audit materials, they believed the CO should have allowed extra time for the Employer to send in proof because they had requested an extension. The extension was valid because of the unforeseen circumstances of the former attorney’s departure.