BALCA En Banc Panel Says Proof of Job Order Publication Is Not Required

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 “Tile Setter.”

After obtaining & examining an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification ordering the Employer to submit copies of its State Workforce Agency (SWA) job order. This included a copy of the job order placed with the SWA serving the area of intended employment downloaded from the SWA Internet job listing site, a copy of the job order provided by the SWA, or other proof of publication from the SWA containing the content of the job order. The Employer replied to the Audit by providing a photocopy of a completed “Employer Job Order Information Sheet” from VaEmploy.Com.

The CO denied the labor certification citing the Employer’s failure to provide proof of publication of the job order from the SWA containing the content of the job order. He believed the copy of the VaEmploy.Com sheet did not indicate the ultimate content of the SWA job order. In addition, the CO thought the “Order Information” sheet did not prove the SWA published the job order. He cited PERM regulation 20CFR 656.20(b) as the governing source of his denial. PERM regulations require “an employer filing for permanent labor certification to place a job order with the State Workforce Agency (SWA) serving the area of intended employment” for a period of 30 days.

The Employer requested a reconsideration of the denial arguing that the PERM regulations establish that the SWA job order is verified by the start and end date as listed on the labor certification application. In order to try to obtain evidence of the placement of the SWA job order, the Employer contacted the Virginia SWA. They were sent an e-mail response from an SWA representative stating that the older job orders were deleted out of the database. The Employer included a copy of this e-mail in its reconsideration request.

Once again, the CO denied labor certification and forwarded the case to BALCA for its own review of the case. Upon review, BALCA confirmed the denial because the Employer neglected to present the mandatory documentation demanded by the CO in his Audit Notification. BALCA believed that the Employer needed to give an actual copy of the SWA job order.

The Employer was not satisfied with BALCA’s decision and requested “en banc review” of the case. They argued that they completely fulfilled all of the PERM regulations obligations. The Employer cited another panel decision, the “Mandy Donuts Corp” case. This case was very similar to the Employer’s. In the “Mandy Donut’s” case, the panel overturned a CO’s decision to deny a labor certification on the basis of an Employer’s failure to provide proof of an SWA job order. The Panel cited that PERM regulations only entail placement of a SWA job order for 30 days. This placement must be verified by the opening and closing dates on the labor application.

In order to help resolve this case, BALCA invited members of the American Immigration Lawyers Association (AILA) and the American Immigration Council (AIC) to contribute to the review. All parties filed briefs with their interpretations of the case. The CO thought the “Mandy Donuts” decision was not relevant to the case. He reiterated his stance that the Employer needed to provide an actual copy with the content of the SWA job order. AILA filed a brief in response to the case. They believed that the Employment & Training Administration (ETA) comments about regulations, during the ruling, indicate the Employer is not required to submit the actual (SWA) job order. Since specific documentation is not listed in the regulations, the CO should not “deny certification for failure to submit a copy of the job order.”

After listening to all of the briefs and arguments in this case, BALCA reversed the CO’s denial of permanent labor certification. BALCA believed that the PERM regulations do not insist on employers providing evidence of an SWA job order. Specifically, the PERM regulations require: Placing a job order with the SWA serving the area of intended employment for a period of 30 days. The start and end dates of the job order entered on the application serve as documentation of this step. 20 C.F.R. ยง 656.17(e)(2)(i).