BALCA on Calculating 180-Day Period for Filing under 20 CFR §656.17(e)

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 “Operating Engineer.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied certification of the application because the Employer had placed their State Workforce Agency (SWA) job order more than 180 days prior to the filing of their ETA Form 9089.

The Employer sent a reconsideration request to the CO arguing that “the 180 day period should be calculated based on the end date of the SWA, rather than the date it commenced.” To interpret the regulations otherwise would penalize employers who wanted to run their SWA’s for longer than 180 days. The CO did reconsider but afterwards, he confirmed the denial. Not happy with the outcome, the Employer appealed the decision to BALCA and restated its argument.

Upon review of this case, BALCA upheld the CO’s denial of labor certification. The panel referenced PERM regulation 20 CFR 656.17 (e). “Under these regulations, the SWA job order must begin no more than 180 days prior to the filing of the ETA Form 9089.” The SWA job order must have ended at least 30 days prior to the filing of the ETA Form 9089. This time period allows for companies to evaluate the current labor market. The panel stressed that if too much time passes, it is not an accurate reflection of the present labor market.