En Banc Panel Resolves BALCA Dispute Over Prevailing Wage Documentation

The Board of Alien Labor Certification Appeals (BALCA) overturned the decision of a Certifying Officer (CO) to deny Labor Certification.

After obtaining & examining an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification ordering the Employer to submit a copy of the Prevailing Wage Determination (PWD) received from the State Workforce Agency (SWA) along with a copy of the request for the determination. The Employer replied to the Audit by providing a copy of the PWD issued from the Pennsylvania Bureau of Workforce Development Partnership. It did not contain a copy of its original request for a prevailing wage as submitted to the Pennsylvania SWA.

The CO denied labor certification citing the Employer’s failure to provide the request for the PWD in a timely manner. He referred to PERM Regulation 20 C.F.R. § 656.20(b) as his reason for denial. PERM Regulation 656.20(b) declares, “A substantial failure by the employer to provide required documentation will result in that application being denied.”

The Employer requested reconsideration of the denial maintaining that it accidentally neglected to send in the PWD request with its audit materials. They argued that the Pennsylvania SWA does not issue the PWD on the initial form and does not send it back. When they sent in the initial PWD, they believed it would be adequate evidence. Upon learning of the omission, the Employer did find a copy of the prevailing wage request and presented it with its request for reconsideration.

Once again, the CO denied labor certification and forwarded the case to BALCA. Before a decision was made on the case, BALCA voted to grant an “en banc review” of the case. Both parties were able to submit their briefs and the American Immigration Lawyers Association (AILA) filed an “amicus brief.” AILA sided with the Employer asserting the CO had a broad view of the PERM regulations. They felt the CO could only deny certification if the Employer neglected to supply documentation that is “specified in the regulations.” As the request form for a PWD is not specifically addressed.

After reviewing all of the briefs and arguments in this case, BALCA reversed the CO’s denial of labor certification. BALCA believed that the error of not including the original PWD request did not signify a “substantial failure to provide required documentation.”