BALCA Acknowledges Due Process Concerns But Upholds PERM Denial

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 “Instructional Coordinator: Computer Cluster.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. Once the Employer responded, the CO denied certification of the application. He stated the position communicated in its recruitment efforts did not match the one listed on the Employer’s ETA Form 9089 in violation of PERM Regulation 20 CFR 656.17(f)(7). This regulation requires that an advertisement “must not contain wages or terms and conditions of employment which are less favorable than those offered to the alien.”

The employer’s ETA form 9089 contained the following language, not listed in any of its recruitment efforts – “occasional day travel within San Antonio Metropolitan area and/or to Corpus Christi, Texas. No Overnights.” The Employer sent a reconsideration request to the CO. In its argument, the Employer argued that it did not violate 656.17(f)(7) because it did not mention any travel in its recruitment advertising. They also stated by “not listing a travel requirement it makes the terms and conditions of employment offered to US workers more favorable.” The CO affirmed its initial denial and forwarded the case to BALCA for review.

After BALCA’s examination of the case, the panel sided with the CO. The Board deemed the Employer clearly violated PERM regulations, but not the right one cited by the CO. By not indicating any travel requirement, the Employer violated PERM regulation 20 CFR 656. 17(f)(4). This regulation requires that advertisements must “indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.” The Employer cannot dispute that they did not list a travel requirement in their recruitment efforts. Even though the CO cited the wrong PERM regulation in his denial, BALCA could not certify a labor application that was in clear violation of a PERM regulation. The Board affirmed the denial.