BALCA Upholds Denial for Failure to Specify Location of NOF Posting

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 “Travel Agent.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. It required the Employer to present the notice of filing documentation. The Employer sent back a copy of the Notice of Filing (NOF).

The CO denied the application for multiple reasons. He stated that the employer did not name the location of where the NOF was posted, as a result, they violated PERM regulation 20 C.F.R. 656.10 (d) (1) (ii). This regulation requires that “the NOF must be posted at employer’s facility or location in two conspicuous places where the employer’s US workers can readily read the posted notice on their way to or from their place of employment.” The regulations also provide that “the documentation requirement may be satisfied by providing a copy of the posted notice and stating where it was posted.”

After the denial, the Employer requested reconsideration. The Employer believed the PERM regulations did not list the location of the posting as a requirement. Upon reviewing the request, the CO once again denied certification. He clarified that the PERM regulations require “the NOF be clearly visible and unobstructed while posted and must be posted in conspicuous places where the US workers can readily read the posted notice on their way to or from their place of employment.”

The CO forwarded the case to BALCA for review. In its argument, the Employer declared that the PERM regulations give them the option to inform the CO as to where the NOF was posted. BALCA believed the content of the NOF was fine. However, the Employer did not provide sufficient evidence to show the exact location of the NOF, nor did the Employer offer another method for which the CO could verify that the NOF was posted in accordance with the regulations. The Board affirmed the CO’s decision to deny certification of the application.