BALCA Says Employers Do Not Need to Document Posting Dates of NOF

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 “Landscape Tech.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification requesting the Employer to present documentation of its Notice of Filing (NOF). Once the CO received the Audit materials, he denied the Labor Application on the ground that the Employer failed to confirm that the NOF was posted for ten (10) consecutive business days between 30 and 180 days before filing its ETA Form 9089, in violation of PERM regulation 20 CFR 656.10(d).

The Employer sent a reconsideration request to the CO. In his response to the reconsideration request, the CO requested the Employer, in 30 days, present a complete copy of their ETA Form 9089, a complete copy of the Request for Reconsideration and a complete copy of all of the audit documentation. The Employer provided the documentation; however, the CO denied the Labor Application citing the Employer did not send its materials back in a timely manner. The Employer then filed a second reconsideration request. In its argument, the Employer claimed it was an administrative error on the part of the Department of Labor, and re-submitted all of its materials including the original filing, audit materials and correspondence with the CO.

Upon re-examining the materials, the CO concluded that the Employer’s documentation failed to provide evidence to overcome the denial. He stated “the Employer failed to disclose the posting dates of the NOF.” The CO forwarded the case to BALCA for review.

After BALCA’s examination of the case, they reversed the CO’s denial of the labor certification. The Board believed the Employer did not violate PERM regulations because there is no requirement that the specific dates of posting of the NOF be supplied as proof of posting.

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