BALCA Reaffirms Its Zero Tolerance Approach for Failing to Submit Documentation

justice-srb-1-1040136-s.jpgWhen a U.S. employer wishes to hire a foreign national for a permanent position, the employer must complete the permanent labor certification process (also referred to as PERM). The purpose of the PERM process is for the employer to test the U.S. labor market to confirm that there are no willing and able U.S. workers who could perform the duties of the job opportunity offered to the foreign national. To do so, the employer must place a series of advertisements for the job opportunity, such as in a newspaper of general circulation and with the state workforce agency website.

Once the employer conducts the recruitment and confirms that no willing and able U.S. workers are available for the position, the employer files the PERM application on Form ETA 9089 on the Department of Labor (DOL) website. The DOL then reviews the ETA 9089 and decides whether the employer conducted accurate recruitment.

At times, the DOL reviewing officer conducts an audit of the ETA 9089. When an ETA 9089 is audited, the DOL officer asks for the PERM recruitment documentation including copies of the advertisements the employer placed, a copy of the prevailing determination the employer obtained, the recruitment report outlining the PERM process, and any r?sum?s the employer received in response to the advertisements.

The DOL audit process (indeed, the entire PERM process itself) is very, very strict and employers must carefully abide by the audit request and submit all of the necessary documentation. After receiving the documentation, the DOL officer conducts a second review of the ETA 9089 and either approves the application or denies it.

In the event of a denial, the employer may ask the DOL to reconsider its decision. Upon reconsideration, if the DOL again denies the application, the case will be sent to the Board of Alien Labor Certification Appeals (BALCA).

BALCA is the adjudicative board that reviews PERM denials. In the recent case Siemens Energy & Automation, BALCA reviewed an ETA 9089 that the employer filed in order to sponsor a foreign national as a Senior Commissioning Engineer with the employer's company. The DOL officer assigned to the case issued an audit notification asking for, in addition to other documents, a copy of the wage determination and a copy of the request for the wage determination.

In its audit response, the employer inadvertently forgot to include the requested wage determination materials. The DOL denied the ETA 9089, citing the missing wage determination documents as the reason for the denial. The employer asked the DOL to reconsider its decision and sent the requested materials to the DOL. The DOL affirmed its denial and forwarded the case to BALCA.

BALCA took an unwavering stance in its decision to reaffirm the denial. Specifically, BALCA cited the portion of the PERM regulations that states if the employer fails to provide the required documentation, the DOL will deny the application. The innocent reason for the failure (the fact that the employer accidentally forgot to send the documentation) does not matter to BALCA - nor does the fact that the employer did in fact have the documentation (and did in fact provide it to the DOL). BALCA affirmed the denial because the employer did not strictly abide by the DOL's requests.

This BALCA case is a great example that illustrates how strict the PERM process can be, especially for new employers who are completing their first application. Due to the complex regulations, it is highly recommended that employers work with an immigration attorney during this process. Contact our office today at 650-293-0270 to speak to a skilled member of our team about your case.

Additional Blog Posts

USCIS Sets Guidelines for Expedited Review for Cases Affected by Administrative Errors, Silicon Valley Immigration Lawyer Blog, May 1, 2012
USCIS Talks Immigration Law at Silicon Valley's Entrepreneurs in Residence Program, Silicon Valley Immigration Lawyer Blog, February 25, 2012

Employment-Based Green Cards / by Michelle Gee