Recently, BALCA (Bureau of Alien Labor Certification Appeal), the agency that hears appeals when a Labor Certification is denied, has made several important decisions. This post will describe a couple of the most important decisions.
Accent-Media Productions, Inc., 2012-PER-712 (September 23, 2015)
We advise all our clients on the documents that need to be kept. In that list we include documentation of contact with those who apply for the position. While this documentation is not listed as a required document that needs to be retained under the statute or regulations, we have seen DOL ask for it before and it is a good practice to keep it. Now, this is doubly true.
An employer was requested by the DOL during an audit to provide the evidence of his contact with the applicants. The employer had contacted the applicants by email, but did not provide such documentation to the officer and the case was denied. While it should have been a simple matter for the employer to provide the emails in a motion to reconsider, that is not allowed. Only documentation that is either asked by the officer (for the motion to reconsider) OR information that was unavailable to the employer at the time of the initial request can be included in the Motion to Reconsider. Instead, the employer appealed the case to BALCA claiming that the documents were not required to be retained by the employer, and, therefore the the employer was not required to provide them to the officer and the case could not be denied on that basis.
While the above is correct, there is a provision that allows the officer to request additional evidence if the request is reasonable and a failure to provide the additional evidence would amount to “substantial failure…to provide required documentation.” Now, while it is clear that the evidence requested was reasonable, how could it be said that by not providing this information (which is not “required documentation”) could be viewed as a substantial failure to provide required documentation? According to BALCA it was necessary evidence to determine whether the applicants were rejected for lawful, job related reasons. I think what BALCA is trying to say is that the officer has a right to have confirmation that what they employer states on the recruitment report actually occurred as reported. In other words, the officer is not required to trust the word of the employer that it did what it said it did.
DGN Technologies 2012-PER-00423 (September 3, 2015)
In this case, the employer filed a PERM case with the DOL. The DOL officer sent out a Audit Notification Letter requesting documentation about the recruitment process to the employer. When the employer did not respond, the case was denied. In a Motion to Reconsider, the employer argued that it had not received the notice send out by the employer and requested the case be reopened and the notice send out again. BALCA re-opened the case and ordered that the officer re-send the notification and give the employer the requisite time to reply.
BALCA stated two reasons for overturning the denial: First, since the Officer had no proof that the document was mailed (outside of its word) and did not provide proof of the mailroom procedures to the judge to show that such procedures would lead one to believe that the document was mailed, that there is no presumption that the document was mailed or received. Second, the judge stated that even if such documentation were available and there were a presumption that it was mailed and received, it is a weak presumption and the affidavit of the employer that it did not receive the documents, and the lack of motive for the employer to ignore the audit notice, all lead to the conclusion that the notice was not received by the employer. Therefore, the denial was vacated.
This shows that BALCA is not above requiring the same type of documentation (proof of mailing, etc.) from the DOL as it requires from employers. But more importantly, it also shows that when there is sufficient indication of honesty, the DOL should trust the word of the employer. This is in contrast to the above case in which an employer could have serious reasons to mis-represent the reasons for denial of a particular applicant as it could help the case be approved. Therefore the DOL does not have to rely solely on the word of the employer in that case.
It is always important to remember that PERM cases are difficult not because the procedures are necessarily difficult, but because the Department of Labor is looking for any reason to deny the application. Even the fact that the employer did not receive a notice from the DOL, is enough for them to deny a case and make you start over from the beginning. Competent is important for these type of cases.
Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.
2 thoughts on “Recent PERM Issues resolved by BALCA”
I just came across this blog. My audited PERM case was denied because apparently according to the CO, we did not respond to his email for a correction in the draft ad. My lawyer has checked her inbox and junk emails but no such email was found. She recently filed for a motion to reconsider the case. I am really keeping my fingers crossed. I hope we could provide a compelling argument because there is no way we could have just ignored the CO’s email.
Thank you for the comment. I would hope that BALCA would be reasonable in your case as well. Realistically, DOL should send all notices via mail and not just email (although email can be used IN ADDITION to mail) and I would hope that BALCA would confirm that this is what the DOL would need to do in all cases.