This article provids summary of a new decision issued by the Board of Alien Labor Certification Appeals (“BALCA”) affirming the denial of an application for PERM Alien Labor Certification.
On June 3, 2010 BALCA issued a decision in which it confirmed to US employers that even small seemingly harmless errors will cause the denial of a PERM application. In this specific case, also known as In Re-Soon Pal Known, case 2010-PER-00056, the employer filed an PERM Alien Labor Certificate Application with the Atlanta Processing Center. The Certifying Officer issued an audit request pursuant to regulations. According to USDOL most recent releases, thirty seven percent (37%) of all PERM applications are subject to such audits. USDOL audits are intended to test, sometimes on a random basis, whether the employer complied with the formalities of pre-filing recruitment activities pursuant to regulations. When the employer provided the documentation responsive to the audit request, it also included proof of recruitment in connection with the application itself.
It is worthy to review the recruitment activities which must precede the filing of a PERM application for a professional position: pursuant to regulations, the employer must engage all of the following recruitment activities prior to filing: 1) advertising the position in a newspaper of general circulation in the geographic area of the worksite; 2) posting a job order with the state workforce agency having jurisdiction over the place intended employment; 3) engaging in three from 10 alternative recruitment steps listed in regulations; and 4) posting an internal notice of the filing of an application for alien labor certification. The regulations under 20 C.F.R. § 656.10(d)(3), require the employer to list specific items in the internal notice including the address of the Certifying Officer which complaints may be sent to by US workers if they have a belief that the employer is engaging into questionable practices in the employment of foreign labor. Hence, the internal notice must include the following precise language:
This notice is being posted in connection with the filing for permanent alien labor certification. Any person may provide documentary evidence bearing on the application to the Certifying Officer of the Department of Labor at the following address: Attn: Certifying Officer, Atlanta National Processing Center, Harris Tower, 233 Peachtree Street, N.E., Suite 410, Atlanta, Georgia 30303.
The employer Soon Pal Kwon, complied with all of the above listed recruitment steps, including posting of the internal notice. Furthermore, the employer complied with all regulatory directives relative to the content of the internal posting notice and did in fact list the address of the Certifying Officer in the internal notice. The employer’s mistake was that he included one more address on such internal notice. The additional address was for the state workforce agency. Hence when the employer responded to the audit request it provided a copy of the internal notice which had the additional address included therein. The Certifying Officer denied the application on the basis that the internal notice did not comply with the regulatory requirements.
The employer filed an appeal and argued that it had complied with every requirement listed in section 656.10(d)(3) of title 20 Code of Federal Regulations. The employer also stated that inclusion of the additional address is harmless error since the address of the Certifying Officer was listed. The Certifying Officer argued that prior case BALCA case law stated that state workforce agencies may not be used as a conduit to transmit documentation to the Certifying Officer. BALCA decision mirrored the Certifying Officers argument and stated that its prior decision in Hawaii Pacific University have determined: “it is simply unreasonable for petitioning employers to put the burden on the state processing unit to redirect communications about labor certification applications from workers are members of the public when the regulations direct employers to put the proper address on the Notice of Filing in the first instance.” In affirming the decision of the Certifying Officer, BALCA relied on the Hawaii Pacific University case concludes that the employer’s inclusion of an additional address which had no jurisdiction over the adjudication of the PERM application was “inexcusable.”
The Soon Pal Kown decision underscores the increasing hypersensitivities of the certifying officer in reviewing PERM applications recently and BALCA’s unwillingness to recognize such hypersensitivity. Cases such as Soon Pal Kown makes it clear that the attorneys representing employers in filing alien labor certification applications must exercise heightened caution and meticulousness in following the formalities included in the PERM regulations. At the law firm of Shihab and Associates, Co., LPA we take such responsibility very seriously. In our firm PERM applications are processed by a licensed attorney, not a paralegal. In doing so our firm is cognizant of the importance of such formalities and will only entrust attorney with experience in filing such applications when representing our clients. If you have any questions regarding a PERM application, contact one of our attorneys at the location near you. Whether you would like to file a new PERM application or have to question regarding a green card contact us at 1-877-479-4872.