BALCA Issues Important Ruling re PERM Notice of Filing Posting Dates

calendar-series-3-544231-m.jpgThe PERM regulations are full of minute detail that an employer must completely adhere to throughout the entire PERM application process. If an employer fails to comply with even one seemingly small detail, the application is to be denied, and the employer is given no second chances or opportunities to go back and repair the error.

When an employer files an application for permanent labor certification (PERM), Federal regulations require that the employer first provide notice to its employees that it will file the application. This notice is called a “notice of filing” (or NOF). The regulation requires the employer to post the NOF for at least 10 consecutive business days at the place of employment, for a time period between 30 and 180 days before filing the PERM application. Failure to do so will result in the application being denied.

A question recently arose as to whether an employer is required to provide evidence of the specific dates that it posted the NOF. The US Department of Labor Board of Alien Labor Certification Appeals (BALCA) recently decided this issue in the case In the Matters of Seven Oaks Landscapes-Hardscapes, Inc., July 26, 2013.

In this case, the USDOL Certifying Officer (CO) conducted an audit regarding the employer’s PERM application and asked the employer to confirm that the NOF was posted for 10 consecutive business days between 30 and 180 days before filing the PERM application form. The employer’s response did not disclose the specific dates that the NOF was posted. Subsequently, the CO denied the employer’s labor certification application on the grounds that it did not comply with regulations that require employers to indicate the specific dates that it posted the NOF.

The BALCA court explained that the regulation 20 C.F.R. Section 656.10(d) requires the NOF to have specific content, requires the NOF to be posted in conspicuous places, requires that the NOF be clearly visible and unobstructed, and requires that when asked, the employer must show it complied with the requirements by providing a copy of the posted NOF. However, the court noted that the regulation does not specifically require an employer to provide the exact dates that it posted the NOF.

The court cited a decision made by another BALCA panel in the case In Sonora Desert Diary, which decided that although the regulation does not specifically state that an employer must provide the dates it posted the NOF, the requirement to do so is implicit in the law, and the employer must provide the dates upon request or the application is to be denied.

The court disagreed with the Sonora decision and held that a court should not expand regulations to cure what it thinks is an inadvertent omission. Rather, the duty of the court is to interpret the language of the law as written. Therefore, the court ruled that since such requirement is absent in the regulation, the court may not read the requirement into it, and the employer was not required to disclose the posting dates.

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