In a recent decision for a USILAW client, the Board of Alien Labor Certification Appeals (“BALCA”) vacated the wrongful denial of four PERM Labor Certification cases and remanded them for certification. The Certifying Officers (“COs”) had previously denied certification on the basis that the dates the PERM applications were filed did not comply with the mandatory waiting period. Generally, ads must be placed no less than 30 days before filing but no more than 180 days before filing. 20 C.F.R. § 615.17(e)(1)(ii). USILAW counsel requested reconsideration, and the COs forwarded the cases to BALCA for administrative review. BALCA consolidated the cases, as the facts and common questions of law were materially indistinguishable.
In the requests for appeal, USILAW cited a Department of Labor (DOL) Frequently Asked Questions (FAQ) document (“FAQ Document”), pointing out that, throughout the FAQ document, the DOL refers to the “30 – 180-day timeframe”, as explained above, for the additional recruitment steps, but does not specify when the count for that timeframe should begin. The language in the FAQ document differs when referring to the timeframes of the mandatory versus additional forms of recruitment. For mandatory recruitment steps, the 30-day count begins on the last day of posting (“the last day of the [notice of] posting must fall at least 30 days prior to filing,” and “the 30 day job order timeframe must end at least 30 days prior to filing.” FAQ Document at 8 and 12.). The language used for additional recruitment steps, however, indicates that the 30-day count begins when advertisements are placed (“For journals…the advertisement must be placed at least 30 days, but no more than 180 days, prior to filing the application.” Id. at 10.)
Our team successfully argued that beginning the 30-day count on the start of the run dates (the date the ads are placed) complies with the required timeframe because there is no specific length of time the additional forms of recruitment must run.
In its consolidated decision, BALCA found the denials to be unduly restrictive. In the discussion, BALCA states:
“The regulation at 20 C.F.R. § 656.17(e)(l)(ii) and the associated advertising requirements at issue here, 20 C.F.R. §§ 656.17(e)(1)(ii)(B), 656.17(e)(1)(ii)(C), and 656.17(e)(1)(ii)(G), do not prescribe a specific length of time that these advertisements must be placed. ‘Adopting the CO’s interpretation of 20 C.F.R. § 656.17(e)(l)(ii) would undermine the labor market test that is central to labor certification determinations,’ as ‘an employer recruiting using these mediums would satisfy this regulation if the advertisements were placed for one day on the thirty-first day before filing the Application, which would not have reached nearly as many potential U.S. applicants, but an employer . . . could advertise in these mediums for several months and certification could be denied if these advertisements ended on the twenty-ninth day prior to filing.”
Appeals to BALCA are notoriously difficult to win. This decision provides renewed clarity on the matter of recruitment timing and may mark a trend in easing restrictive interpretations of timing regulations by government agencies.
USILAW routinely handles PERM Labor Certification filings for clients in a wide variety of industries. Our firm can assist with all stages of the PERM Labor Certification process, as well as any other business immigration process. Our team has the expertise to handle matters spanning from simple to complex cases. Please contact us if we can be of any help and we would be honored to assist with your immigration-related needs.
Written by Brittany Barnett.
