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Bloggings: May 14, 2008

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

What's going on at BALCA?

BALCA has issued 243 en banc decisions since the first BALCA decision in 1988. Interestingly, most of the decisions were issued in the first five years. The last decision issued was the now famous PERM case HEALTHAMERICA, 2006-PER-1 (July 18, 2006) (en banc), and in recent years, en banc decisions have been far and few between.

This may be interpreted to mean that most of the important labor certification issues have been resolved. Remember that BALCA cases do not officially serve as precedent decisions, since the agency has not promulgated a regulation to that effect. DHS by contrast has regulations requiring officers to follow precedent decisions, but DOL does not.

There is no systematic presentation of BALCA decisions. They were maintained haphazardly, and, in fact, not all the decisions are available, since the ILS company, which maintained them until May 2000, when it discontinued its BALCA service, had difficulty obtaining 100% of the decisions from the ALJ office.

The immediate question that comes to mind is whether BALCA will revisit its pre-PERM decisions and reinterpret them under PERM, or whether the pre-PERm decisions are still good law which can be relied upon. The fact is that BALCA is doing a little of both.

First, the PERM rule presents new issues which are being dealt with as cases of first impression, with little reference to previous BALCA decisions. Second, where appropriate, prior BALCA decisions are applied and followed.

One noticed when PERM began that there was a dirth of substantive issues. Most cases dealt with typographical and data input errors and glitches. The Board's decision in HealthAmerica brilliantly set the standard for PERM. Errors would not be tolerated, if they were the employer's fault, but they would be "correctable" if they were the DOL's fault. Add to that the gloss that DOL had to give fair and adequate warning of its "zero tolerance" policy, and that is the essence of the Healthamerica en banc decision.

Many newer practitioners were weaned on the RIR craze of the last decade, and the newest of them have only practiced under the PERM rule. Beware! The old rules of BALCA still apply. Issues that have been reviewed recently by BALCA include the following:

  • Employer and alien may not be the same.
  • Experience may not normally be gained on the job.
  • Seasonal workers like gardeners are not full-time workers.
  • Employers may be requried to prove ability to pay.
  • Good Faith Recruitment requires written and telephone contact to workers.
  • Interview process must be timely (generally less than 14 days from date of contact).
  • Actual job sites.

All the above are issued that BALCA has dealt with recently, although under the pre-PERM regulation, they are easily cross-walked to PERM!

This topic will be thoroughly covered in the new PERM BOOK II, which includes a separate section with an updated BALCA Deskbook. The last one is sorely out of date. BALCA cases in the PERM BOOK II will be categorized by Section of Regulation, Name of Employer, Docket Number, Date, and brief description of case.

The idea of the Deskbook is that practitioners should be able to easily locate cases relating to specific issues. The entire PERM BOOK II is organized around the regulations, and the Deskbook will correspond appropriately to the regulations as well.

Current backlogs at BALCA are about 14 months, and Motions to Reconsider about the same. Since PERM is supposed to be a streamlined, electronic process, one should avoid BALCA review whenever possible. Under the pre-PERM rule, there was a six month waiting period after denial before a new case could be filed. Under PERM there is no such requirement, so if a case is denied, the Employer is urged to correct the error (if possible!) and refile.

Refiling depends on the recruitment steps being completed within the previous 180 days, including a waiting period of 30 days. If practitioners prepare and file PERM applicatilons promptly, they can be filed as quickly as 61 days after commencement of recruitment!