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Bloggings on PERM Labor Certification

by Joel Stewart

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

December 01, 2008

BALCA Decisions: INA v PERM

Remember that labor certifications that have been denied by Certifying Officers may be reviewed by the Board of Alien Labor Certification Appeals (BALCA). The Board's decisions offer a large measure of judicial objectivity, when compared to the decisions of Certifying Officers who view legal issues from the point of view directly in line with those of the Department of Labor. BALCA has built up a large body of agency decisions that bear the weight of "law" while lesser memoranda, opinions and letters from DOL officials offer only guidance, and not law.

Although the PERM Rule replaced previous labor certification regulations in 2005, the two sets of regulations still continue to exist side-by-side. The old regulations continued to apply only to cases that were in the pipeline. While the Rule is silent on the applicability of BALCA cases that were decided under the old rule, the decisions of BALCA are still applicable to the newer PERM cases.

BALCA decisions for pre-PERM cases are marked "INA" while PERM cases are marked PER. Unless an employer has any cases pending from the pre-PERM era, it is better to focus on PERM decisions, i.e., decisions determined under the new PERM rule, than on INA decisions, which are decided under the rule in effect prior to March 28, 2005.  

Last week, on November 26, I hosted an ILW.COM telephonic conference, where we covered some PERM Practice Tips. The next two conferences will be on December 18, 2008, and on January 8, 2009. The conferences cover many basic concepts, however, we analyze them on an advanced level as well. The speakers offer insights into current PERM practice.

Lawyers, and the employers they represent, are guided by the Statute and the regulations promulgated thereunder, however, Administrative Law Judges play an important part by reviewing denials and issuing important agency interpretations.

Pre-PERM BALCA cases are still reported and summarized for the convenience of practitioners by various agencies and groups, but these BALCA cases are extremely repetitive and cumulative. In one such case, the employer found a US worker over-qualified. As long as a worker meets the minimum qualifications, he or she must be considered qualified, and over-qualifications do not serve as lawful reasons to reject otherwise-qualified job applicants. The term "US worker" is defined in the regulations as any of the following: permanent resident alien (green card holder), US citizen, asylee, refugee, and temporary residents under the old Immigration Reform and Control Act (amnesty). Persons who are not considered to be US workers and thus not considered to be qualified as US workers during the recruitment process are those who have only temporary work permits, including  Employment Authorization Documents. Examples of persons who are not "US workers" are persons with H-1B, L-1, B-1, and other kinds of temporary work permits. 

BALCA has also considered the definition of full-time work itself in the context of gardeners working in the North. If they are laid off in the winter or put on a minimal work schedule, they will not be considered to be performing full-time. While 35 hours is generally the cut-off point between part-time and full-time work, there are some professions which involve less than 35 hours per week, either as stipulated by law or by industry standards. Such workers might be airline pilots or persons working with dangerious materials.

An important issue is the timeliness of contacting of US workers. It has been held many times by BALCA that more than 10-14 days is too late for an Employer to respond to resumes from job applicants. DOL has created a presumption that interviews should be held promptly to show good faith. Telephone interviews are permissible, but the length of the interview may be construed adversely to the Employer. For example, if the telephone records or logs show that the contact was only for a few minutes, or if the interviews were scheduled too close together, a Certifying Officer may deny the application.

The method of contact is also an issue. Attempts to call US workers, who do not return calls, is considered to be insufficient. Workers who are not reached by phone must  by contacted by mail, and by certified mail with return receipt requested. BALCA places the burden on the employer to prove that the US worker received notification of a job interview, whether by phone or letter. This has been held to be so, even if the worker does not pick up a certified letter from the post office. Furthermore, responses by spouses and others living in the same home are not despositive and do not count as bona fide contact with the worker.

BALCA decisions are available to the public on the internet. For an up-to-date analysis, look for decisions marked PER or INA. For a more complete analysis on this topic, look at my BLOG entry on May, 2008 at