BALCA–Your PERM Case is Denied!

Over the course of the last year, the Board of Alien Labor Certification Appeals (”BALCA”)has been posting a series of appeal decisions. These BALCA decisions routinely deny the labor certification appeal, even for minor, de minimis errors of the employer and/or counsel. An example of today’s postings include the following:

BALCA Affirms Denial Based on Lack Of FEIN on Date of Filing for Domestic Household Employerhttp://www.aila.org/content/default.aspx?docid=30340 BALCA affirms denial based on the fact that the employer, a domestic household, lacked a valid FEIN on the date of filing the labor certification. Matter of Edward J. Tierny, 2009-PER-00314 (7/13/09). AILA Doc. No. 09102061.

BALCA Affirms Denial Because the Job Order Was Conducted Outside the 180 Day
Requirement http://www.aila.org/content/default.aspx?docid=30342BALCA affirms the PERM denial based on the fact that the application was filed 187 days after the job order was placed, and consequently, the job order was conducted outside the 180 day requirement. Matter of Spires Restaurant, 2009-PER-00125 (8/25/09). AILA Doc. No. 09102063.

BALCA Affirms Denial Based on Employer’s Failure to State Experience Requirement on PWD Requesthttp://www.aila.org/content/default.aspx?docid=30343 BALCA affirms the PERM denial based on the employer’s failure to state the experience requirement on the Prevailing Wage Determination request to the State Workforce Agency. Matter of Florida Restaurant Group, LLC, 2009-PER-00014 (8/25/09). AILA Doc. No. 09102064.

I could list dozens of other denials from BALCA on similar ticky-tack issues, but I think you get the point–BALCA does not care that you or the employer misread one line in a hundreds of pages of FAQs, regulations, or liaison minutes. You missed it and that is not DOL’s problem. No Soup For You. Refile. Get to the Back of the Line. We do not care how it affects your business. The real tragedy here is that BALCA gives you this decision 4-5 YEARS after you filed the original labor certification, adding insult to injury.

Some would say this is a reason to have a simplified immigration system as it relates to the permanent employment of foreign nationals in the United States. I cannot disagree. The promise of PERM–quick approvals and denials based upon “real world” recruitment, is an illusion, nothing more. PERM is a blight on our immigration system. It does not protect American workers in any serious way, it asks employers to jump through more hoops than a show dog, and puts lawyers in the unenviable positions of advising employers on how to navigate a set of non-real world regulations, FAQs, and liaison minutes (when we can actually get answers), using a poorly developed computer filing program so complex that Einstein would have to invent a new Theory of PERM Relativity to explain it to a layman!

Who would have thought that we would pyne for days of “regular” labor certifications! What a farce this system has become in the name of progress.