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BALCA Says PERM Audit Response Must Show NOF Posting Location

A PERM application is subject to denial when the employer fails to provide some evidence of the location where the notice of filing (NOF) was posted in response to a US Department of Labor Certifying Officer (CO) audit request. Although the employer is not required to list the location in the NOF itself, it must maintain evidence of the posting location, which is in addition to the employer’s attestation location on the PERM application. If you have questions about the PERM process and would like to consult with an attorney, contact The Law Firm of Shihab & Associates. We have over 50 years of combined legal experience in a wide variety of complex and immigration law matters.

This is illustrated in the case of In the Matter of Redyk Travel, Case No. 2011-PER-02738 (decided August 8, 2013). In this case, the CO selected the employer’s PERM application for audit and asked the employer to provide the NOF that was posted. The employer presented the CO with a copy of the NOF. The CO then denied the PERM application on several grounds, one of which was that the NOF did not contain the posting location.

The employer asked the CO to reconsider its denial. The employer argued that the NOF is not required to list the posting location according to regulation. The employer further argued that it could provide evidence to the CO of the posting location because that information is contained in the employer’s attestation on the ETA Form 9089 PERM application. The CO did not reconsider, and the employer appealed to the Board of Alien Labor Certification Appeals (BALCA or Board).

The NOF must be clearly visible and unobstructed while posted and must be posted in conspicuous places where the employer's U.S. workers can readily read the posted notice on their way to or from their place of employment, according to the Code of Federal Regulation 20 CFR § 656.10(d)(1)(ii). The regulation also says that the document requirement can be satisfied by submitting a copy of the NOF to the CO was a statement of where it was posted.

The Board agreed with the employer that regulation does not require the employer to list the location in the NOF, and the Board said the regulation does require the employer to provide the CO with a statement of where it was posted. Consequently, the Board held that the employer’s NOF was not deficient as determined by the CO.

However, the Board held that it was proper for the CO to deny the application because the employer did not provide a statement of the location where the NOF was posted. The Board said that it is not enough that the location is listed in the PERM 9089 application, and that the employer must present some other statement to the CO identifying the location. The employer must provide some additional method that the CO may use to verify that the NOF was posted at the location. If you would like further information about the PERM process or any other immigration matter, please contact our immigration attorneys at The Law Firm of Shihab & Associates, Co., LPA to schedule a consultation with an attorney at an office near you.

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