Update: BALCA Affirms Denial of PERM Application Where ad did not Show Employer's Name

The Board of Alien Labor Certification Appeals (“BALCA”) in Little Thai Kitchen, II affirmed the Certifying Officer’s denial of a PERM application filed for a “Chef” position because the advertisement failed to specify the identity of employer.

In Little Thai Kitchen, II When advertising, the employer, had directed potential US Worker applicants to transmit resumes via facsimile to the attention of the owner “Natarajan.” The US Department of Labor’s Certifying Officer (“USDOL CO”) issued a letter auditing the PERM application. The employer submitted a proof of the advertisement showing the name of the employer missing. The Certifying Officer thereafter denied the application citing the reason that the employer’s name was missing from the advertisement. The employer appealed the denial to BALCA.

The employer stated that notwithstanding the assertion by the USDOL CO, the employer’s name was listed and that the facsimile number belonged to the employer. Furthermore, the employer argued that it was “harmless error.” BALCA rejected the employer’s argument stating that a review of the regulatory history of the PERM rules indicate that the employer’s name in the advertisement must be shown for the following reasons: (1) to enable potential applicants to better determine whether they wish to apply for the job; (2) to address the possibility that some applicants would not apply to a blind advertisement; and (3) to assist the CO in matching the advertisement to the position in question in the event of an audit.

BALCA further reasoned that even though the advertisement had directed applicants to send resumes via facsimile to Mr. Natarajan, it had not stated that he was the President and CEO. There was no way for the USDOL CO to determine whether applicants were deterred from submitting a resume because the advertisement appeared to be a blind. BALCA also stated that it would be burdensome for the USDOL CO to investigate the impact of the absence of the employer’s name on the effectiveness of the advertisement for PERM application purposes. For all of the above, BALCA affirmed the denial.

This case emphasizes the experience required to effectively file an approvable PERM application. Approval of a PERM application may very well hinge on a seemingly very minor requirement. In this specific case not only did the employer expend time and effort and resources in filing the initial PERM application, not to mention attorney fees and costs, but also expended a 36 month waiting time between initial processing times, audit review time (which was estimated at 20 months), and eventual appeal only to find out that the entire application was denied because of the employer’s failure to adhere to a very simple requirement: including the employer’s name in the advertisement.

It is highly advisable to retain the services of a qualified and experienced immigration counsel to navigate through the complicated rules of alien labor certification. The law firm of Shihab Associates Co. LPA is experienced in filing complex PERM applications. We enjoy a high success rate because of our meticulousness in following and adhering to the regulatory directives and instructions. If you have any questions about an application for PERM alien labor certification, contact one of our attorneys at (800) 625-3404.