BALCA Decision regarding PERM Notice of Filing Posting Dates

The PERM application process requires employers to completely adhere to PERM regulations during the recruitment phase. Failure to comply even one seemingly minute detail will subject the application to denial, and the employer will get no second chances and cannot go back and fix the error. In most cases, the employer is forced to start the entire PERM application process all over again from the very beginning. This article will discuss the duty to provide evidence of the notice of filing (NOF) posting dates. 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.

Federal regulations mandate that prior to filing a PERM application, the employer must provide notice that the employer intends to file a permanent labor certification on behalf of a foreign national. The notice must set forth specific language and the address where US workers may file a complaint with the USDOL. This is done by posting what is called a “notice of filing” (or NOF). Employers are required by regulation to post the NOF for no less than 10 consecutive business days at the place of employment, during the period of time between 30 and 180 days prior to filing the PERM application. The application is subject to denial unless this step is properly completed.

A recent case decided a question about whether an employer must provide evidence of the specific dates that the NOF was posted. The US Department of Labor Board of Alien Labor Certification Appeals (BALCA or Board) recently answered this question in the case In the Matters of Seven Oaks Landscapes-Hardscapes, Inc., July 26, 2013.

In this case, the US Department of Labor Certifying Officer (or CO) initiated an audit of the PERM application and requested the employer to verify that the NOF was posted for the correct time period in accordance with the regulation. The employer responded but did not disclose the precise posting dates of the NOF. Consequently, the CO denied the application on the basis that it failed to comply with the regulation requiring employers to disclose the specific NOF posting dates. The employer filed an appeal with the Board.

The Board noted that in the prior case of In Sonora Desert Diary, the BALCA panel issued a decision that said although the regulation does not specifically say the employer must disclose the NOF posting dates, the requirement is implicit, and the employer must provide them upon request or the application is subject to denial.

The Board disagreed with the Sonora case and held that a court should not expand regulations to cure what it thinks is an inadvertent omission. Rather, the responsibility of a court is to interpret the language of the law as written. Thus, the Board ruled that because the requirement is absent from the regulation, the Board may not imply that the requirement is there, and the employer was not required to disclose the posting dates. The employer’s appeal was successful. 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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