BALCA Affirms Denial of PERM Case with Old Advertisements Posted Oct 27, 2006 ©MurthyDotCom The Board of Alien Labor Certification Appeals (BALCA) reviewed the Matter of Shogun at Bey Lea on behalf of Victor Perez Rivera. BALCA's finding was that the U.S. Department of Labor's Certifying Officer's (CO's) decision to deny the PERM labor certification was proper. ©MurthyDotCom Reason for the PERM Denial ©MurthyDotCom The basis for the PERM denial was that the supporting documentation proved that the advertisements for the position were placed more than 180 days before the PERM application was filed. Though there was a typographical error on the form, since the underlying evidence did not support the approval of the PERM case, BALCA found that the CO was justified in issuing a denial. ©MurthyDotCom Background of the Case ©MurthyDotCom The position in this PERM case was for a hibachi chef. On appeal, the employer included an advertisement from an IT trade publication for the position. BALCA found that this advertisement did not meet the advertising requirement for two reasons. (1) The advertisement had been placed more than 180 days prior to the PERM filing. (2) The advertisement was not in a newspaper of general circulation, in the area of intended employment most appropriate to the occupation for workers likely to apply for the job opportunity. BALCA also noted that including this evidence on appeal was unacceptable because the advertisement had not been listed on the PERM application. While BALCA has recognized that petitioners may include documentation retained under the recordkeeping provisions of PERM when filing an appeal, this advertisement was not listed on the PERM application. Therefore, BALCA did not deem the ad part of the recordkeeping provisions of PERM. ©MurthyDotCom Summary ©MurthyDotCom BALCA's decision in this case highlights the need to provide full and accurate information at the time of filing the PERM application and to advertise in the required publications and within the timelines described in the PERM regulation. BALCA demonstrated willingness to follow common-sense rules that allow for approvals in cases with small technical errors in earlier PERM decisions. But there is a limit to this flexibility. It can be difficult, therefore, to win a BALCA appeal when there are inconsistencies in the PERM application. Copyright © 2006, MURTHY LAW FIRM. All Rights Reserved
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