BALCA Suggests Employer Use Services of Immigration Attorney
Posted Nov 23, 2007
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The Board of Alien Labor Certification Appeals (BALCA) issued a denial decision on October 15, 2007 in a case in which a self-represented applicant did not comply with advertisement requirements. As many MurthyDotCom and MurthyBulletin readers may know, Labor Certification (LC) is a process that involves specific and sometimes complex requirements. These requirements include proper advertisement and recruitment processes fundamental to the purpose of the LC. Without meeting these requirements, the LC cannot be approved, even if the circumstances of the case are extremely sympathetic, as they were in this BALCA case.
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Self-Represented Applicants Must Meet All LC Requirements
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The BALCA panel of judges recited the facts of the case, which involved a self-represented applicant's proposal to hire a Home Health Care Aide. The Home Health Care Aide was needed to assist the applicant's / employer's elderly wife, who was suffering from Alzheimer's disease. The LC application, however, indicated there was a Sunday edition of a newspaper of general circulation available, but that no advertisement was run in the Sunday edition. This is contrary to the PERM LC requirements. The application indicated that a single ad had been placed, several years before the filing of the PERM LC. Thus, the recruitment was neither within the proper timeframe, nor was it sufficient.
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The applicant argued that newspaper advertisement was not needed, since the foreign national had been working for him for over three years. Of course, those familiar with the LC processes know that, as set out in the decision, this demonstrates a clear misunderstanding of the purpose of the labor certification. The labor certification is intended to ensure that there are no qualified U.S. workers available and willing to fill the offered position. Therefore, despite the urgent and undisputed need for a Home Health Care Aide, the LC case was denied by the U.S. Department of Labor (DOL), which was reaffirmed by BALCA.
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Assistance of Counsel Advisable
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The BALCA judges, although sympathetic to the extenuating circumstances of the case before them, nevertheless found that they were unable to overturn the LC denial. They specifically noted that "PERM is an exacting process, and unforgiving of mistakes in filling out the application or misunderstandings about the regulatory requirements." They further stated that, in light of "the legal requirements of the labor certification process," an applicant "might consider engaging an immigration attorney to assist …in understanding and complying with the regulations."
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Conclusion
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Individuals who find they are struggling to understand the legal requirements for a specific procedure often find it advantageous to hire legal counsel. It is not uncommon for those who are unfamiliar with the immigration process to underestimate its complexity. The existence of a form-driven process sometimes leads them to think that it is all a simple matter of entering data onto forms. This is not the case any more than tax law is a simple matter of filling out some forms. Generally, it is safer to consult and hire a professional before wasting time and money and, most critically, opportunities.
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