BALCA on Validity of Prevailing Wage Determinations22 Jul 2011
Recently, BALCA rendered an opinion on two separate cases regarding the use of expired Prevailing Wage Determinations (PWDs) in PERM labor certification cases. The appeals body within the U.S. Department of Labor (DOL) is the Board of Alien Labor Certification Appeals (BALCA). The useful information that follows is provided to help both employers and employees as such cases demonstrate the complexity and, sometimes, conflicting outcomes when PERM regulations are applied to specific situations.
Overview of Matter of Horizon Computer Services
BALCA issued an opinion in the Matter of Horizon Computer Services, Inc. on May 25, 2011 vacating a denial of a PERM labor certification (PERM/LC). As mentioned above, as an appeals body, BALCA rules on appeals of denied PERM/LCs.
This case had been denied because the required recruitment of U.S. workers had commenced prior to the validity of the PWD and the case had been filed after the PWD expired. As explained below, BALCA agreed with the procedures used by the employer, and allowed the case to go forward even though recruitment was started before the PWD was obtained, and the case filed after the PWD expired.
Overview of Matter of Ecosecurities
Shortly thereafter, however, on June 15, 2011, BALCA issued a related opinion with a different outcome. In the Matter of Ecosecurities, BALCA affirmed a denial of a PERM/LC in which recruitment began before the PWD validity and the case was filed after the PWD expired. The difference turns on the presentation of arguments regarding the initiation of recruitment steps.
Recruitment Occurred During PWD Validity in Horizon Computer Case
The regulations governing PERM/LCs require employers to either file the PERM case during the validity period of the PWD or initiate recruitment during the validity of the PWD. In the Matter of Horizon Computer Services, Inc., the employer commenced its earliest recruitment efforts before the PWD validity period began, and filed the PERM/LC after the PWD had expired. The argument surrounded whether the recruitment efforts must begin (i.e. the first step) while the PWD is valid, or whether it is enough that any recruitment (even if not the first step) occurs when the PWD is valid.
BALCA held that, to use an expired PWD to file a PERM case, the employer must have initiated at least one recruitment step during the PWD’s validity period. It allowed this case to go forward because part of the recruitment had occurred while the PWD was valid. BALCA did not require that recruitment wait entirely until the PWD validity period. Since the employer had met the requirement with respect to the recruitment timing, it was determined to be acceptable to file the case after the PWD expiration.
PERM Filed After PWD Expired in Matter of Ecosecurities
In the Matter of Ecosecurities, the employer filed the labor certification one day after the PWD expired. The PWD expired on a Sunday. The employer argued that the deadline for filing should be extended, because it fell on a weekend. Generally, legal deadlines that fall on weekends or holidays are automatically extended to the next business day.
BALCA held that the case was correctly denied because labor certifications can be filed online 365 days a year. Additionally, unlike the Matter of Horizon Computer Services, BALCA focused on the fact that the earliest recruitment step occurred before the PWD validity period. It was found therefore that, since recruitment was initiated before the PWD, the case could not move forward unless it was filed during the PWD validity period.
There was no consideration of the argument used in the Horizon Computer Services cases regarding conducting any one of the recruitment steps during the PWD validity period. The more restrictive interpretation of requiring the initiation (i.e. first step) of the recruitment process to occur during the PWD validity therefore was applied to the detriment of the employer and employee involved in this case. Thus, there is conflict on this issue in BALCA cases.
Issue Not Addressed at AILA Conference in June 2011 by DOL
At the 2011 Annual AILA Conference, during the open forum, the DOL indicated that it reviews BALCA decisions and then creates frequently asked questions (FAQs) as guidance for employers and attorneys. No specific clarification was given to reconcile these two BALCA decisions. These technicalities are complex and confusing and even the DOL may not clearly be able to articulate the reasons for distinguishing these two situations. Descriptions of these decisions and cases are presented to alert MurthyDotCom and MurthyBulletin readers to the importance of such nuances and the timing and expiration of the PWD.
Safe Strategy to File the PERM When PWD is Valid
The safest approach is to file the PERM during the validity of the PWD and not take any chances. Whenever possible, it is best to take a cautious approach and not look at just one BALCA case to take advantage of its outcome – particularly if the case conflicts with another case around the same timeframe on similar issues.
A Good Lawyer Can Help
Working with a good immigration lawyer can save a lot of time and money, and provide peace of mind for both the employer and the employee. We at the Murthy Law Firm provide employers with guidance for PERM recruitment and carefully track dates and deadlines to avoid potentially problematic situations, such as those described in these BALCA cases.
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