BALCA Agrees Handwritten Date on Ad Sufficient for PERM LC08 Sep 2015
In a recent Board of Alien Labor Certification Appeals (BALCA) decision, BALCA agreed with the employer that a handwritten date noted on a printout of an advertisement for a job satisfies the employer’s requirement for documenting dates of the ads on the company’s website. As explained here, one of the most interesting twists in this case is that prior BALCA judges denied more than 50 nearly identical cases filed by the same employer.
The PERM labor certification (PERM LC) process is intended to protect the U.S. labor market. An employer must engage in extensive recruitment efforts in order to demonstrate that the company was unable to locate a qualified, willing, and available U.S. worker. In the event of an audit, there are detailed requirements regarding the nature of such recruitment efforts and the corresponding evidence that must be made available to the U.S. Department of Labor (DOL). The PERM LC process is highly technical, with outcomes often hinging on seemingly insignificant details. If a case is denied by the DOL, the employer may appeal the decision to BALCA.
Posting Dates of Advertisements on Employer’s Website
One type of recruitment that can be used in PERM LC cases is one in which the employer places ads for the position on the company’s own website. The proof of such advertisements must be in the form of dated copies.
In the case before BALCA, Matter of DGN Technologies, Inc., the PERM LC was denied because the copies of the website advertisements submitted with the audit response carried only handwritten notations of the posting dates of the ads. Even after reconsideration, the certifying officer (CO) stood by the decision and again reaffirmed the prior denial of the case. The CO did not consider a handwritten notation sufficient to tie the job offer to the advertisement on the website.
FAQs Allow for Alternative Evidence in Audits
On appeal, BALCA reviewed the requirements for providing dated copies of website advertisements. It stated that dated copies of the actual pages are primary evidence that an employer may use as proof. However, in overturning the denial of this PERM LC, BALCA’s panel of judges pointed to the information provided in the frequently asked questions (FAQs) section on the Office of Foreign Labor Certification (OFLC) WebSite.
Per the FAQ on the topic of recruitment proof, an employer may submit alternative evidence in the absence of primary evidence when responding to an audit request. The FAQ specifically allows for submission of an affidavit from an appropriate company official attesting to the website posting of the job. The acceptance of such evidence is not automatic. However, BALCA disagreed with the CO’s assessment that the handwritten date was insufficient. Rather, BALCA noted that the requirement of submission of dated copies of the website ads is not limited to electronically dated copies.
Further, BALCA explained that no signature or attestation is needed with the date notation and that the FAQ implies some level of flexibility in this matter. Thus, while it also indicated that the regulation may have intended to require electronically dated copies, BALCA found that the employer had met the terms of the regulation.
BALCA Takes Note of Employer’s Other Denials
One unusual factor that appears to have led to a favorable decision was that this particular panel of BALCA judges was aware of the dozens of denials this employer had received on cases filed around the same time with almost identical fact patterns. Without saying so precisely, it seems that these judges believed that the employer must have really placed the ads in question, given the volume and timing of the PERM LC filings.
Relatively few employers would rely on handwritten notes in a PERM LC filing as evidence that the recruitment requirements had been met. This case, however, highlights the types of highly technical and complex issues and evidence requirements that one must navigate to prevail in these types of cases. The Murthy Law Firm is available to answer questions and represent employers in PERM LC matters.
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