September 17, 2019

September 17, 2019

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September 16, 2019

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Recent and Important BALCA Decisions for Employers

The Board of Alien Labor Certification Appeals (“BALCA”) recently issued two decisions employers should note. First, in Matter of Mphasis Corporation, BALCA reversed a denial of a PERM labor certification issued by the Certifying Officer (“CO”) on the grounds that the Employee Referral Program (“ERP”) recruitment step was properly started. The underlying challenge was the ERP start date listed on the Form 9089 reflected a date not covered by the Prevailing Wage Determination (“PWD”). In a second case, Matter of Kams Automotive, Inc., BALCA upheld the denial issued by the CO due to a typographical error on Form 9089.

  1. In Matter of Mphasis Corporation, the Employer used its internal ERP as the first recruitment step for the PERM process. The CO denied certification holding recruitment did not begin during the validity period of the PWD. The matter was forwarded to BALCA after the CO reconsidered and denied the Employer’s request for reconsideration/review. In its decision, BALCA found that the determining factor in assessing when the ERP first recruitment step has begun is when the company’s employees are informed that a vacancy exists and can make a referral for the position. Should an employer have a pre-existing ERP in place, then the start of that particular recruitment step must be calculated from the date the employees learn about the vacancy. In general, this can be done through an internal posting on the employer’s website, or through the Notice of Filing.  This pro-employer decision gives companies the ability to utilize pre-existing ERPs as a viable PERM recruitment method.

  2. In Matter of Kams Automotive, Inc., the Employer erroneously provided an inaccurate expiration date of the PWD listing a date beyond the one-year maximum allowed by the regulations. BALCA held that any modification to PERM applications filed with the U.S. Department of Labor (“DOL”), even those that are minor or immaterial, is prohibited by the regulations. BALCA reiterated that this regulation includes the correction of harmless or obvious typographical errors. This decision reaffirms that employers have no margin of error when filing PERM applications and should ensure in-depth reviews of PERM applications are performed before submission to the DOL, which BALCA translated as a “letter-perfect application”. Interestingly, BALCA also stated that “were it not for the regulation 20 C.F.R. § 656.11 (b), we would not hesitate to vacate the denial,” implying that a regulatory change is required before BALCA can act in the alternative. These two cases follow a string of pro-employer BALCA decisions that were issued last week.

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About this Author

Ian R. Macdonald, Greenberg Traurig Law Firm, Atlanta, Immigration, Labor and Employment Attorney
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Ian R. Macdonald is Co-Chair of the Business Immigration & Compliance Practice and Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. He focuses his practice on developing, assessing and managing global mobility programs for multinational companies on a range of challenges affecting the movement of people capital domestically and internationally, including secondment agreements, benefits transferability, local host country employment concerns and immigration.

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