Recently, BALCA has decided a number of cases clarifying regulations surrounding the PERM labor certification application. Such case law is helpful in providing clear instructions to the otherwise general guidelines provided in the Code of Federal Regulations, which has created guesswork for immigration attorneys and employers attempting to comply with the plethora of PERM rules. The following is a summary of these cases.
Worksite Relocation: BALCA overturned a denial of a PERM labor certification application, relying on the Farmer Memo, where employer had unanticipated work locations, including the possibility of relocation. BALCA noted that the Department of Labor must provide advance notice before imposing new requirements. (Matter of Infosys Ltd, 5/12/16)
Sufficiency of employer’s statement on candidate’s qualifications: BALCA upheld the denial of a PERM labor certification application where the employer failed to investigate further, by interview or other means, the qualifications of the candidate where the candidate’s résumé raised the “reasonable prospect” of the candidate being qualified based on education and overall experience. (Matter of CEO Ally, Inc., 5/12/16)
PERM audit documents: BALCA found that the employer’s job search radio ad and web ad on the internal website met the requirements of 20 CFR §656.17(e)(1)(ii)(B) and (j) where the employer provided an audio recording of the radio advertisement but did not include a text copy, and where copies of its website postings were not dated. (Matter of Waldorf School of Orange County, 11/06/2015)
Verification of employer’s sponsorship: BALCA found that the employer provided adequate information in the record to verify an employer’s sponsorship for a PERM labor certification. It found that the sworn statement that the employer provided with its PERM labor certification application and an email exchange among the ANCP, the employer, and the attorney of record was acceptable proof of sponsorship. (Matter of La Hacienda Meat Market, Inc. 11/04/2015)
Job order and additional requirements: BALCA reversed the denial of the PERM labor certification application that was originally denied following an audit. The CO found that the job duties listed on the job order and that listed on job search website negated job requirements. BALCA reversed the denial citing the holdings in Chabad Lubavitch Center and Symantec Corporation. (Matter of First Tek Technologies, Inc. 11/04/2015)
Opportunity to submit documents during the audit process: BALCA affirmed the Certifying Officer’s denial of the PERM labor certification application due to the fact that the employer had the opportunity to provide the requested documents during an audit process and was barred from providing amended documentation under 20 CFR §656.24(g)(2)(i)-(ii). (Matter of Accent-Media Productions, Inc. 09/23/2015)