January 17, 2011
A recent decision handed down by the Board of Alien Labor Certification (BALCA) ruled that the Certifying Officer’s (CO) demand for proof a State Workforce Agency job order was actual run is not covered by permanent labor certification (PERM) regulations. It is an issue which could easily present itself in a community like Columbus, OH.
In the case in question, an employer had its initial request for a nonprofessional position (baker) to be certified denied on the grounds it could not be verified as a legitimate business. After the employer responded with what it deemed evidence it was a business entity the CO issued an audit requesting recruitment efforts as well as some proof of publication by the SWA containing content of the job order.
The employer’s audit response contained fax proof of a job order request made to the New Jersey Department of Labor as well as a copy of the job order form.
The CO ultimately denied certification, stating that the documentation was not what the audit requested. The employer countered that the denial was based on proof of the SWA job order and both the fax it provided, along with the copy of the original job order meant it was in compliance. The employer added that certified copies were not aviailable from the SWA because of a record purge prior to the audit and that the bank under which the order had run no longer existed.
Based on a requirement that employer must retain documentation supporting application for five years the CO denied reconsideration and forwarded the case to BALCA.
The judge ruled that a pre-filing step for a nonprofessional occupation is placing a job order with the SWA serving that particular area. Regulations state “The start and end dates of the job order entered on the application serve as documentation of this step.” Documentions supporting the application must also be retained by the employer for five years, starting with the date of filing.
But the judge ruled that PERM regulations do not state specifically what type of documentation is required to establish the job order was placed in compliance. The judge wrote “. . . the CO clearly wanted concrete evidence that the job order was actually run rather than merely evidence that the job order was placed.” He added that “we are not convinced the regulations permit the CO to require such documentation.”
The ruling then cited several sections of the regulation which mention that “the start and end dates of the job order entered on the application serve as documentation.” The regulations did not, in the judge’s belief, account for SWA documentation being necessary.
The judge found that it was unreasonable for the CO to require documentation the SWA job order was actually run and ordered the CO to grant certification. Another judge added he concurred with the primary ruling regarding SWA documentation but expressed concerns about other aspects of the employer’s success as proving the candidate minimum requirements and would have recommended further inquiry from the CO.