Proof of Job Order Publication Is Not Required for PERM Certification: BALCA | Practical Law

Proof of Job Order Publication Is Not Required for PERM Certification: BALCA | Practical Law

The Board of Alien Labor Certification Appeals (BALCA) sitting en banc ruled that an Office of Foreign Labor Certification certifying officer may not deny permanent labor certification based on an employer's failure to provide proof of publication of the State Workforce Agency job order containing the text of the order. In re A Cut Above Ceramic Tile clarifies recordkeeping requirements for PERM labor certification applications.

Proof of Job Order Publication Is Not Required for PERM Certification: BALCA

Practical Law Legal Update 8-518-4165 (Approx. 3 pages)

Proof of Job Order Publication Is Not Required for PERM Certification: BALCA

by PLC Labor & Employment
Published on 12 Mar 2012 • USA (National/Federal)
The Board of Alien Labor Certification Appeals (BALCA) sitting en banc ruled that an Office of Foreign Labor Certification certifying officer may not deny permanent labor certification based on an employer's failure to provide proof of publication of the State Workforce Agency job order containing the text of the order. In re A Cut Above Ceramic Tile clarifies recordkeeping requirements for PERM labor certification applications.
On March 8, 2012, the Board of Alien Labor Certification Appeals (BALCA) sitting en banc issued an opinion in In re A Cut Above Ceramic Tile reversing a BALCA panel's ruling that an Office of Foreign Labor certifying officer (CO) properly denied permanent labor certification based on an employer's failure to provide proof of publication of a State Workforce Agency (SWA) job order containing the text of the order.
In support of its decision, the BALCA found that:
  • The plain language of the PERM regulations provides that listing the start and end dates for a job order on the PERM application serves as documentation of SWA job order placement, but does not require an employer to provide proof of the order's publication.
  • The regulatory history of the PERM rule provides no indication that an employer must retain proof that an SWA job order ran.
BALCA noted that the CO may request documentation of an SWA job order, and that an employer should provide it when asked, if available, but held that the CO may not deny certification solely based on an employer's failure to provide it.
Before the decision, BALCA authority was split on the question of whether proof of publication of a job order is required for permanent labor certification. The en banc decision resolves this split, clarifying for employers the documentary requirements necessary for PERM labor certification for foreign workers.
For additional information on PERM labor certification, see the following practice notes:

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