Labor Department to reconsider PERM denials in light of BALCA ruling

The Department of Labor will reconsider cases that were denied on grounds that have since been overturned by a recent en banc ruling by the Board of Alien Labor Certification Appeals. That decision held that job advertisements conducted as “additional recruitment steps” for a PERM labor certification application do not need to meet advertising content requirements for “mandatory recruitment steps” under 20 CFR §656.17(f).

In light of the ruling, the Department of Labor will reconsider denials that were based on the erroneous interpretation of the advertising requirements. The department will only accept cases in which a timely notice of appeal or motion to reconsider was filed.

As part of the labor certification process, the employer in the case fulfilled mandatory recruitment steps, including newspaper ads, for the position of financial programmer analyst. The employer also posted online ads on a job-search website to meet a PERM requirement that three of 10 additional recruitment steps be taken to test the labor market. The certifying officer denied the PERM, because the employer’s online ads did not match the newspaper ads. In its reversal of that decision, the Board found that the regulations do not require that additional recruitment steps satisfy the stricter content requirements for mandatory steps. Berry Appleman & Leiden represented the employer in the case.

BAL Analysis: Companies that were denied labor certification on the grounds that their additional recruitment steps did not follow mandatory content requirements may be eligible for reconsideration. Employers who are still within the appeal period are urged to file an appeal or motion for reconsideration to preserve their rights.

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