BALCA Applies Recent Legal Decision to PERM Case Denied Five Years Ago

The permanent labor certification process (PERM) allows employers to hire foreign nationals to work permanently in the United States. Prior to filing a PERM application for a foreign worker with the U.S. Department of Labor (DOL), U.S. employers must conduct a cumbersome recruitment process to first attempt to hire a U.S. worker. For applications involving a professional occupation, the employer must complete two mandatory recruitment steps, as well as three of ten additional steps. The regulations apply rigorous content requirements to the recruitment steps. Last year, in Matter of Symantec Corp., 2011-PER-1856 (July 30, 2014), the Board of Alien Labor Certification Appeals (BALCA), which is responsible for reviewing PERM denials, held that the content requirements do not apply to the additional recruitment steps, but only to the mandatory steps.

On July 9, 2015, BALCA issued a decision in Matter of Computer Sciences Corporation, in which it applied Matter of Symantec Corp. to reverse a PERM denial for inclusion of language relating to travel and work from home office in some of the ads used to recruit U.S. workers. The employer in Matter of Computer Sciences Corporation had filed a PERM application for a Program Office Senior Manager position on February 4, 2010.  DOL denied certification based on the Employer’s inclusion of the language “Willingness to travel; may require work from home office.” DOL considered the language to be “job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089” in violation of the PERM regulations relating to recruitment content. The employer filed a request for reconsideration, which was also denied and forwarded to BALCA for review.

Because the PERM application in Matter of Computer Sciences Corporation was denied solely on the ground that two of the employer’s additional recruitment advertisements did not meet a content requirement with which they need not comply, BALCA reversed the denial of certification in accordance with Matter of Symantec Corp and directed the DOL to grant certification.

PERM is an exacting process in which employers bear the burden of proof. Failure to follow the PERM requirements closely may lead to denial, even after successful recruitment efforts have been completed. Therefore, we do not recommend proceeding with a PERM case without the benefit of experienced counsel.

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