The permanent labor certification process (also referred to as PERM) allows an employer to hire a foreign national 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. Demonstrating that the recruitment process was correctly undertaken and failed to yield an able, willing and qualified U.S. worker is a required part of the PERM application. The regulations contain specific requirements for recruitment documentation that must be retained by the employer and submitted in response to a potential audit by DOL. One such document is a recruitment report signed by the employer or the employer’s representative.
On May 14, 2015, the Board of Alien Labor Certification Appeals (BALCA), which is responsible for reviewing PERM denials, issued a decision in Matter of NYC Department of Education, upholding a PERM denial for failure to submit a signed recruitment report in response to an audit by DOL. In Matter of NYC Department of Education, the employer filed three PERM applications. DOL subsequently sent the employer an Audit Notification Letter requesting, among other items, the employer’s signed recruitment report. After receiving the employer’s response, DOL denied the case, in part because the recruitment report was not signed. The employer appealed the denial to BALCA.
On appeal, the employer argued that a signed recruitment report existed at the time of the audit response, but that it was omitted from the response due to an administrative error. The employer also argued that, because the regulations do not require a handwritten signature, the version of the recruitment report submitted was compliant because it included the employer’s typed name. The employer contended that the typed name constituted a valid typed signature or electronic signature.
Acknowledging that the regulation does not explicitly require recruitment reports to have “original” signatures, BALCA nonetheless upheld the denial. BALCA reasoned that there was no indication that the typed name was intended to be a signature. The typed name was not preceded by the customary “/s/” for electronic signatures, suggesting that the employer did not execute or adopt the typed word with the intent to authenticate the document. Because such intent is generally required in order for a typed name to constitute a legal electronic signature, BALCA found that the typed name did not constitute a valid signature for purposes of the regulations governing PERM. BALCA also noted that, even though a signed recruitment report existed at the time of the audit, it could not be considered on appeal because the employer failed to submit it in response to the audit.
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.