Under the basic labor certification process, the employer may file an application only after conducting efforts to recruit US workers by means of the following mandatory steps: (1) placing an advertisement on 2 different Sundays in a newspaper of general circulation in the area of intended employment; (2) placing a 30-day job order with the state workforce agency (SWA) serving the area of intended employment; and (3) posting a notice of filing of labor certification at the job site for 10 days. This notice of filing (NOF) or job posting at the job site must contain the name of the employer.
What would happen if the NOF did not indicate the name the employer? Would a labor certification application be denied for this reason? This was the issue in Aero Parts Management, LLC, 2011-PER-00704 (May 25, 2012). The employer argued before the Board of Alien Labor Certification Appeals (BALCA) that the omission of its name on the NOF would not have made a difference because public access to its premises was extremely limited and only its employees had access to see the NOF. Hence, there was no doubt as to the identity of the employer sponsoring the labor certification application.
The employer based its arguments on Stone Tech Fabrication, 2008-PER-187 (Jan. 5, 2008), wherein BALCA stated that there would be situations where the purpose of the NOF would be fully served without the name of the employer on the NOF if it was nonetheless clear that the NOF applied to the petitioning employer.
However, in Aero Parts Management, BALCA rejected the employer’s plea for equitable relief from the mandatory requirement on the contents of the NOF. BALCA observed that the new labor certification process under the Program Electronic Review Management (PERM), which took effect on March 28, 2005, was intended as a streamlined process. In Prosoft Associates, 2011-PER-01209 (August 3, 2012), BALCA explained that “PERM is an exacting process designed to eliminate the back-and-forth between applicants and the government, and to favor administrative efficiency over dialogue in order to better serve the public interest overall, given the resources available to administer the program”. Thus, allowing an employer to submit additional documents after its application is denied for failure to comply with the NOF requirements would be difficult to justify under the PERM process.
More important though is the fact that, effective July 16, 2007, amendments to the PERM regulations imposed restrictions on employers who wish to modify their applications after submission or to support a motion for reconsideration with supporting documents. Under these amendments, a request for reconsideration of a denied labor certification may only include: (1) documentation that DOL actually received from the employer in response to a request from the Certifying Officer; (2) documentation that the employer did not have an opportunity to present previously to the Certifying Officer but which existed at the time the application for labor certification was filed and was maintained by the employer to support the application for permanent labor certification; and (3) the Certifying Officer will not grant any request for reconsideration where the deficiency that caused denial resulted from the applicant’s disregard of a system prompt or other direct instruction.
Thus, in Aero Parts Management, LLC, BALCA rejected the suggestion in Stone Tech Fabrication that “an employer can overcome a failure to comply with a content requirement on a NOF by presenting documentation showing why it would not have mattered under the circumstances of its particular posting”. BALCA held that the NOF must comply with the regulatory content requirements and appeals attempting to justify failure to comply with those requirements based on the context of the posting would fail due to the evidentiary limitations imposed by the 2007 amendments to the PERM regulations.
The lesson in Aero Parts Management, LLC is that employers filing labor certification applications must exercise great care in conducting pre-filing recruitment efforts. The purpose of these recruitment efforts is to show DOL that there are no US workers, who are able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment. The PERM regulations require standard contents on the employer’s advertisements and NOF which are designed to inform potential applicants of the job opening and invite them to apply. These pre-filing requirements are not mere technicalities that employers may casually ignore and which DOL may easily excuse. There is no room for error. Any mistake could lead to a denial and would waste all efforts, expenses and time spent on the application.
