Recent BALCA Decisions Including Advertised Salary in PERM Case

The Board of Alien Labor Certification Appeals has decided several recent cases that are instructive to employers who are in the process of or contemplating filing PERM applications on behalf of foreign employees:

In Matter of D & M Leasing Inc., 2009-PER-00345 (BALCA Sept. 1, 2009), certification was denied after the employer failed to provide legible copies of the newspaper advertisements as documentation of their proper placement. The copies submitted were faxed and illegible, according to the Certifying Officer. This case underlines the importance of proper documentation of recruitment efforts.

The Board of Alien Labor Certification Appeals (“BALCA”) also reports several other applications that were denied because the advertisements did not include the employer’s name. Denial was upheld despite the employers’ arguments that the omission was “harmless,” that a company official was named in the ad, or that the company’s owner was named in the advertisement and the owner was “synonymous” with the small company.

A similar case was denied because the Notice of Filing, also called the Internal Posting Notice, did not contain the employer’s name. The employer tried to argue that the Notice of Filing is only posted internally and, thus, there could be no doubt as to the identity of the employer. BALCA disagreed and upheld denial of certification. These cases and others emphasize the fact that the regulatory requirements for recruitment procedures are strict and must be followed to the letter in order to avoid a needless denial of certification.

BALCA also affirmed denial of certification in a case where the employer failed to advertise the position at the same salary that was offered to the alien, but instead advertised at the prevailing wage, which was substantially lower. BALCA held that the position could not be advertised at a wage rate less favorable than that being offered to the alien.

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