April 4, 2012
Previously published on March 28, 2012
Under the PERM regulations, employers filing for permanent labor certification must maintain specified supporting recruitment documentation after filing the application and present it to the U.S. Department of Labor (DOL) upon request. In Matter of A Cut Above Ceramic Tile, the employer was unable to obtain a copy of the State Workforce Agency (SWA) job order from the state since the SWA’s database had been purged in the three-year span of time between publication and the DOL audit request. In a March 8, 2012 decision, the Board of Alien Labor Certification Appeals (BALCA) held that, while an employer is expected to maintain the documentation specified in the regulations, proof of the request and publication of the SWA job order is not “required supporting documentation.” The employer is, therefore, not required to maintain such documentation. BALCA concluded that the employer’s failure to produce a copy of the SWA job order could not be the sole basis for a PERM denial. The BALCA panel explained, however, that there might be other legitimate reasons for requesting such documentation. Notably, the Office of Foreign Labor Certification Certifying Officer can still deny certification based on a deficiency in the content of the SWA job order. The panel noted that it anticipates that most employers recruiting in good faith will have retained documentation in some form to show the content of the job order and will have the ability to produce it. Contemporaneously with the PERM recruitment process, employers should collect documents that evidence the content and dates of action on all elements of pre-filing recruitment steps and refrain from waiting until receipt of an audit notification to begin compiling documentation. BALCA is unlikely to excuse the production of required evidence merely because it later becomes difficult to obtain.
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