An Employer Wins! BALCA Finds Crucial Inconsistency

21 December 2015 Labor & Employment Law Perspectives Blog

A recent decision by the Board of Alien Labor Certification Appeals (BALCA) illustrates just how draconian decision-making with regard to labor certification filings can be at the U.S. Department of Labor (DOL), and provides insight into the importance of filing labor certification appeals.

In the recent decision, BALCA overturned the certifying officer’s denial of the company’s labor certification denial and determined that it is unfair to punish an employer because of a timing conflict that arose as a result of the use of the inconsistent terms “6 months” and “180 days.” The conflict exists in the regulation  that requires employers conducting recruitment for nonprofessional positions to place a job order with the State Workforce Agency (SWA) and two newspaper advertisements within six months of filing the application, and further requiring that the recruitment be conducted at least 30 days, but no more than 180 days, before the filing of the application.

The case involved the company’s sponsorship of a foreign national for a nonprofessional position. The company mailed its labor certification application to DOL on September 11, 2009. The company’s SWA job order was posted from March 17, 2009, to April 15, 2009. DOL received the employer’s application on September 14, 2009, and assigned that date as the official filing date.

DOL initially denied the application because the SWA job order was posted more than 180 days from the date of filing. The company filed a motion for review and reconsideration, arguing that the recruitment had been taking place within the required time period with evidence that it paid for overnight delivery of the application on September 11, 2009. Upon further review, DOL upheld the denial since the official September 14, 2009, filing date was 181 days after the SWA job order March 17, 2009, posting date.

BALCA found the two provisions of the above-referenced timing regulation to be “potentially contradictory.” Although the employer complied with the regulatory provision requiring that the application be filed within six months of the March 17, 2009, SWA job order (i.e. prior to September 17, 2009), using the 180 day provision would mean that the company exceeded that contradictory regulatory time limit because there were 181 days between March 17, 2009, and September 14, 2009. BALCA concluded that since the regulatory construction allows for two possible outcomes, the employer should not be penalized for this inconsistency under “a fair reading of the text of the rule and one consistent with its purpose of balancing the need for timely applications with timely notice to prospective applicants.”

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services


Ten Minute Interview: M&A Challenges & Opportunities
23 November 2022
Sujata “Sue” Sachdeva and Koss Corp.
23 November 2022
Cannabis Company Cops to SEC Accounting Fraud Charges
22 November 2022
Legal News: Cannabis Industry
Foley Automotive Report
22 November 2022
Dashboard Insights
CLE Weeks
5-16 December 2022
Milwaukee, WI
Foley Sponsors Ernst & Young Entrepreneur of the Year® Program
1 December 2021 - 30 November 2022
Michigan and Northwest Ohio Region
2022 Distressed Investing Conference
28 November 2022
New York, NY
Meet and Greet and Panel Discussion with E. Martin Estrada and Cuauhtemoc Ortega
28 November 2022
Los Angeles, CA