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.”

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