BALCA: Elevating Form over Substance

On April 21, 2011, the Board of Alien Labor Certification Appeals of the U.S. Department of Labor (BALCA) released its decision in the Matter of Ifuturistics, Inc. 2010-PER-00631 (BALCA 2011).  In this case, BALCA celebrates form over substance by using procedural rules to ignore evidence and deny a Labor Certification.

On May 19, 2009, Ifuturistics (the Employer) filed a PERM Application for Permanent Labor Certification with the Certifying Officer of the Department of Labor’s Atlanta Processing Center.  The Employer sought certification on behalf of one of its employees to work as a Computer Systems Analyst. 

A Labor Certification is the first step in most employment based permanent residency cases.  In order to obtain a labor certification, an employer must test the labor market and demonstrate that there are no US citizens, Lawful Permanent Resident aliens, or other work authorized individuals that are ready, willing, and qualified to perform the job as described on the labor certification.

In order to test the labor market, and fulfill the requirements for PERM, the Employer advertised its Computer Systems Analyst position in the professional journal Computer.  The Certifying Officer denied the Employer’s application, stating that Computer is not a professional journal.  Shortly after receiving the denial, the Employer requested review of the denial.  Along with their request, the employer sent six pages of documentation regarding the publisher (the IEEE) and readership of the journal Computer.

Upon review, BALCA refused to consider the documents regarding the journal Computer, and affirmed the denial of certification.

Because the Employer requested a review before BALCA, rather than reconsideration from the [Certifying Officer], we are limited by 20 C.F.R. § 656.27(c) to an analysis based upon evidence upon which the [Certifying Officer’s] denial was made. Consequently, the six pages of information related to the significance of the IEEE, as a preeminent technical society, which likely would have carried Employer’s burden, is not properly before us. We are therefore constrained procedurally to affirm the denial, despite the fact that the [Certifying Officer] was arguably incorrect in his determination that Computer magazine is not a qualifying professional journal. Matter of Ifuturistics, Inc. 2010-PER-00631 at 3-4.

There are two lessons to be learned from this case:

1.     PERM is like a mine field.  It is a highly technical practice area.  This certification was denied because the attorney that represented the Employer asked for the wrong kind of appeal: Review by BALCA and not reconsideration from the Certifying Officer. It appears that counsel for the Employer thought that BALCA would ignore its own regulations and review the documentation regarding the publisher and readership of Computer.  Knowledge of the PERM regulations and the culture/mindset of the Department of Labor are necessary to getting a PERM application certified.

2.      BALCA thoughtlessly adheres to its rules.  It will use the smallest of procedural defect to kill an otherwise meritorious application.  Labor Certification Applications take time (two years in this case) and cost money (advertising and attorneys fees).  Additionally, continued employment and continued residency in the United States turn on a Labor Certification Appliation.  BALCA is content to ignore these considerations.  Additionally BALCA is willing to ignore evidence that the Certifying Officer wrongly denied certification because the evidence of the error was not properly before them.  With an air of royalty, BALCA elevates form over substance.

Copyright 2011 Richard M. Green, All Rights Reserved