BALCA: UTB Falls Down the Rabbit Hole

The Immigration and Nationality Act allows employers to petition for employees to receive permanent residence based on an offer of employment.  Most employment based immigrants must seek a “labor certification” or determination from the U.S. Department of Labor’s Employment and Training Division (DOLETA) that there are no U.S. citizens or permanent resident aliens that are ready, willing, and able to do the job the employer wants to offer the potential immigrant. 

In 2004, DOLETA published regulations on permanent labor certifications.  These regulations are intended to interpret the Immigration and Nationality Act and instruct employers and their potential employees on the process of obtaining a permanent labor certification.  The general public was invited to comment on the regulations. Click here to view the regulations in a pdf format.

In 2007, the DOLETA implemented the regulations and rolled out the PERM process of obtaining a labor certification.  Upon implementation, the DOL released a series of Frequently Asked Questions or FAQs.  Click here to read the FAQs.  These FAQs are detailed instructions on how to go about applying for a labor certification.  In reality, these FAQs amount to the DOLETA’s interpretation of DOLETA’s regulations that interpret the Immigration and Nationality Act.  Confused yet?

On July 20, 2011 the Board of Alien Labor Certification Appeals (BALCA) issued its decision in the Matter of the University of Texas at Brownsville.  UTB filed an application for labor certification for one of its professors.  As a part of the test of the labor market and to fulfill its requirements under the PERM regulations, UTB ran an ad for the professor’s position in the Chronicle of Higher Education.  Like many professional journals and some newspapers, the Chronicle of Higher Education is an online only journal.

DOLETA’s Certifying Officer denied UTB’s application.  In the denial, the CO stated cited the FAQ section that states that if an employer is going to advertise a job in a professional journal, the employer must use a print journal.  UTB appealed to BALCA.  Upon review BALCA held that the PERM regulations are silent on the use of paper versus online only journals, and that DOLETA cannot create a substantive rule through publication of a FAQ.  BALCA found that DOLETA's FAQs are helpful interpretations of the regulations, but do not in and of themselves have the force of law because they have not complied with the Administrative Procedure Act’s notice and comment requirements.  BALCA determined that the CO abused his discretion by relying on the FAQ as a substantive rule to deny UTB's application.  BALCA reversed and sent the case back to CO for additional consideration.

Labor certification is complicated.  Employers and potential immigrants need skillful advocates to deal with governmental agencies that write their own rules and then write rules to interpret their rules.  Sometimes the only way out of the rabbit hole that is labor certification is to question the authority of the rules upon which the agency used to make its adverse decision.


Copyright 2011 Richard M. Green, All Rights Reserved