Under the PERM regulations, employers filing for permanent labor certification must provide notice of the filing of a labor certification to its employees. This is accomplished either by notifying the appropriate bargaining representative or, if there is no bargaining representative, by posting a notice, clearly visible and unobstructed, for at least 10 consecutive business days at the facility or location of the employment, in the place where the employer normally places wage and hour information.
This Notice of Filing (NOF) must contain the same information that is required for advertisements in newspapers of general circulation or in professional journals, including a requirement that the advertisements state the name of the employer. In Matter of Aero Parts Management, LLC, the NOF did not include the employer’s name. In a May 25, 2012 decision, the Board of Alien Labor Certification Appeals (BALCA) held that, on that basis, the NOF, on its face, did not comply with the regulations. An employer cannot overcome a failure to comply with the regulatory content requirements on an NOF by presenting documentation showing why it would not have mattered under the circumstances of its particular posting. BALCA noted that attempts to explain NOF deficiencies based on the context of the posting “are almost certainly destined to fail.” This is due to the evidentiary restraints imposed by the 2007 amendments to the regulations, in terms of which an employer is not permitted to supplement the record with newly-created documentation once receiving a notice of a denial.
The regulations state further that the documentation required to evidence compliance with the posting requirement “may be satisfied by providing a copy of the posted notice and stating where it was posted.” In Matter of MT Heating, Inc., there was no deficiency in the content of the NOF itself, but the employer did not provide supplemental documentation that the NOF was actually posted in the proper place. In a May 30, 2012 decision, BALCA held that the employer must state in its response to an audit notification that the NOF was posted at the proper location given that it is not administratively feasible for the Certifying Officer to investigate the circumstances of each applicant’s business.
Typically, the justification offered by the Certifying Officers and/or BALCA for issuing harsh denials based on a failure to strictly comply with the regulations is that PERM was expressly designed with a rigid regulatory scheme in order to streamline and simplify the process for applying for labor certification and eliminate the back-and-forth that slowed the program under the old regulation, thereby promoting administrative efficiency. However, given the increased PERM processing times that have eliminated the benefit of efficiency in the adjudication process, the excuse for rigidly rejecting any mistakes on the part of the employer fails.
In Matter of MT Heating, Inc., BALCA also rejected the assertion that deficiencies in the NOF and its supporting documentation constitute a “harmless error” exception to the strict PERM regulatory scheme. The harmless error standard recognizes that applications that are not perfect in every way may still be approved in the interest of elevating substance over form and notions of “fundamental fairness.” In determining whether an error is harmless, the Department of Labor must consider whether the process adequately tested the market for availability of U.S. workers and, where there are technical questions, whether or not the error created some problem that undermines the integrity of the process. In this case, however, BALCA emphasized that the NOF is “not a mere technicality, but is an implementation of a statutory notice requirement designed to assist interested persons in providing relevant information to the [Certifying Officer] about an employer’s certification application.”
In conclusion, employers are unlikely to overcome a failure to comply with a content requirement on an NOF. It is, likewise, improbable that BALCA will excuse the production of additional evidence indicating where the notice was posted. In light of these recent decisions and the fact that an employer bears the burden of proof to establish eligibility for labor certification, employers should ensure that:
- The NOF includes the employer’s name; and
- Either the NOF itself states that it was posted at the proper location or supplemental documentation is submitted with the posted notice stating where it was posted.
