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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, theNOF 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., BALCAalsorejected 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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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