Feb. 10 2016

PERM:  Where Details Matter

Topics: Immigration

In 2010, Abundant Life Evangelical Community filed a PERM labor certification application with the US Department of Labor on behalf of an individual to work as an administrative assistant.  PERM is the process most employers use to seek permanent residency or a green card for an employee.  PERM involves testing the labor market or seeking qualified US citizen or other employment authorized workers.  If no qualified workers are found, the employer files the PERM application with the DOL requesting certification.

On September 24, 2010, the DOL requested the documentation Abundant Life used to support its assertion that they didn’t locate any qualified applicants.  One of the documents the church supplied was the job order placed with the New Jersey Department of Labor and Workforce Development seeking qualified candidates for the position.  The job order stated that the job required a high school diploma.  Abundant Life’s application did not list an educational requirement.  The DOL noticed this discrepancy and denied Abundant Life’s application stating that the job order contained a requirement that exceeded the actual requirements of the job as expressed on the application.

On reconsideration, Abundant Life supplied the DOL with a copy of the application for the job order which did not contain an educational requirement.  The church argued that the New Jersey Department of Labor and Workforce Development inserted the high school diploma requirement.  Unconvinced, the DOL stated that employers have the responsibility to ensure that their job orders accurately reflect the job requirements.  In 2012, Abundant Life appealed to the Board of Alien Labor Certification or BALCA.

On February 2, 2016, BALCA overturned DOL’s denial.  In its decision, BALCA stated that there is no requirement that the educational qualification listed on the job order match the application.  The regulations require that certain forms of advertisement match the application.  The job order isn’t one of them.   BALCA remanded the application and ordered the DOL to certify it.

While PERM is a prospective process, the vast majority of employers file PERM applications on behalf of employees presently working for the employer as a temporary nonimmigrant such as H-1B or L-1.  The truly frustrating part of this matter is the timeline.  The application was filed in 2010.  The DOL decision to deny was final in 2012.  It took BALCA four years to undo the DOL’s error.  That’s a long time for an employer to wait and a long time for an employee to sit in nonimmigrant limbo.  While BALCA undid the DOL’s denial, had employer’s counsel corrected the job order, the four year wait for justice at BALCA could have been avoided.

Employers needing assistance with a PERM application may contact the author of this post, Richard Green, at (949) 622-1661 or via email at rgreen@cdflaborlaw.com

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For over 20 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor

Robin Largent represents employers, including major food and retail companies, in all types of employment litigation: wrongful termination, retaliation, breach of contract, wage and hour (California Labor Code) and unfair competition. She also regularly counsels and advises California employers on issues of compliance with California and federal employment laws.
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