BALCA Holds that NOF Filed in Response to Audit Must Include Employer's Name

labor certification application

The Board of Labor Certification Appeals (BALCA) issued a decision in the Matter of A&J Partnership, 2012-PER-00674 (Nov. 16, 2015) [decision PDF] where it affirmed the denial of a labor certification application because the notice of filing (NOF) that the employer submitted in response to an audit did not include the employer's name. This article will discuss the facts of the case, the reasoning behind the decision in the Matter of A&J Partnership, and what the decision means.

Facts of the Case

The employer in the case filed an ETA Form 9089 sponsoring an alien for permanent employment in the United States. The Certifying Officer issued an audit notification letter in which he requested “notice of filing documentation as outlined in [20 C.F.R.] 656.10(d).”

After reviewing the response to the audit, the CO denied labor certification because the NOF that the employer submitted did not contain the employer's name (as required by 20 C.F.R. 656.10(d)(4)). The employer explained that the NOF it submitted was a computer generated printout and that the NOF it used had contained the employer's name. The employer made a request for reconsideration and included the original NOF. However, the CO declined to consider the additional NOF (under 20 C.F.R. 656.24(g)(2)(i)-(ii)) and affirmed the denial of labor certification.

The employer appealed the denial of labor certification based upon two arguments:

1. The employer asked that BALCA treat the computer generated printout submitted with its audit response as “harmless error.”1
2. The computer generated printout contained the employer's address and the employer was the only business at that address. That information was sufficient for meeting the requirement found in 20 C.F.R. 656.10(d)(4).

The BALCA rejected both of the employer's arguments and upheld the CO's decision.

The Employer's First Argument

With regard to the employer's first argument, the decision explains that for labor certification application submitted after July 16, 2007, a request for reconsideration may only include (under 20 C.F.R. 656.24(g)(2)(i)-(ii)):

1. documentation that the CO received from the employer in response to a request from the CO; or
2. documentation that the employer did not have an opportunity to present to the CO, but existed at the time the application was filed.2

Because the employer had the opportunity to present the original NOF in response to the audit, the BALCA held that the CO did not err in refusing to consider it in the employer's request for reconsideration. Furthermore, the BALCA explained that it could not consider the additional NOF because it was restricted to reviewing the evidence that was part of the record upon which the CO made his decision.3 Therefore, the BALCA held that the employer's failure to comply with the regulations was not “harmless error.”

The Employer's Second Argument

The BALCA addressed the employer's argument that the address information on the computer generated printout was sufficient for the requirement that the NOF include the employer's name under 20 C.F.R. 656.10(d)(4) and 656.17(f)(1). It relied on its precedent from Matter of Tera Technologies, Inc., 2011-PER-2541 and 2012-PER-55 (Aug. 28, 2014) (en banc) [decision PDF] which affirmed the strict enforcement of the relevant regulations. The BALCA rejected the employer's fact-specific argument that the address was an appropriate substitute for its name because “it is not administratively feasible for the CO to investigate the circumstances of each applicant's business.”4

Conclusion

The decision in Matter of A&J Partnership illustrates how a filing mistake can prove fatal to a labor certification application.5 The facts of the case and BALCA's decision highlight the importance of filing the correct documents at every stage of the PERM labor certification process. An employer should consult with an experienced immigration attorney in order to avoid filing mistakes and oversights that can scuttle an otherwise approvable labor certification application.

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  1. The employer appealed to the BALCA decisions in the Matter of Washington Hospital Center, 2010-PER-720 (May 13, 2011) and Matter of Forest View Nursing Home and Rehab Center, 2010-PER-106 (Feb. 11, 2011)
  2. 20 C.F.R. § 656.24(g)(2)(i)-(ii)
  3. 20 C.F.R. §§ 656.26(a)(4)(i) and 656.27(c)
  4. The decision quoted from the Matter of Alexandria Granite & Marble, 2009-PER-383 (May 26, 2010), pet. en banc review denied (July 15, 2010)
  5. It is impossible to know whether the labor certification application would have been ultimately approved if the employer had filed the original NOF. However, we can say for sure that the application was denied on the basis of the NOF that the employer filed.