Over the course of the last year, AILA has been posting a series of BALCA decisions. These BALCA decisions routinely deny the labor certification appeal, even for minor, de minimis errors of the employer and/or counsel. An example of today’s postings include the following:
BALCA Affirms Denial Because the Job Order Was Conducted Outside the 180 Day
Requirement http://www.aila.org/content/default.aspx?docid=30342 BALCA affirms the PERM denial based on the fact that the application was filed 187 days after the job order was placed, and consequently, the job order was conducted outside the 180 day requirement. Matter of Spires Restaurant, 2009-PER-00125 (8/25/09). AILA Doc. No. 09102063.
BALCA Affirms Denial Based on Employer’s Failure to State Experience Requirement on PWD Request http://www.aila.org/content/default.aspx?docid=30343 BALCA affirms the PERM denial based on the employer’s failure to state the experience requirement on the Prevailing Wage Determination request to the State Workforce Agency. Matter of Florida Restaurant Group, LLC, 2009-PER-00014 (8/25/09). AILA Doc. No. 09102064.
I could list dozens of other denials from BALCA on similar ticky-tack issues, but I think you get the point–BALCA does not care that you or the employer misread one line in a hundreds of pages of FAQs, regulations, or liaison minutes. You or your client missed it and that is not DOL’s problem. No Soup For You. Refile. Get to the Back of the Line. We do not care how it affects your business. The real tragedy here is that BALCA gives you this decision 4-5 YEARS after you filed the original labor certification, adding insult to injury.
Some would say this is a reason to have a simplified immigration system as it relates to the permanent employment of foreign nationals in the United States. I cannot disagree. The promise of PERM–quick approvals and denials based upon “real world” recruitment, is an illusion, nothing more. PERM is a blight on our immigration system. It does not protect American workers in any serious way, it asks employers to jump through more hoops than a show dog, and puts lawyers in the unenviable positions of advising employers on how to navigate a set of non-real world regulations, FAQs, and liaison minutes (when we can actually get answers), using a poorly developed computer filing program so complex that Einstein would have to invent a new Theory of PERM Relativity to explain it to a layman!
Who would have thought that we would pyne for days of “regular” labor certifications! What a farce this system has become in the name of progress.
9) The DOL violates the current administration's emphasis on "transparency" by failing to respond to inquiries or phone messages.
10) The DOL violates the second amendment's "right to petition the government for a redress of grievances" by taking bureaucratic "revenge" against those who seek to challenge their system. ( question asked at AILA conference at Las Vegas – "Is my partner right that all of his cases are now being audited after his challenge to denied cases?" DOL answer: " We reserve the right to scrutinize anyone we feel is not acting in good faith.")
11) The DOL represents the arrogance of power by willfully and knowingly refusing to adjudicate PERM in general, and particularly, where delay harms employers, employees and families who are near the 6th year limitation of their H-1B program.
5) The DOL has acted ultra vires by rule making which violates the Administrative Procedures Act and via rule-making intended to obfuscate rather than clarify such that those using the system are disadvantaged or denied.
6) The DOL has "dumbed down" occupations increasingly requiring more rather than less education or experience.
7) The DOL, which claims to be protecting American workers, hurts American workers by disadvantaging employers seeking Labor Certs for key workers whose positions are foundations for the jobs of other "American" workers.
8) The DOL has disadvantaged America by "dumbing down" minimum requirements rather than deferring to employers own determination of business necessity. The DOL has disadvantaged America by failing to recognize the inherent business advantages to foreign language use in marketing, sales, overseas production, international business, and a host of other business applications.
4) The DOL has shown an active and dangerous hostility to lawyers and due process – by forbidding foreign nationals from hiring attorneys, by publicly questioning attorney's good faith when attorneys succeed by actually following the DOL-created rules and by creating a sub rosa quota on immigration via publicly announced slow downs and announced suspicions that "too many labor certs are getting approved" ( AILA conferences: New York Chapter December conference and Las Vegas 2009)
1) Labor Certification is predicated on the fallacious theory that a person seeking to become an American "takes" a job from an American, when the reality is that the job creates an economic "multiplier effect" and predictability in performance – and profits, are the only reason employers sponsor foreign nationals.
2) The employer, and not DOL are in the best position to decide who is best qualified ( not least qualified, as DOL would seek).
3) The DOL is acting ultra vires through "legislation through inaction" and acting as a legislature rather than an implementing agency.
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Perhaps AILA should formally propose an amendment to the Labor certification regulations to reinstate the "harmless error" rule.