BALCA on Lawful Reasons for Rejecting U.S. Applicants in PERM Cases

The permanent labor certification process (also referred to as PERM) allows an employer to hire a foreign national to work permanently in the United States. Prior to filing a PERM application for a foreign worker with the U.S. Department of Labor (DOL), U.S. employers must conduct a cumbersome recruitment process to first attempt to hire a U.S. worker. Demonstrating that the recruitment process was correctly undertaken and failed to yield an able, willing and qualified U.S. worker is a required part of the PERM application. The regulations contain specific requirements for recruitment documentation that must be retained by the employer and submitted in response to a potential audit by DOL. One such document is a recruitment report providing lawful reasons for rejection of any U.S. applicants.

On May 26, 2015, the Board of Alien Labor Certification Appeals (BALCA), which is responsible for reviewing PERM denials, issued a decision in Matter of Presto Absorbent Products, Inc. 2012-PER-00775 (May 26, 2015) reversing a PERM denial for failure to provide sufficient reasons for rejecting eight U.S. applicants. In reversing the decision, BALCA noted that the relevant regulation “does not indicate a level of specificity beyond what the Employer provided.”