Recently, Board of Alien Labor Certification Appeals (BALCA) rendered an opinion on cases regarding the use of expired Prevailing Wage Determinations (PWDs) in PERM labor certification cases. The appeals body within the U.S. Department of Labor (DOL) is the Board of Alien Labor Certification Appeals (BALCA). The useful information that follows is provided to help both employers and employees as such cases demonstrate the complexity and, sometimes, conflicting outcomes when PERM regulations are applied to specific situations.

BALCA issued an opinion in the Matter of Horizon Computer Services, Inc. on May 25, 2011 vacating a denial of a PERM labor certification (PERM/LC). As mentioned above, as an appeals body, BALCA rules on appeals of denied PERM/LCs.

This case had been denied because the required recruitment of U.S. workers had commenced prior to the validity of the PWD and the case had been filed after the PWD expired. As explained below, BALCA agreed with the procedures used by the employer, and allowed the case to go forward even though recruitment was started before the PWD was obtained, and the case filed after the PWD expired.

The regulations governing PERM/LCs require employers to either file the PERM case during the validity period of the PWD or initiate recruitment during the validity of the PWD. In the Matter of Horizon Computer Services, Inc., the employer commenced its earliest recruitment efforts before the PWD validity period began, and filed the PERM/LC after the PWD had expired. The argument surrounded whether the recruitment efforts must begin (i.e. the first step) while the PWD is valid, or whether it is enough that any recruitment (even if not the first step) occurs when the PWD is valid.

BALCA held that, to use an expired PWD to file a PERM case, the employer must have initiated at least one recruitment step during the PWD's validity period. It allowed this case to go forward because part of the recruitment had occurred while the PWD was valid. BALCA did not require that recruitment wait entirely until the PWD validity period. Since the employer had met the requirement with respect to the recruitment timing, it was determined to be acceptable to file the case after the PWD expiration. See http://www.greencardapply.com/news/news11/news11_0905.htm