We filed a PERM application under EB-2 for a Senior Programmer Analyst’s position early this year. Three months later, U.S. Department of Labor (DOL) issued an Audit Notification. Immediately following our response, DOL denied the application, citing that our audit response did not include a copy of the job order. Our response, in the form of an MTR (Motion to Reconsider)/Appeal, included a clear exposition of the law and a BALCA decision in which the Administrative Law Judge held that the job order is not a mandatory document required to be submitted, and therefore, the denial was erroneous. Given that the denial reason was clearly an error on DOL’s part, we requested the case be placed into the government error queue so that the case would quickly be reopened and approved. Within one week, DOL certified the labor application.
BALCA Sample Cases
These are some sample cases from our files. It is impossible for us to present all have done past over 15 years of our practice. But these were some cases that came to mind when we started writing this column 2-3 years ago.
In a case decided yesterday, we had filed an appeal to BALCA against a PERM denial by the Certifying Officer (“CO”). The ground for denial was that the Job Order did not provide the exact salary offered to the foreign worker. We showed in our appeal that the fault lay with the Job Order form of the State Workforce Agency. The form did not permit us to enter the higher end of the wage range for our job, where we had offered a wage range instead of an exact figure. The CO appears to have agreed with us and has withdrawn denial and certified our case.