BALCA UPDATE ON LABOR APPLICATION APPEALS

In a recent teleconference between American Immigration Lawyers Association (AILA) and two judges of Board of Alien Labor Certification Appeals (BALCA), BALCA provides some updates on various matters including the numbers of PERM appeal cases, staffing levels, novel legal issues, etc. The following is a summary of the meeting:

For fiscal year 2008, BALCA docketed 253 PERM appeals plus 164 pre - PERM cases; Fiscal year 2009 docketed 488 appeals; Fiscal year 2010 docketed 1,656 appeals. BALCA noted that the volume has more than tripled over the past three years. As of October 18, 2010, there are 1,215 PERM appeals pending with BALCA.

Procedurally, after a case is docketed, a notice will be sent to the employer requesting for
submission of a statement of intent to proceed within 15 days. Employer will have 45 days to submit an appellate brief if the case is to move forward. But a brief is not required. Employer can rest on the case record.

The average processing time of PERM appeal in fiscal year 2010 is 120 days. However, this number does not reflect the actual processing time of each case because many cases were dropped as a result of the employer’s failure to submit a written confirmation of an intent to continue with the appeal. As discussed above, the current procedure requires an employer to file a written confirmation before the appeal will be decided. However, many employers fail to file such a notice, possibly because of the changes in their hiring needs and business plans as times goes by. Some other employers actually withdraw their appeals after the case is docketed. Finally, there are a handful of cases that BALCA actually “remand” or send back to the DOL Certifying Officer for review. For cases that require a full decision cases, BALCA is taking approximately 6 months to decide.

Generally, appeals are processed in first-in-first-out order based on the docket date (not the original labor application filing date). However, BALCA also groups cases that pertain to a common issue or trend. For example, recently it is 30 cases from 2009 that relate to the medical residency issue. Such cases may be decided faster than normal.
Employers may also identify issues and cases that require and an interpretation of the PERM regulation, or require consolidation.

Cases that involve “harmless error” standard include deficiencies in notice of filing posting, adequacies of recruitment documentation, etc. As far as hot legal issue is concerned, BALCA is considering whether a medical residency position constitutes permanent employment. Another novel issue involves the standard that must be used in (college teachers) special handling cases: recruiting of most qualified candidates versus minimally qualified standard. A related issue is whether employer preferences are allowed in selecting candidates for college faculty.


BALCA also reminded employers not to file the Request for Review directly with
BALCA. Normally after a labor application is denied, an employer may either file a request for reconsideration by the Certifying Officer who denied the case, or file a Request for Review (appeal) with BALCA. However, all Requests for Review must be filed with the DOL Certifying Officer. Even if an employer files a Request for Review directly with BALCA, the request will be sent to the Certifying Officer and will not be docketed. If an employer filed a request for review with both BALCA and the Certifying Officer simultaneously, BALCA will not act on the request until the Certifying Officer forwards the file to BALCA.