BALCA Affirms Denial Where Employer Failed to Provide Evidence of Contact with U.S. Applicants

The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether an employer failed to comply with a request by the Department of Labor (“DOL”) when it only provided evidence of emails sent to eight of seventeen applicants for a position that was sponsored through PERM. In Matter of Accent-Media Productions, Inc., the employer submitted a labor certification for the position of “Computer Programmer.” The case was selected for audit and the employer provided a chart that identified seventeen applicants for the position and eight email responses from the applicants to the sponsoring employer. The Certifying Officer (“CO”) denied the application on the basis that the employer failed to provide documentation that was requested in the audit request. BALCA determined that the CO notified the employer that it must submit evidence of its attempts to contact U.S. applicants through the audit notification. This request was deemed to be reasonable because evidence of correspondence with U.S. applicants should have been readily available to the sponsoring employer and is “important for the CO to consider in determining whether U.S. applicants were properly rejected for a job opportunity.” Since BALCA determined that this request was reasonable and found that the employer’s “failure to comply with [the] request is material enough to constitute a substantial failure,” the denial was upheld. In reviewing an audit request, it is critical that employers ensure that they are providing all of the information that is requested by the DOL.

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