The Board of Alien Labor Certification Appeals (BALCA) recently ruled on a case related to the confirmation of an employer's sponsorship of a foreign worker. We think it is an interesting decision, one that our friends here in central Ohio should pay attention to as they work on these kinds of application.
Four years ago a company filed for Permanent Employment Certification (PERM) for a landscaping/grounds keeping-related position. The Certifying Officer (CO) in the case denied the application on the grounds that they could not verify the employer's sponsorship of the candidate.
When applying, the Employer included a signed "declaration under of penalty of perjury" from the company president attesting to the conditions of employment. In the denial, the CO stated it tried unsuccessfully to reach the president by phone on five separate occasions over a one-month period.
On appeal the Employer added a letter from the company president reaffirming the verification of the sponsorship and including an additional contact number (his personal assistant). The president also denied ever receiving phone calls on the five dates specified by the CO.
Almost two years later the CO again denied application, citing the five phone calls and saying that the Employer did not return messages. For the CO, this "does not satisfy the specific conditions of sponsorship verification." BALCA got the case in August of last year.
BALCA decided that the "sole issue before us" was whether denying certification based on an inability to verify sponsorship was proper. It stated that a CO "may conduct checks to ensure that the employer is aware that the application was filed on its behalf."
But the judge found that such telephone verification is not a regulatory requirement and should not be used as basis for denial. Since the CO received a signed statement from the company president, that was enough to comply with federal regulations.
In this case BALCA found the CO did not act in accordance with specific guidelines in instances where fraud is suspected. The CO could also have asked for "supplementary information" during the audit process, something they did not do. BALCA noted that during the two years between the Employer's appeal and the second denial the CO made no more attempts to contact the president using the contact information provided.
The judge overturned the denial and turned it back over to the CO for further processing.
In this case the CO was relying on an incredibly unreliable way to confirm sponsorship - the telephone. It is progressive, but clearly improper.
While we appreciate that the government was trying to conserve resources, sometimes there is such a thing as attempting to be too efficient.
