BALCA Issues Key Decision on PERM Labor Certification Application

On July 17, 2017, the Board of Alien Labor Certification Appeals (“BALCA”) issued a key decision regarding PERM labor certification applications, or Form 9089. Section H.14 of Form 9089 requires a petitioning employer to list “specific skills or other requirements” of the job.  In Matter of Pixar, the PERM Certifying Officer had denied the employer’s PERM application because Section H.14 did not quantify the amount of experience that the position of “Technical Director” required.  BALCA found that a quantification of experience in H.14 cannot be imposed where one is not legally required.

In reaching its conclusion, BALCA analyzed its prior case of Matter of Smartzip Analytics.  In that case, the employer similarly did not indicate a duration requirement for the skills listed in Section H.14.  The Certifying Officer had instead gauged duration by reviewing the responses in Sections H.6 and H.10, which did require a duration to be listed, and where the employer had required 60 months of job experience.  The Certifying Officer then assumed that 60 months of experience in each special skill cited in H.14 was also required.  BALCA concluded that it was reasonable for the Certifying Officer to need to know the duration required of special skills when assessing the PERM application, but that the application could not be denied on its face “based on a failure to provide a duration requirement for special skills listed in Section H.14, short of legally sufficient notice of a requirement to do so.”  Instead, BALCA found that the Certifying Officer should have requested supplemental information.

In Matter of Pixar, BALCA adopted this same reasoning to reverse the Certifying Officer’s denial of Form 9089.

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