BALCA says play fair !

By |2011-04-19T23:18:04+00:00April 19th, 2011|Categories: Green Cards|Tags: , , , , , |

In two BALCA decisions released this week, the Board overturned denials of PERM cases and ordered the Certifying Officer to re-consider,  basing  both decisions on the  doctrine of fundamental fairness.  One of the cases involved the area of intended employment. In that case, the job offer listed the geographic location in the ETA 9089 as Spartanburg, SC however, the Job Order and advertisment dircted applicants to Inman, SC. Originally, the CO denied the case claiming that the job location was not properly described in the recruitment activities. The fact that Inman is a suburb of Spartanburg and located a mere 7 miles distant did not persuade the CO. However, reason and common sense prevailed at BALCA.  And, not to throw cold water on the party but, the appeals process only took a mere 18 months and the PERM has only been pending  since 2007.  The second case has facts that are hard to believe and made me just shake my head at my tax dollars at work.  The CO denied the case  because  they were unable to verify that the employer was truly sponsoring the foreign national. As proof of their attempts to communicate with the employer, they indicated that they had made phone calls on 4 occasions. Sounds sufficient to me until they disclosed that all 4 calls were over a 2 1/2 week period that included 2 days before Christmas and a call on New Year's Eve.  No voice mails were left and no emails sent. Turns out the employer contact was on vacation during the holidays and that explained the failure to answer the phone.  What is so sad is that the employer explained all of this a mere 3 weeks after the denial and still the CO refused to re-open the case thus requiring the employer to file the appeal and now, 15 months later, the right decision has been made [...]