BALCA Rules on Recruitment and PWD Validity

By |2011-06-08T21:07:47+00:00June 8th, 2011|Categories: Green Cards|Tags: , , |

On May 25, 2011, The Bureau of Alien Labor Certification Appeals (BALCA), where most PERM cases go to die, finally issued a great decision that clarified a grey area!  See Horizon Computer Services, Inc.  (BALCA No. 2010-PER-00746).  DOL recently began denying cases in which recruitment began before the validity of the PWD.  DOL's reading of the regulations conflicted with the way many attorneys interpreted the regulations at 20 CFR Section 656.40(c) and a handful of cases went up on appeal for this issue.  DOL argued that ALL recruitment must occur within the validity of the PWD.  Many practitioners argued that only SOME of the recruitment must occur within the validity of the PWD.  BALCA sided with us and clarified that as long as SOME of the recruitment occurs during the validity of the prevailing wage determination, the recruitment is in compliance with 20 CFR section 656.40(c).  Not ALL of the recruitment needs to occur within the validity of the prevailing wage determination.  Some recruitment can occur before the validity. We look forward to  BALCA remanding other similar cases that are also on appeal, back to the DOL for approval!