A new Board of Alien Labor Certification Appeals (BALCA) decision is a great example of the exacting nature of the PERM process.
PERM is the first step toward permanent residence, and is regulated by the Department of Labor, whose main job is to protect the U.S. workforce. “Understanding” is not a word readily applicable to DOL in this context.
In this case, which addressed several PERM applications by the same employer (Oracle America, Inc. 2011-PER-01391, -01461, -01435, -00983, -01177, and -01376), the job notice included the phrase “May be assigned to various unanticipated sites throughout the United States”. But the individual applications in question did not include a travel requirement.
The PERM applications were denied because DOL said the postings, which included a potential relocation requirement, did not accurately describe the actual job opening, which did not include a potential for relocation. Thus, U.S. applicants could have been dissuaded from applying for the job if they did not want to be relocated or travel.
DOL does allow one posting to address multiple job openings. It has also said that it is OK to state in this context, “Some positions may require travel.”
But DOL decided, and BALCA agreed, that the wording used in this posting could be interpreted to indicate that any of the open positions could require travel.
Although it may seem like arguing about angels dancing on the head of a pin, the decision illustrates how carefully DOL protects the U.S. job market. This is not a bad thing, but it does make the PERM process exacting.
It is no doubt frustrating for these employees, whose applications will now need to be re-filed after two years of fighting with the government, and for the employer, who probably was just trying to prevent administrative hassle by having one posting instead of two.
Still, the next time someone tells you that the current system does not protect U.S. workers, you can tell them about this case.