July 23, 2012

On July 16, 2012, the Board of Alien Labor Certification of Appeals ("BALCA") vacated the Department of Labor's ("DOL") Certifying Officer's ("CO") denial of certification, finding that the CO cannot dismiss an employer’s stated job requirements in the absence of a determination that the job requirements are unduly restrictive. In re Concurrent Computer Corp., 88-INA-76 (August 19, 1988) (en banc). Prior to the initial denial, the PERM case was audited by the DOL and subsequently processed through supervised recruitment. The CO denied the application, stating that the employer rejected U.S. workers without lawful job-related reasons. BALCA found that U.S. workers in question did not have the required skills for the position as listed on ETA Form 9089. Furthermore, BALCA found that the employers had established that the requirements were a business necessity and were not unduly restrictive. Therefore, BALCA found that the employer had properly dismissed the U.S. candidates who lacked the requisite skills without an interview.