UPDATE: BALCA clarifies 180-day rule, declines to follow GE Energy

News Release from Jewell & Associates, PC – September 19, 2012 Employers and business immigration law practitioners are familiar with the challenge presented by labor market test timelines in the labor certification (LC) process. In a previous blog post we noted the confusion caused in that regard by the 2011 decision of the Board of Alien Labor Certification Appeals (BALCA) in General Electric Company 2010-PER-763. In that case the panel turned the common-sense understanding of the labor market test’s 180-day rule – that all recruitment must be started and completed within the 180 days prior to an LC being filed – on its head by holding that an LC application must be filed “at least 30 days, but no more than 180 days, after the end date of its [State Workforce Agency] job order, not the start date.”

Now a BALCA panel has confirmed our misgivings with General Electric by expressly refusing to follow its reasoning. In Industrial Steel Products 2012-PER-542 the Certifying Officer had denied the LC because the job order was placed more than 180 days prior to the LC filing date, in violation of the regulatory rule that the recruitment steps must be conducted at least 30 days, but no more than 180 days, before the filing of the application. (See 20 C.F.R. § 656.17(e)(2) for nonprofessional positions, as in Industrial Steel; and 656.17(e)(1)(i) for professional positions, as in General Electric.) The employer argued, relying on General Electric, that this 180-day window began on the end date of the SWA job order and so its LC was filed on time.

BALCA affirmed the denial. It noted, as we did, that as recently as Blue Mountain Stone Inc. 2010-PER-481 a panel had explained that the word “conducted” in the regulation, when it relates to 180 days, means that recruitment must begin no more than 180 days prior to the filing, because it becomes stale if too much time passes between it and the filing of the application. The Board also noted that the en banc decision in Karl Storz Endoscopy 2011-PER-40, though focused on the validity dates of a prevailing wage determination, was consistent with Blue Mountain Stone insofar as the Board ruled that “[f]or the purposes of Section 656.17(e) . . . the ‘recruitment period’ refers to the six- month period prior to filing, during which all of an employer’s recruitment must be conducted.”

Industrial Steel therefore puts a confusing episode of BALCA case law to rest, and employers and practitioners can cheer the restoration of a common-sense approach to calculating the labor market test timeline.

By Christopher Beckerson. © Jewell & Associates, PC 2012