A three judge panel of the federal Board of Immigration Appeals (BALCA) has granted an appeal filed by Austin &Ferguson, LLC, overturning the Department of Labor’s (DOL) repeated denials of PERM applications involving job positions with multiple jobs available.
This expansion of PERM requirements, here involving Filipino school teachers, will make it easier for some school districts to comply with the PERM regulations and request permanent residence for its teachers.
The problem faced by many school districts, and also by some other quasi-governmental employers, is that the administrative hiring process often take longer then it does for most private companies. This delay in making final hiring decisions can cause the PERM application to be filed before a final employment decision has been made for each and every job applicant. The result of the premature but necessary PERM filing was usually a denial of the application by the Department of Labor.
When a job position has been advertised for multiple openings, this new BALCA decision now requires DOL to approve some PERM applications even if hiring decisions have not been made for all of the applicants. However, the employer must now show that even if they hired these ‘undecided’ applicants, there would still be a job position available for the foreign-born workers.
While often it is strategically decided to bypass a PERM denial by just filing a new PERM application, we allowed this appeal to continue in an attempt to highlight the unfairness of this DOL requirement. As a result, this decision will be of help to the many school districts around the country whose lengthy administrative hiring requirements have hampered their attempts to obtain permanent residence for their Filipino teachers.
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