Updates from BALCA regarding PERM Appeals

What is BALCA?

The Board of Alien Labor Certification Appeals (BALCA) is an administrative body which reviews mainly denials of PERM labor certification cases but it also handles a number of Department of Labor review cases.   With respect to PERM denials, BALCA is the appellate body which reviews appeals for PERM denials.

BALCA currently has five administrative judges but there are plans in 2011 to increase the number of administrative law judges who will help handle the increasing volume of PERM denial appeals.

BALCA Caseload and Processing Times

Caseload Statistics

BALCA has provided some useful statistics about their current and historic (over the past few years) caseload.

• During the fiscal year ending September 30, 2008, BALCA had docketed 254 PERM cases with an additional 164 pre-PERM cases.
• During Fiscal Year 2009, BALCA docketed 488 appeals.
• During Fiscal Year 2010, BALCA docketed 1,656 appeals, more than tripling the FY2008 volume.
• As of October 18, 2010, BALCA reports that there are 1,215 PERM appeals pending.

BALCA Procedures

Before posting the BALCA processing times, a brief overview of the procedural history of a PERM appeal is in order.   First, it should be noted that BALCA processing times are separate than the PERM processing times.  Once a PERM is denied by the DOL Certifying Officer, the employer has an opportunity to submit a Motion to Reconsider with the Certifying Officer.   If the employer decides to appeal, a timely Motion to Reconsider must be filed with the DOL Certifying Officer.  The Certifying Officer, then, has an opportunity to review the motion and change his or her mind on the PERM denial.  If the Certifying Officer affirms the PERM denial, the employer is then given an opportunity to submit a BALCA appeal.

Once a case is docketed, BALCA sends a notice to the employer requiring submission of a statement of intent to proceed within 15 days and sets a 45-day deadline to submit appellate brief.

Processing Times

Once a case is submitted and docketed at BALCA, the average processing time until a decision is reached for FY2010 was 120 days.    Factoring the docketing period and including any employer-required documents, such as intent to proceed and appellate brief, BALCA reports processing time of 6 months.  This does not include cases which are grouped and held pending a decision on a related case.

BALCA reports that once cases are accepted, they are generally processed in a general “first-in first-out” order based on the docketing date (and not based on priority date).

BALCA and the Capitol Immigration Law Group

Our office handles a number of requests for reconsideration and BALCA appeals on PERM denials.  PERMs are being denied on a number of reasons, some of which are difficult to appeal.  Also, and unfortunately, a DOL has started denying more PERM cases on the basis of clerical (and “harmless”) omissions.  Our office can help you review your PERM denial and, if necessary, assist in the appeal process.  Please contact us if we can be of any help.