BALCA COVID-19 Staffing Shortages and Case Processing Delays
The COVID-19 pandemic significantly affected many government agencies in the
United States, including those involved in employment-based immigration.
The Board of Alien Labor Certification Appeals (BALCA), which reviews appeals
of denied labor certification applications, experienced operational challenges
during the pandemic that contributed to delays in the processing of cases.
These disruptions affected employers and foreign workers involved in the
PERM labor certification process, an important step for many employment-based
green card applications.
What Is BALCA?
BALCA is an administrative appellate body within the U.S. Department of Labor
that reviews appeals from employers whose PERM labor certification applications
have been denied by the Office of Foreign Labor Certification (OFLC).
When a PERM application is denied by the Department of Labor, the employer
may request reconsideration by the certifying officer or file an appeal with
BALCA. The Board evaluates whether the denial was consistent with labor
certification regulations and whether the employer complied with recruitment
and documentation requirements.
Impact of COVID-19 on Government Operations
During the COVID-19 pandemic, federal agencies shifted to remote operations
and implemented public health measures that limited in-person staffing.
Many immigration-related offices experienced reduced operational capacity,
which slowed the processing of applications and appeals.
Staffing shortages, remote work adjustments, and increased case volumes
created delays in reviewing immigration filings across multiple agencies.
Employment-based immigration programs, including the PERM labor certification
system, were among those affected.
Delays in PERM and BALCA Case Processing
The PERM labor certification process already requires multiple stages,
including prevailing wage determinations, recruitment of U.S. workers,
and Department of Labor review. Pandemic-related disruptions added
additional delays to this process.
In many cases, the Department of Labor experienced backlogs in reviewing
applications and responding to employer filings. Prevailing wage
determinations and PERM applications often took significantly longer
than normal to process. For example, some reports showed prevailing
wage determinations taking several months and PERM processing times
extending beyond a year in certain periods.
These delays affected cases that later reached BALCA on appeal, as the
Board must review detailed records and legal arguments before issuing
decisions.
Operational Challenges for BALCA
Like many administrative tribunals, BALCA had to adapt to pandemic-related
limitations. Reduced staffing levels and changes in administrative
procedures meant that appeals sometimes remained pending longer than
expected.
Appeals before BALCA involve complex legal questions regarding the
interpretation of labor certification regulations. Each case requires
review of the administrative record, employer recruitment documentation,
and arguments submitted by the parties.
Because of these factors, the review process may take considerable time,
particularly during periods when staffing levels are limited or when
large numbers of appeals are pending.
Broader Effects on the PERM Labor Certification System
The PERM labor certification program is used by U.S. employers to sponsor
foreign workers for permanent residence in the United States. Employers
must demonstrate that there are no able, willing, and qualified U.S.
workers available for the offered position and that hiring a foreign
worker will not negatively affect wages or working conditions of U.S.
workers.
Processing delays in any part of the PERM system—including prevailing
wage determinations, recruitment documentation review, or BALCA appeals—
can significantly extend the overall timeline for employment-based
immigration cases.
In some periods, average PERM processing times have reached more than
a year due to backlogs and staffing limitations within the Department
of Labor. These delays can affect workers waiting for employment-based
green cards and employers seeking to retain skilled employees.
Steps Employers May Consider
Employers involved in PERM labor certification or BALCA appeals should
carefully monitor case deadlines and maintain complete documentation.
Because employment-based immigration cases often involve strict filing
requirements, accurate recordkeeping is essential.
Employers may also benefit from consulting experienced immigration
attorneys when preparing PERM filings or responding to audit requests
and appeals. Careful preparation at the initial filing stage can reduce
the likelihood of denials and subsequent appeals.
Looking Ahead
While pandemic-related disruptions have gradually eased, immigration
agencies continue to address backlogs created during the COVID-19 period.
Efforts to increase staffing, modernize filing systems, and streamline
case processing may help reduce delays over time.
Nevertheless, employers and foreign workers pursuing employment-based
immigration should be prepared for longer processing times and should
plan accordingly when navigating the PERM labor certification process
and potential BALCA appeals.