PERM Denied: BALCA Rules Address Alone Does Not Prove Filing

BALCA: Why a Postal Receipt Without the Proper Address Is Not Enough for PERM

In the PERM (Program Electronic Review Management) labor certification process, employers seeking to hire
foreign workers must comply with strict recruitment and notice requirements. One common misunderstanding is
that simply providing a postal receipt (e.g., certified mail receipt) proves compliance with the Notice of
Filing (NOF) requirements. However, the Board of Alien Labor Certification Appeals (BALCA) has repeatedly
held that a postal receipt alone is insufficient to satisfy PERM regulations. It is insufficient without the proper content, including the correct address of the
Department of Labor Certifying Officer.

What Are Notice of Filing Requirements?

Under the PERM regulations (20 C.F.R. § 656.10(d)), employers filing a PERM application must post a Notice
of Filing (NOF) at the place of employment or use other permissible recruitment methods for professional
positions. The NOF must include specific information required by regulation, including:

• The fact that the employer intends to file a PERM labor certification application.
• A statement that any person may provide evidence or information relevant to the application.
• The address of the U.S. Department of Labor Certifying Officer’s office where such
  evidence or information may be submitted. (20 C.F.R. § 656.10(d)(3)(iii))

This address requirement is critical because it ensures that U.S. workers and other interested parties know
where to submit comments or evidence about the job opportunity.

Why a Postal Receipt by Itself Is Not Enough

A postal or certified mail receipt only shows that something was mailed; it does not show that the NOF
itself contained all required information. BALCA has consistently held that:

• A postal receipt cannot cure a NOF that lacks the required address of the Certifying Officer.
• The NOF posting must contain correct contact information so that U.S. workers can reasonably know
  where to send evidence. Without a proper address, the NOF is deficient regardless of whether it
  was mailed. (BALCA precedent)
• Evidence that recruitment materials were mailed without showing that the NOF itself complied with
  regulatory content requirements does not demonstrate PERM compliance. (BALCA decisions)

BALCA’s reasoning is that PERM’s NOF requirements are not technical formalities but essential to ensuring
transparency and accessibility in the recruitment process. If the NOF does not clearly state where to send
evidence, then interested parties cannot meaningfully participate in the process, and the regulation has
not been satisfied.

BALCA Case Law Examples

Several BALCA decisions illustrate this principle:

• Hawai‘i Pacific University, 2009‑PER‑00127 (En Banc) – BALCA affirmed denial where
  the NOF omitted the correct Certifying Officer address; the employer listed a regional address that
  did not allow workers to know where to send comments. BALCA held that the NOF was deficient and that
  a postal receipt could not cure the omission.
• Soon Pal Kwon, 2010‑PER‑00056 – In this case, the NOF listed two addresses and stated
  that evidence could be sent to either. One address was not a valid address for the Certifying Officer.
  BALCA sustained the denial because the NOF failed to provide a clear and correct address.
• Form‑Co Supply, LLC, 2007‑PER‑00118 – BALCA upheld a denial where the NOF contained an
  incorrect office address, reiterating that a postal receipt or proof of mailing could not fix the
  regulatory deficiency in the notice itself.

Regulatory Basis — 20 C.F.R. § 656.10(d)

The PERM recruitment rule requires specific notice language, including the Certifying Officer’s address,
because it is designed to allow U.S. workers and others a fair opportunity to provide evidence. The relevant
portion of the regulation states:

20 C.F.R. § 656.10(d)(3)(iii): “The notice must contain the information described in this
paragraph and include an offer of a 10‑day period in which the employer will accept applications
or resumes from U.S. workers for the job opportunity. The notice must also state the address of
the Certifying Officer where any person may provide documentary evidence that the job opportunity
has been or will be filled.”

This requirement is not satisfied if the NOF contains an incorrect, incomplete, or missing address.

Why This Matters in PERM Audits and Appeals

In PERM audits and BALCA appeals, the Department of Labor reviews documentation employers submit to show
compliance with recruitment and notice requirements. If the NOF is defective — for example, because an
address is missing — then the PERM application may be denied, and a subsequent appeal to BALCA may
fail, even if all other recruitment steps were properly documented.

Employers sometimes assume that a postal receipt showing delivery of materials proves compliance.
However, BALCA decisions make clear that evidence of mailing does not substitute for compliance with
regulatory content requirements.

Practical Guidance for Employers

To avoid BALCA denials based on NOF deficiencies, employers should take the following steps:

• Carefully prepare the NOF: Ensure it contains all required elements including the
  correct name and mailing address of the Department of Labor’s Certifying Officer’s office.
• Use current contact information: Contact the Department of Labor to confirm current
  Certifying Officer addresses before posting the NOF.
• Document postings thoroughly: Keep dated copies of the NOF text, posting location,
  and proof of posting (e.g., a screenshot of the posted notice).
• Record mailing evidence: Maintain postal receipts for notices mailed to recruitment
  sources, but do not rely on them alone to demonstrate regulatory compliance.
• Review BALCA precedent: Understand how BALCA has interpreted notice requirements
  and adjust internal PERM procedures accordingly.

Conclusion

In PERM labor certification cases, a postal receipt alone is not enough to demonstrate compliance with
the Notice of Filing requirements if the NOF fails to include the required Certifying Officer address.
BALCA has repeatedly held that the regulatory requirement for specific content cannot be cured by proof
of mailing alone. Employers should ensure that their NOF language fully complies with 20 C.F.R. § 656.10(d)
to avoid denials and appeals.

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