A recent case decided by BALCA involved a New Jersey restaurant resulted in overturning an incorrect denial by the original certifying officer. In that case, the issue was that New Jersey’s workforce agency “referred” a number of people in their database to the employer in response to its advertisement/job order placed on their website. By law, employers are not required to contact such people (you only have to contact applicants who affirmatively applied). The issue here was that the employer arguably could have done more to document this and confirm these were referrals.

The referral issue is a tricky one in PERM matters because it varies a ton from state to state. Some states have websites that list whether anyone is an applicant or was referred by the agency, which is really helpful (Texas has a very user-friendly website, for example). On the other hand, some states have an interface where only their staff can see whether it was an application or a referral. Mississippi is one example of this where I’ve had some complications arise, and it sounds like that was possibly an issue in this case as well.

The practical takeaway from this from the perspective of an employer is that we’ll need to work to establish clearly whether names coming through the state workforce departments’ site are affirmative applicants or they are referrals. This was an issue here because it seems from the decision, the lawyer and employer thought they’d done enough to show the referrals at the outset and, by the time it came to prove it during an audit, they were essentially having to go back and piece things together from what they could locate at that point.

Ultimately, though, common sense prevailed and their case was approved, so I suppose all’s well that ends well.