BALCA upholds denial of Labor application – Incomplete, Missing Required Information

Posted On: April 23, 2009

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination
of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Specialty Chef.

The Employer filed a LC on behalf of an alien worker and it was accepted for processing in September of 2005. In March of 2006, the CO denied the application because of numerous deficiencies. The appeal before the Board only addressed one of the deficiencies, the failure of the Employer to specify the expiration date of the State Workforce Agency (SWA) prevailing wage determination. The Employer’s original petition provided November 2003, as the determination date and stated “N/A” for the expiration date of the SWA prevailing wage determination. The CO’s denial letter addressed the issue concerning the absence of the expiration date. Thereafter, the Employer’s attorney filed a request for review. The Employer’s attorney provided answers for a number of the omissions and submitted additional documentation. In regards to the expiration date of the SWA prevailing wage determination, the Employer’s attorney stated 2004. Subsequently, the CO issued a letter of reconsideration in August of 2008. The CO found that the Employer’s attorney had successfully rebutted several of the deficiencies, but still affirmed the denial of certification based upon a number of reasons. The CO provided that the expiration date of the prevailing wage determination was an important piece of information that needed to be provided in a month, day and year format, consistent with the regulations. The CO then forwarded the case to BALCA. The Employer did not submit an appellate brief in support of its position, but the CO did file a brief urging denial based on the fact that the application was incomplete.

Upon BALCA review, it was determined that the directions for completing ETA Form 9089 clearly state that the Petitioner must enter the expiration date of the validity period of the prevailing wage determination received from the SWA in a month, day, year format. Additionally, the regulations provide that the SWA must specify the validity period of the prevailing wage, which in no event may be less than 90 days or more than 1 year from the determination date. Moreover, to use a SWA prevailing wage determination, Employers must file their applications or begin the recruitment required by 656.17(d) or 656.21 within the validity period specified by the SWA. The Employment and Training Administration (ETA) further provided that Employers must initiate at least one of the recruitment steps required for a professional or nonprofessional occupation within the validity period of the prevailing wage determination to rely on the determination issued by the SWA.

In this case, there was no specific expiration date to indicate whether the Employer complied with the required regulations. The application provided that the determination date was November 2003. The application was signed and submitted in September 2005 and accepted for processing later that same month. Thus, the Board believed it was possible that the prevailing wage determination was no longer valid when the Employer filed the application or initiated the required recruitment steps. Accordingly, the CO properly denied certification.