BALCA upholds denial of Labor application – Did Not Comply with “Notice of Filing” Requirements

Posted On: April 24, 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 Chef.

In May of 2006, the CO issued an Audit Notification letter. The CO requested that the Employer submit its Notice of Filing, among other documents requested. The Employer responded by submitting two Job Postings. Subsequently, the CO denied the application in December of 2006 on several grounds. The majority of the deficiencies focused on the Notice of Filing. The CO provided that the Notice of Filing failed to (1) state that the Notice was being provided as a result of the filing of an application for permanent alien labor certification, (2) state that any person may provide documentary evidence bearing on the application to the CO, (3) provide the CO’s address, and (4) list the wage offered for the position. In January of 2007, the Employer requested reconsideration and review of the denial. The Employer put forth the argument that the requested documentation was submitted to the CO in the context of the audit, and therefore, only a substantial failure to provide documentation may justify a denial of the application. Subsequently, the CO issued a letter of reconsideration providing that the denial was proper under 20 C.F.R. 656.10(d). The CO then forwarded the case to BALCA. The Employer did submit an appellate brief in support of its position, stating that the standard of consideration of whether to deny an application is whether the Employer’s filings constituted substantial compliance with the requirements of the Code of Federal Regulations. The CO also filed a brief urging denial based on the importance of the Notice of Filing requirement and its contents.

Upon BALCA review, the language of the applicable Federal Regulation was analyzed. The regulation at 20 C.F.R. 656.10(d) provides that the Notice of Filing must (i) state the notice is being provide as a result of the filing of an application for permanent alien labor certification for the relevant job opportunity; (ii) state any person may provide documentary evidence bearing on the application to the CO of the Department of Labor (DOL); (iii) provide the address of the appropriate CO; and (iv) be provided between 30 and 180 days before filing the application. Additionally, if any application is filed under Sec. 656.17, the notice must contain the information required for advertisements by Sec. 656.17(f), must state the rate of pay (which must equal or exceed the prevailing wage entered by the SWA on the prevailing wage request form), and must contain the information required by paragraph (d)(3) of this section.

In this case, the CO determined that the job postings did not state that the notice was provided as a result of the filing of a permanent labor certification application, did not state that anyone could provide information to the CO, did not provide the CO’s address, or list the wage offered. The Employer’s Notice of Filing was missing four required elements. Accordingly, the Board rejected the Employer’s argument that it was in substantial compliance with the regulations. The Board further provided that the absence of required information in the Notice of Filing was not harmless error, was required under the regulations, and could not be overlooked. Additionally, the Board provided that Section 656.20(b) states that a substantial failure by the Employer to provide required documentation will result in that application being denied and may further result in supervised recruitment for up to two years.

Section 656.20(b) constitutes authority for the CO to deny an application based on a substantial failure to produce all of the documentation required to be retained under 20 C.F.R. 656.10(f). It does not mean that the CO is barred from denying an application if, except for the deficiency identified by the CO in the audit, the Employer’s application substantially complied with regulations overall. Accordingly, the CO properly denied certification.