BALCA upholds denial of Labor application – Employer Placed Job Order after receiving denial

Posted On: April 10, 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 Restaurant Manager.

The Employer filed a LC on behalf of an alien worker and it was accepted for processing in July of 2006. The Employer specified in the application that the position was not a professional occupation. The CO then denied the application because the application did not include any evidence that a job order was placed with the State Workforce Agency (SWA) serving the area of intended employment for a period of 30 days. Thereafter, the Employer sought reconsideration on the ground that it placed a new advertisement with the SWA from November 7, 2006 to December 8, 2006. Subsequently, the CO denied reconsideration explaining that a new job order placed after the application had been filed could only be used to support subsequent filings, not the application at issue. 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 affirmation of the denial.

Upon BALCA review, it was determined that the PERM regulations for a nonprofessional occupation require that the employer must at a minimum place a job order and two newspaper advertisements within six months of filing the application. The job order must be placed with the SWA serving the area of intended employment for a period of 30 days. In the present case, the Employer’s job order was placed from February 9, 2006 to March 9, 2006, a period less than 30 days. Accordingly, the Employer’s job order was not long enough in duration to satisfy the requirements.

In summary, the Employer filed another job order after receiving the denial determination which did not cure the defect. As explained by the CO and reiterated by the Board, the new job order could be used to support subsequent filings, but did not help to correct the defect in the present petition. Thus, the CO properly denied certification.