BALCA upholds denial of Labor Certification – Employer Submitted Labor less than 30 days after end of SWA job order

Posted On: August 31, 2009

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Office Clerk, General."

The employer filed a LC which was accepted for processing on October 16, 2006. Form ETA 9089 provided that the State Workforce Agency (SWA) job order had been placed from September 5, 2006 until October 6, 2006. On August 10, 2007, the CO denied labor certification because the application was filed less than 30 days after the end of the job order. The Employer then submitted a request for review, requesting that its previous SWA job order, commencing on August 22, 2006, be used instead of the job order placed on September 5, 2006. Accordingly, in October of 2008, the CO thereafter denied reconsideration on the ground that the employer’s evidence did not support a changing of the SWA job orders.

The CO then forwarded the case to BALCA. The Employer filed a Statement of Intent to Proceed with the appeal, but did not file an appellate brief. The CO filed a brief arguing that its decision should be affirmed by the Board.

Upon BALCA review, regulation 20 C.F.R. § 656.17(e) controls, it provides that if the application is for a nonprofessional occupation, the employer must at a minimum, place a job order and two newspaper advertisements within 6 months of filing the application. The steps must be conducted at least 30 days but no more that 180 days before the filing of the application. It further provides that a job order be placed with the SWA serving the area of intended employment for a period of 30 days. The start and end dates of the job order entered on the application serve as documentation of this step. Here, the SWA job order commenced on September, 5, 2006 and ended on October 6, 2006. The Employer thereafter filed the Labor application on October 16, 2006, a period less than 30 days from the end date of the SWA job order, a clear violation of the regulations. The purpose of the regulation is to allow the Employer ample opportunity to review resumes, conduct interviews, and thoroughly test the U.S. labor market. The Employer had placed a previous SWA job order before the one at issue, in which it asked the CO to change the SWA job order to be in compliance with the regulations. However, the prior filed SWA job order was for the position of Nannie, the present position being Office Clerk.

The Board affirmed the CO’s decision that the Employer’s evidence did not justify changing the dates of the SWA job order on ETA Form 9089, as it was for an entirely different position. Additionally, the Board concluded that because the labor was filed only ten days after the end of the SWA job order, the application was properly denied.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.