BALCA upholds denial of Labor Certification – Notice of Posting Inadequate

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 “Specialty Cook/Italian.”

The employer filed a LC which was accepted for processing on June 13, 2006. Thereafter, the CO issued an audit notification letter requesting among other documents, the Employer’s Notice of Filing. The employer submitted its Notice of Filing, yet the Notice failed to provide the CO’s address or any other means of contacting the CO. As such, the CO issued a denial letter.

PERM Regulation 20 C.F.R. § 656.10(d)(3) controls and it provides that the Notice of Filing must (i) State that the notice is being provided as a result of the filing of an application for permanent alien labor certification for the relevant job opportunity; (ii) State that any person may provide documentary evidence bearing on the application to the Certifying Officer of the Department of Labor; (iii) Provide the address of the appropriate Certifying Officer; and (iv) Be provided between 30 and 180 days before filing the application.

The purpose of the regulation is to allow any person to submit documentary evidence bearing on the application for certification to the Certifying Officer (such as information on available workers, information on wages and working conditions, and information on the Employer’s failure to meet the terms and conditions with respect to the employment of alien workers and co-workers). By omitting the CO’s address and contact information, the purpose of the Notice of Filing was defeated.

As such, the Board had to affirm the decision of the CO in denying labor certification.

To read the entire decision: Matter of Ron Lopes, LLC