BALCA Affirms Denial on Ground That Alien Did Not Meet Educational Requirements After Revision of Form 9089

Posted On: September 22, 2010

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

The Employer originally stated on the ETA Form 9098 that the position required a high school education and 24 months of experience in the job but when the alien filed his application he only had a high school education. The application was returned to the Employer by the CO based on the grounds that the Employer failed to indicate the year the education was completed. When the form was returned, it showed the alien did not have any education but on the Form 9098 it still stated that high school completion was a requirement for the job. On the grounds that the alien did not meet the job qualifications of Form 9098 the CO denied the application. A request for reconsideration of the application was submitted; the CO found that the grounds for denial were valid. Since the education level had been changed on the Form 9098, the alien no longer had the required experience for the job.

PERM Regulation 20 C.F.R. § 656. 21 (b)(5) controls and provides that an “employer must demonstrate that the requirements it specifies for the job are its actual minimum requirements and that it has not hired the alien or other workers with less training or experience for jobs similar to the one offered.” When the form was resubmitted showing the alien with no education and the job requiring a high school degree, the CO found that the alien was unqualified for the job. The CO made the decision to deny based on the Form 9098 not based on documents accompanying the form.

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

In Matter of Grand Metropolitan Housewares, Inc.