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 “Computer Software Engineer.”
The Employer’s Labor Application was accepted by the CO on July 26, 2007, where the prevailing wage was indicated as $50.88 per hour. The Employer also gave evidence of posting for the position on a job search website from February 4, 2007 to February 21, 2007. An audit was issued on September 19, 2007 by the CO requesting additional recruitment documentation. The Employer submitted evidence of its ad posting on monster.com for 17 days, which listed the salary as 50 to 70 dollars per year. Since the wage listed on the ad was lower than that listed on the prevailing wage document, the CO denied certification. On December 12, 2007, the Employer asked for a re-evaluation citing the fact that they submitted the wrong job advertisement, the correct one was an ad placed on NJ.com. On the NJ.com advertisement for the job there was no indication of wage. Again the CO denied certification citing 20 C.F.R. § 656.24(g) which states a review can only include documentation requested from a CO or documentation that that Employer originally did not have the opportunity to present.
PERM regulation 20 C.F.R. § 656.24(g)(2) controls and it provides a request for reconsideration may only include “documentation actually received from the employer in response to a request from the CO” or “documentation that the employer did not previously have the opportunity to present to the CO.”
Accordingly, the Board affirmed the decision of the CO in denying labor certification.