BALCA Affirms CO's Denial Where Employer Lost Original PWD

Posted On: January 27, 2011

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 “Team Lead/Software Engineer.”

The Application was accepted by the CO on September 6, 2007. The Employer indicated on ETA Form 9089 a prevailing wage of $81,349 issued by the State Workforce Agency (SWA) with a determination date of July 15, 2007 to June 1, 2008. An Audit Notification was issued requesting either a copy of the original Prevailing Wage Determination (PWD) from the SWA or a copy of the request for the PWD. The response to the audit by the Employer contained a so-called duplicate copy of the PWD because the original was lost. The so-called duplicate copy of the PWD had a wage of $89,544 with a determination date from October 30, 2007 to June 30, 2008. The CO denied certification on April 9, 2009 citing a violation of 20 C.F.R. § 656.10(c)(1).The Employer argued the offered wage to the alien did in fact surpass that of the so-called duplicate PWD and the lost original PWD. The case was forwarded to BALCA by the CO on February 4, 2010. In the instant case, BALCA agreed that the CO was correct in denying certification based on the fact that the PWD submitted in response to the audit notification was entirely different than the one attested to on ETA Form 9089.

PERM regulations 20 C.F.R. § 656.10(f), 20 C.F.R. § 656.40(a), and 20 C.F.R. § 656.41(a) control and provide that when filing for an application for permanent alien labor certification, all documentation attested on the application must be kept for at least five years. Additionally, a PWD must be requested from the appropriate SWA and an employer who wishes to review a PWD must make the request within 30 days of its issuance. Here, the Employer submitted an entirely different PWD, with a new monetary amount and a new determination period in response to the audit; information not initially provided on ETA Form 9089.

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