BALCA Remands Finding Evidence of Job Order Placement Sufficient

Posted On: February 9, 2011

The Board of Alien Labor Certification Appeals (BALCA) recently vacated and remanded the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the nonprofessional position of “Baker.”

The Employer’s application was accepted for processing on May 2, 2007 but later denied by the CO who cited that the Employer could not prove the business was a bona fide entity. The Employer submitted evidence to show the business was bona fide. As a result, the CO issued an Audit Notification and requested documentation of the Employer’s recruitment procedures as well as a copy of the job order the Employer placed with the State Workforce Agency (SWA). The Employer’s response to the audit was filed but certification was again denied by the CO who stated the Employer submitted insufficient documentation for the SWA job order. The Employer asked for reconsideration and argued that the documentation submitted complied with the regulatory requirement. The Employer also noted a certified copy was unable to be obtained because prior to the audit, the records were purged after 18 months by the SWA. Still, the CO found the denial accurate citing it was the Employer’s duty and requirement to “retain documentation supporting the application for five years under the regulation.” The case was forwarded to BALCA. On appeal, the Employer argued that there are no current standards that specify what constitutes proof of a SWA job order.

PERM regulation 20 C.F.R. § 656.17(e)(2)(i) controls and it provides “the start and end dates of a job order entered on the application serve as documentation of placing the SWA job order.”

After reviewing the case, BALCA agreed with the Employer in that there are no specific regulations on “what type of documentation is sufficient enough to establish the job order was placed in compliance with the regulations.” Further, BALCA believes the CO did not have the authority to require the Employer to provide such concrete evidence of the job order. In this instant case, BALCA found the Employer did give sufficient documentation of the SWA job order.

Accordingly, the Board vacated the decision of the CO in denying labor certification and remanded to the CO to grant certification.