BALCA Affirms Denial - NOF with Wage Equal to 99.51% of Prevailing Wage is Insufficient

Posted On: June 9, 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 “Purchasing Manager.”

On Form ETA 9089 the Employer listed the offered wage and prevailing wage at $67,787.00 per year. An Audit Notification was issued by the CO requesting documentation including a copy of the Notice of Filing (NOF). A copy of the NOF was submitted as the Employer’s response to the Audit, listing the rate of pay as $67,454.00 per year. The application was denied by the CO on the grounds that the NOF listed a lower wage than the prevailing and offered wage. A request for reconsideration was submitted by the Employer arguing that labor certification should not be denied “based solely on the deficiency less than .50% of the prevailing wage.” However, the CO still denied certification after reconsideration and the case was then forwarded to BALCA. In the Employer’s appellate brief, he argued that the amount of $333 difference between the prevailing wage and NOF listed wage should be forgiven, since it equals 99.51% of the prevailing wage.

PERM regulation 20 C.F.R. § 656.17(f)(5) and (7) controls and it provides the Notice of Filing must list a wage equal or exceed the prevailing wage entered by the State Workforce Agency.

In the instant case, the wage listed on the NOF is less than the prevailing wage and less than the wage offered to the alien. BALCA found the $333 difference clearly violated the statutory requirement and the regulations at Section 656.17(f)(5) and (7).

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