BALCA Remands - Evidence of Employer's FEIN was Sufficient

Posted On: June 22, 2011

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

The Employer’s Application was denied by the CO who found the company to be illegitimate because the Employer did not have a valid Federal Employer Identification Number (FEIN). The CO did not issue an audit notification. In the Employer’s request for review copies of its business license, FEIN documentation, certificate of liability insurance, and income tax returns were included. In the reconsideration of the decision, the CO stated the Employer did prove sufficient evidence verifying the business license but there was no documentation to support the Employer’s FEIN. The CO also pointed out that no response had been received by the Employer after request had been sent to the Atlanta National Processing Center for proof of the Employer’s FEIN. The case was forwarded to BALCA; however, the Employer did not submit an appellate brief. In the Statement of Position, the CO argued that because the Employer failed to produce any documentation validating its FEIN he was unable to determine whether the company was legitimate and therefore had to deny certification.

PERM regulation 20 C.F.R. § 656.24(g)(2)(i)-(ii) controls and it provides in a request for reconsideration of denial of labor certification an employer may submit documentation requested from the CO or documentation that the Employer did not have the opportunity to present when the application was originally filed.

In the instant case, certification was denied because the CO could not determine whether the company was a bona fide business entity. In reconsideration, documentation concerning the Employer’s FEIN was presented by the Employer that was not originally available at the time of filing. However, the CO still found that it could not determine if the company was bona fide. BALCA found that the Employer did provide information which lists the Employer’s FEIN and matches the number on the certification application, concluding that the CO’s denial was improper.

Accordingly, the Board vacated the decision of the CO in denying labor certification and remanded the matter for further processing.