BALCA Vacated Denial - Issue: Alternative Job Requirements

Posted On: June 17, 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 “Programmer Analyst.”

The position advertised listed the minimum level of education required as a bachelor’s degree in computer science, information systems or computer engineering as well as 12 months experience in section H.4 and H.5 of the application. In Section H.8 the Employer also noted that just a bachelor’s with no experience or a foreign education equivalent would be acceptable for the position. Additionally, the Employer listed “system analysis & design, VB, C++, database design & development, MIS, operating systems, etc” in the section for specific skills and other requirements for the position. Certification was denied by the CO on the grounds that the alien only had a bachelor’s degree in information systems, no training or experience was listed to meet the requirements of the Employer. A request for review was submitted by the Employer who cited that a bachelor’s degree with no experience was an acceptable combination of education and experience. The case was then forwarded to BALCA and a Notice of Docketing was issued.

PERM regulation 20 C.F.R. § 656.16(i)(1) controls and it provides that the listed job requirements must match an Employer’s actual minimum job requirements.

In the instant case, the Employer does list on the application that he was willing to hire an individual with the required bachelor’s education and no experience as an alternative to the 12 months experience. The alien did meet the Employer’s alternative accepted education and experience requirements at the time of hiring. As a result, BALCA found the CO’s decision in denying certification unwarranted.

Accordingly, the Board vacated the decision of the CO in denying labor certification and returned the matter to the CO for completion of processing.