H1B Visa Lawyer Blog
The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Software Engineer.”
The CO denied the labor certification stating “the Employer did not notify potentially qualified laid-off US workers of the job opportunity.” In response, the Employer requested reconsideration of the denial. The Employer argued they did not have a US worker who met the qualifications of the position. The CO sent an Audit Notification requesting documentation of all of the laid-off US workers and how they were advised of the available position and the results of such notification and consideration. A month later, the Employer presented a recruitment report that summarized its “lay-off review.”
Once again, the CO denied the labor application because he believed “a US worker was rejected for non-job related reasons.” The Employer did not re-hire the US worker because he did not have the required specific skill sets. While the CO was aware that the US worker lacked the qualifications, he believed the worker could gain through reasonable on the job training the skills necessary to perform the job duties of the position.
The Employer filed another request for reconsideration of the denial. They argued the lack of special skills was a “lawful job related reason” for rejection. The Employer strongly felt those skills could not be taught within a realistic period of on the job training. In response, the CO upheld his denial and forwarded the case to BALCA for review. The CO stated his denial was valid because the Employer did not provide any documentary proof, as mere assertions are insufficient to prove a lawful rejection.
Upon review, the BALCA panel reversed the denial of the CO. The Board believed the Employer appropriately turned down the US Worker because he failed to meet the minimum requirements of the proffered position as listed in the ETA 9089. In addition, the CO did not mention in his initial denial that he wanted to see actual documentation of the lawful job-related reasons for rejection. BALCA believed the Employer was not provided sufficient notice of this part of the CO’s denial and was not able to present any evidence to rebut. BALCA stated the CO did “not provide adequate authority to deny the application,” so it was sent back to the CO for certification.