BALCA OKs Omission of Language Requirement in NOF

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 “Production Supervisor.”

Upon evaluating the Employer’s Application for Permanent Labor Certification, the CO denied the Labor Application because he believed it violated PERM regulation 20 C.F.R. 656.17(f)(3), as made applicable by regulation 20 CFR 656.10(d)(4). The CO stated the Employer’s Notice of Filing (NOF) did not include the requirement of having the “ability to speak Spanish” that was listed on the Employer’s 9089 form. The regulations require that an advertisement “provide a description of the vacancy specific enough to apprise the US workers of the job opportunity for which certification is sought.”

The Employer sent a reconsideration request to the CO. In the argument, the Employer stated their NOF met the criteria, as it provided enough information for job applicants and by omitting the Spanish requirement, it would have allowed more candidates to apply.

Upon reconsideration of the employer’s arguments, the CO confirmed his denial of the labor certification.

The CO forwarded the case to BALCA for further examination. After BALCA’s examination of the case, the CO’s decision to deny certification was overturned. BALCA believed that PERM regulation 656.10(d)(4) does not mandate that all job requirements have to be listed on an advertisement. Advertisements only have to be specific enough to apprise the U.S. workers of the job opportunity. BALCA believed the exclusion of the Spanish requirement did not violate the PERM regulations, as the NOF was specific enough to apprise U.S. workers of the job opportunity.