BALCA Says Content Requirements for Ads Do Not Apply to SWA Job Orders

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 “Translator.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied certification. The CO cited the Employer’s ETA Form 9089 indicated the job as non-professional; however, the Standard Occupational Classification (SOC) for the occupation listed is found on the list of Professional occupations from Appendix A of the Preamble to 20 CFR 656. The CO stated the Employer did not oversee the appropriate recruitment process.

The Employer sent a reconsideration request to the CO arguing that the position of “Translator” is not located on the Professional Occupations list. They argued their Labor application was correct and their recruitment was suitable for the non-professional position. In response, the CO sent the Employer a “Request for Information.” The Employer offered the requested information. Upon review of this information, the CO sent an Audit notification. The Employer presented the State Workforce Agency (SWA) job order and other documentation as requested.

Once the CO reviewed the Audit information, he issued a second denial stating the SWA job order included job requirements which surpassed those listed on the ETA Form. This was in violation of PERM regulation 20 C.F.R. 656.17(f)(6). He cited the SWA job order posted contained an experience requirement of 2-15 years, whereas the ETA Form 9089 only required 24 months experience. The Employer requested reconsideration arguing that the regulation section pertaining to job orders does not contain the same content requirements as those for advertisements. In addition, the Employer pointed out they could only choose the following: Intern, Entry Level (0-2 years), Mid-Career (2-15 years), or Senior (15+ years) on the job order. Since the proffered position required not less than two years of experience, they picked the Mid-Career option (2-15 years). The CO forwarded the case to BALCA for review. He did agree that the job order form contained pre-established levels but pointed out there was a free form field in which the employer had the opportunity to specify its actual minimum requirement.

After BALCA’s examination of the case, the panel agreed with the Employer that the PERM regulations governing advertisements do not apply to SWA job orders. They forwarded the application back to the CO for certification.