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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Slitting Supervisor.

The labor certification application was accepted by the CO in October of 2005. A few months later, the CO issued an Audit Notification to the Employer. Among other items, the Audit requested a copy of the Notice of Filing used for the alien worker’s labor application. The Employer responded by complying with the request and sending the Notice of Filing. In October of 2006, the CO issued a denial letter on the grounds that the Notice of Filing failed to contain the appropriate CO’s contact information including the physical address. Thereafter the Employer submitted a request for reconsideration, and only included a notice of entry of appearance of a new attorney; no argument or other information concerning the grounds for denial were provided. In September of 2008, the CO issued a letter of reconsideration finding that the denial of labor certification was valid. The CO noted that the Employer failed to provide any information relating to the missing information on the Notice of Filing. The CO then forwarded the case to the Board. New counsel for the Employer filed a brief arguing that the failure to provide the address of the CO was harmless error and therefore denial based upon a typographical error was a denial of due process. Counsel also stated that when the Employer was made aware of the omission, he agreed to repost the Notice of Filing. The CO appropriately filed an appellate brief stating that the Board had ruled on the issue of failure to include the address of the appropriate CO on the Notice of Filing in a 2007 case.

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Posted In: BALCA Decisions , Immigration News , PERM - Labor Certification

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Marketing Consultant.

In August of 2005, the Employer submitted a labor certification application on behalf of an alien worker. The application indicated that the job location was Warren, Rhode Island. Shortly thereafter, the CO issued an audit notification requesting among other documents, the prevailing wage determination (PWD) issued by the State Workforce Agency (SWA). The PWD submitted by the Employer was from California, not Rhode Island. Portions of the California form were crossed out, with Rhode Island being inserted. The portion of the form which provides the job site address and county of job site listed both a Rhode Island address and county and a California address and county. The form was not signed nor dated by the SWA and several important portions were left blank. Specifically, the portions dealing with the Survey Data, Survey Area, Research Analyst were blank. No Rhode Island phone number was provided. The Employer then requested reconsideration arguing that the Rhode Island SWA had informed his office that they could utilize the California prevailing wage request form because they did not have their own form at the time of request. In September of 2008, the CO issued a letter denying certification because the Employer had failed to submit a prevailing wage determination that complied with regulations. The PWD submitted was not effectively endorsed by the Rhode Island SWA, and therefore, it could not be considered valid. The CO then forwarded the case to the Board. Counsel for the Employer argued that it was harmless error, and the CO argued that the Employer failed to provide sufficient documentation to demonstrate that the Rhode Island SWA issued the PWD in question.

Upon BALCA review it was determined that the regulations require that an Employer request a prevailing wage determination from the SWA having jurisdiction over the area of intended employment. Additionally, the SWA must endorse the PWD and return it properly to the Employer. In the case at hand, there was not sufficient information presented that the PWD submitted was actually issued by the Rhode Island SWA.

Accordingly, the CO properly denied certification.

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Posted In: BALCA Decisions , Employment Based Immigration , Immigration News , PERM - Labor Certification

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Stone Carver.

The Employer submitted an application and it was accepted for processing on August 17, 2006. The Employer indicated that the position was for a nonprofessional. On Form ETA 9089, the Employer indicated that the State Workforce Agency (SWA) job order ran from July 5, 2006 until August 5, 2006. In July of 2007, the CO issued a letter denying certification. The main reason for the denial was that the SWA job order was not completed at least 30 days prior to the filing of the application. A request for review was sent to the CO by the Employer’s Attorney. In summary, counsel for the Employer indicated that it had not exceeded the 180 day limit for filing. In September of 2008, the CO issued a letter of reconsideration which established that the application was filed only 11 days after the end date of the SWA job order. The CO reiterated in its letter to the Employer that the denial was valid. The CO then forwarded the case to the Board. Counsel for the Employer did not file an appellate brief, whereas the CO did file an appellate brief urging that the denial be affirmed.

Upon BALCA review it was determined that the regulations at 20 C.F.R. § 656.17(e) provide that recruitment must occur prior to the filing of the labor certification application. Specifically, if the application is for a nonprofessional occupation, the Employer must (1) place a job order, and (2) place two advertisements within six months of filing the application. The recruitment steps must be conducted at least 30 days but no more than 180 days before filing the application. Accordingly, entering the start and end date of the SWA job order on Form ETA 9089 establishes proof that these steps were completed properly. In the present case, the Employer failed to wait the proper period of time before filing its application, it only waited 11 days and needed to wait at least 30 days before submitting its application.

Accordingly, the CO properly denied certification.

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Posted In: BALCA Decisions , Employment Based Immigration , Immigration News

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Cook, Private Household.

The Employer submitted the application by mail. The application was accepted for processing in January of 2006. In the application, the Employer indicated that the prevailing wage determination (PWD) was based on an ‘Employer Conducted Survey.’ The application failed to include the determination and expiration dates for the prevailing wage determination. In April of 2006, the CO denied certification based on the failure to complete the section dealing with the prevailing wage determination. The CO received the Employer’s request for reconsideration in May of 2006. The Employer stated in its request that it did not receive a response from the State Workforce Agency (SWA), and thereafter decided to adopt its own prevailing wage determination based upon speaking with other similarly situated Employers. The Employer submitted along with the request a new version of Form 9089, in which it indicated ‘PW based on Employer Conducted Survey,’ and a copy of the fax to the Maryland, SWA. On reconsideration, the CO denied the application because the Employer failed to indicate the expiration date of the prevailing wage determination. The CO then forwarded the case to the Board. Counsel for the Employer did not file an appellate brief, whereas the CO did file an appellate brief stating that even when an Employer bases its PW determination on a survey, the survey itself must be submitted to the SWA, who then decides whether the survey was acceptable and issues the prevailing wage determination.

Upon BALCA review it was determined that the PERM regulations provide that an Employer must request a prevailing wage determination from the SWA having jurisdiction over the area of intended employment. The regulations provide that the SWA must specify the determination date and expiration date of the PW determination. The regulations at 20 C.F.R. § 656.40(c) state that if an Employer uses a SWA PWD, the Employer must file the petition or begin recruitment within the validity period of the PWD.

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Posted In: BALCA Decisions , Employment Based Immigration , Immigration News , PERM - Labor Certification

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The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Purchasing Manager.

The Employer filed an ETA Form 9089, Application for Labor Certification on behalf of the beneficiary. The position of Purchasing Manager required two years of experience in the job offered and a Bachelor’s degree in International Business, Marketing. The Employer also listed an alternate education requirement of a Bachelor’s degree in Public Relations, English or any other Business Administration major. Following an audit in December of 2006, the CO denied certification because the Notice of Filing was not posted in accordance with the regulations. The Notice of Filing was originally posted in the President’s handwriting from July 11, 2005 until July 25, 2005. The regulations require that the Notice of Filing be posted between 30 and 180 days before the Employer files ETA Form 9089. In this case, the Employer filed ETA Form 9089 on August 9, 2005. Counsel for the Employer stated that the July 11, 2005 date was an error and that the date should have been listed as May 11, 2005. The CO informed the Employer that documentation fabrication created after the fact to correct a deficiency may be discounted and can continue to be the basis for a denial.

Furthermore, while the beneficiary met the primary experience requirements for the position, he did not meet the primary education requirements for the position. To show that the requirements for the position were not unlawfully tailored to the alien, the Employer must have indicated that U.S. applicants with suitable combinations of education, training, or experience were acceptable. In this case, the Employer failed to do so. The CO then forwarded the case to BALCA for review. Counsel for the Employer contended that there was no document fabrication or motive to deceive when filing the petition. Additionally, Counsel indicated that although the form did not state that qualified U.S. applicants with similar educational experience were acceptable, the criterion was applied in its recruitment efforts. The CO reiterated in its brief that the Employer had not posted the Notice of Filing at least 30 days before the filing of ETA Form 9089. The CO also stated that he did not abuse his discretion in this case.

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Posted In: BALCA Decisions , Employment Based Immigration , PERM - Labor Certification

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The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination
of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Stone Inspector.

The Employer filed an ETA Form 9089, Application for Labor Certification on behalf of the beneficiary. In February of 2008, the CO issued an Audit Notification letter requesting among other documents, a copy of the Employer’s Notice of Filing. Thereafter, the Employer supplied a copy of its Notice. In May of 2008, the CO denied the application because the Employer failed to provide its name on the Notice of Filing. Attorney for the Employer filed a motion for reconsideration arguing that since the notice of filing is posted within the job premises, the name of the company does not need to be included, as long as the name of the President and a telephone number are present on the posting. The actual Notice of Filing did not include the Employer’s company name, but did include the President’s name and telephone number. Accordingly, the CO denied reconsideration and thereafter forwarded the case to BALCA for review.

Upon BALCA review, it was determined that the regulations at 20 C.F.R. §§ 656.10(d)(4) and 656.17(f)(1) control the issue before the Board. The regulations require that the Notice of Filing list the hiring company. The CO’s appellate brief indicated that the reasoning behind this regulation is that sometimes more than one employer may reside at a single facility or location. Specifically, the CO stated that when multiple employers share an office and a Notice of Filing is posted in a common area in that office it could potentially apply to either employer. Further, without the name of the Employer, it would not be possible to determine which Employer the Notice of Filing applies. The Board identified the Petitioner’s argument, in that common sense should be used to determine the outcome rather than statutory interpretation. However, the Board found the omission was not harmless error and stated that to make a case out for equitable relief in favor of the Petitioner, the Petitioner needed to do more to show that the company’s name was not needed on the Notice of Filing. They needed to show the size of the company, how well the workforce knew the President of the Company, and whether the place in which it placed its Notices was a place exclusively designated for company bulletins.

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Posted In: BALCA Decisions , Employment Based Immigration , PERM - Labor Certification

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The Board of Alien Labor Certification Appeals (BALCA) recently vacated the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Computer Systems Analyst. Accordingly, the Board directed the CO to grant certification. This LC was filed prior to the effective date of the “PERM” regulations.

The Employer filed an ETA Form 9089, Application for Permanent Alien Employment on behalf of the beneficiary. The CO denied the application in December of 2006, solely on the basis that Form 9089 lacked the Kellogg language. Specifically, the CO found that the alien currently worked for the Petitioner, and only qualified by virtue of an alternative experience requirement, and the application did not provide the following language: “any suitable combination of education, training, or experience” would be acceptable.

Upon BALCA review, it was determined that the Francis Kellogg decision governs the nature of this case. In Kellogg, the Board reversed the CO’s denial of certification based on the Employer’s failure to write the Kellogg language on the ETA Form 9089 because a denial on that basis would offend fundamental fairness and procedural due process. It would offend fundamental fairness and procedural due process because the instructions for ETA Form 9089 failed to provide a place to write the language, and the Employment Training Administration (ETA) had not provided instructions to the public to handle the issue in a timely manner.

Accordingly, the CO properly vacated the CO’s final determination and granted certification.

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Posted In: BALCA Decisions , Employment Based Immigration , PERM - Labor Certification

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It has come to our attention that many Permanent Labor Certification Applications are being denied by the Department of Labor (DOL) for several reasons, some of which could be avoided by having competent counsel.

It is important to have an Experienced Attorney who is familiar and thorough when completing and filing Permanent Labor Certification Applications. Many of the reasons for denial of labor certification are because of the failure to comply with Federal Regulations, failure to provide specific dates, misinterpreting statutory language, and the failure to comply with time period requirements.

When dealing with the complexity of Business Immigration Law it is recommended that you obtain the expertise of a skilled and knowledgeable Business Immigration Attorney, especially when dealing with the specificity of the PERM process.

Please contact the MVP Law Group today to discuss your Business Immigration needs.

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination
of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Chef.

In May of 2006, the CO issued an Audit Notification letter. The CO requested that the Employer submit its Notice of Filing, among other documents requested. The Employer responded by submitting two Job Postings. Subsequently, the CO denied the application in December of 2006 on several grounds. The majority of the deficiencies focused on the Notice of Filing. The CO provided that the Notice of Filing failed to (1) state that the Notice was being provided as a result of the filing of an application for permanent alien labor certification, (2) state that any person may provide documentary evidence bearing on the application to the CO, (3) provide the CO’s address, and (4) list the wage offered for the position. In January of 2007, the Employer requested reconsideration and review of the denial. The Employer put forth the argument that the requested documentation was submitted to the CO in the context of the audit, and therefore, only a substantial failure to provide documentation may justify a denial of the application. Subsequently, the CO issued a letter of reconsideration providing that the denial was proper under 20 C.F.R. 656.10(d). The CO then forwarded the case to BALCA. The Employer did submit an appellate brief in support of its position, stating that the standard of consideration of whether to deny an application is whether the Employer’s filings constituted substantial compliance with the requirements of the Code of Federal Regulations. The CO also filed a brief urging denial based on the importance of the Notice of Filing requirement and its contents.

Upon BALCA review, the language of the applicable Federal Regulation was analyzed. The regulation at 20 C.F.R. 656.10(d) provides that the Notice of Filing must (i) state the notice is being provide as a result of the filing of an application for permanent alien labor certification for the relevant job opportunity; (ii) state any person may provide documentary evidence bearing on the application to the CO of the Department of Labor (DOL); (iii) provide the address of the appropriate CO; and (iv) be provided between 30 and 180 days before filing the application. Additionally, if any application is filed under Sec. 656.17, the notice must contain the information required for advertisements by Sec. 656.17(f), must state the rate of pay (which must equal or exceed the prevailing wage entered by the SWA on the prevailing wage request form), and must contain the information required by paragraph (d)(3) of this section.

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination
of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Specialty Chef.

The Employer filed a LC on behalf of an alien worker and it was accepted for processing in September of 2005. In March of 2006, the CO denied the application because of numerous deficiencies. The appeal before the Board only addressed one of the deficiencies, the failure of the Employer to specify the expiration date of the State Workforce Agency (SWA) prevailing wage determination. The Employer’s original petition provided November 2003, as the determination date and stated “N/A” for the expiration date of the SWA prevailing wage determination. The CO’s denial letter addressed the issue concerning the absence of the expiration date. Thereafter, the Employer’s attorney filed a request for review. The Employer’s attorney provided answers for a number of the omissions and submitted additional documentation. In regards to the expiration date of the SWA prevailing wage determination, the Employer’s attorney stated 2004. Subsequently, the CO issued a letter of reconsideration in August of 2008. The CO found that the Employer’s attorney had successfully rebutted several of the deficiencies, but still affirmed the denial of certification based upon a number of reasons. The CO provided that the expiration date of the prevailing wage determination was an important piece of information that needed to be provided in a month, day and year format, consistent with the regulations. The CO then forwarded the case to BALCA. The Employer did not submit an appellate brief in support of its position, but the CO did file a brief urging denial based on the fact that the application was incomplete.

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Posted In: BALCA Decisions , Employment Based Immigration , PERM - Labor Certification

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Baker.

The Employer filed a LC on behalf of an alien worker and it was accepted for processing in February of 2006. The CO issued an Audit Notification letter in May of 2006. The CO requested that the Employer submit its Notice of Filing, and its recruitment documentation, among other documentation. In response, the Employer submitted a copy of an “Employment Notice” and copies of its newspaper advertisements for the job opportunity. In October of 2006, the CO then issued a denial letter. The CO stated that the newspaper advertisements were deficient because they did not include the Employer’s name, and the Notice of Filing did not include the appropriate address of the CO, or provide the wage offered for the position. Thereafter, the Employer filed a motion for review arguing that he complied with the regulations because the advertisements included the Employer’s personal office fax number. The Employer also argued that the case number and jurisdiction of the CO was included in the Notice of Filing. However, the Employer did not address the absence of the wage information, but attached a copy of the State Workforce Agency (SWA) wage determination. Subsequently, the CO issued a letter of reconsideration withdrawing the citation concerning the appropriate CO’s address, but found that the absence of the Employer’s name from the advertisements and the absence of the wage offer from the Notice of Filing remained valid grounds for denial of certification. The CO then forwarded the case to BALCA. The Employer did submit an appellate brief in support of its position and provided that the fax number included in the advertisements satisfied the regulatory requirements. The Employer also indicated that the wage offer was clearly provided in ETA Form 9089. Thereafter, the CO did filed a brief urging affirmation of the denial.

Upon BALCA review, it was determined that the regulation at 20 C.F.R. 656.17(f)(1) requires that the newspaper advertisement identify the Employer. The main reason behind the use of the Employer’s name in newspaper advertisements is to let applicants know what company is offering the job. The Board upheld the CO’s denial on this ground. Additionally, the regulation at 20 C.F.R. 656.10(d) requires an Employer to post a Notice of Filing of the permanent labor certification application. The Notice of Filing must state the rate of pay (which must equal or exceed the prevailing wage entered by the SWA on the prevailing wage request form.) The inclusion of the rate of pay in ETA Form 9089 did not cure the failure to include the rate of pay on the Notice of Filing. Accordingly, the Board affirmed the CO’s denial of certification on this ground.

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Posted In: BALCA Decisions , Employment Based Immigration , PERM - Labor Certification

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination
of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Framer.

The Employer filed a LC on behalf of an alien worker and it was accepted for processing in April of 2007. The Employer specified in the application that the position was not a professional occupation. The CO then denied the application on two grounds: the Employer failed to complete ETA Form 9089 by leaving multiple sections incomplete; the Employer used an Occupational Employment Statistics (OES) prevailing wage issued prior to March 8, 2005. Thereafter, the Employer’s owner sought a request for review. The Employer submitted information regarding the omitted sections, and attached a copy of a January 23, 2007 OES prevailing wage. Subsequently, the CO issued a letter of reconsideration accepting the Employer’s reasoning on three of the omissions, but found that the other five deficiencies were not cured by the information provided by the Employer. Specifically, the CO was requesting information concerning the State Workforce Agency (SWA) job order and the Sunday edition newspaper advertisements. For several of the selections, the Employer indicated NONE rather than filing in the specific dates required because the Alien was an “on-the-job-site hire.” The CO informed the Employer in the letter that under the regulations, a 30-day SWA job order is a mandatory recruitment step and the Employer is required to place two print advertisements in a Sunday edition newspaper. The CO then forwarded the case to BALCA. The Employer did not submit an appellate brief in support of its position, but stated that the alien was a very good employee and that he would like to keep him. The CO did file a brief urging affirmation of the denial.

Upon BALCA review, it was determined that the PERM regulations for a nonprofessional occupation require that the employer must at a minimum place a job order and two newspaper advertisements within six months of filing the application. The job order must be placed with the SWA serving the area of intended employment for a period of 30 days. Nothing in the regulations indicates that there is an “on-the-job-hire” exception to the mandatory recruitment steps. Accordingly, the CO correctly denied certification.

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Posted In: BALCA Decisions , Employment Based Immigration , PERM - Labor Certification

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Restaurant Manager.

The Employer filed a LC on behalf of an alien worker and it was accepted for processing in July of 2006. The Employer specified in the application that the position was not a professional occupation. The CO then denied the application because the application did not include any evidence that a job order was placed with the State Workforce Agency (SWA) serving the area of intended employment for a period of 30 days. Thereafter, the Employer sought reconsideration on the ground that it placed a new advertisement with the SWA from November 7, 2006 to December 8, 2006. Subsequently, the CO denied reconsideration explaining that a new job order placed after the application had been filed could only be used to support subsequent filings, not the application at issue. The CO then forwarded the case to BALCA. The Employer did not submit an appellate brief in support of its position, but the CO did file a brief urging affirmation of the denial.

Upon BALCA review, it was determined that the PERM regulations for a nonprofessional occupation require that the employer must at a minimum place a job order and two newspaper advertisements within six months of filing the application. The job order must be placed with the SWA serving the area of intended employment for a period of 30 days. In the present case, the Employer’s job order was placed from February 9, 2006 to March 9, 2006, a period less than 30 days. Accordingly, the Employer’s job order was not long enough in duration to satisfy the requirements.

In summary, the Employer filed another job order after receiving the denial determination which did not cure the defect. As explained by the CO and reiterated by the Board, the new job order could be used to support subsequent filings, but did not help to correct the defect in the present petition. Thus, the CO properly denied certification.

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Posted In: BALCA Decisions , Employment Based Immigration , PERM - Labor Certification

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Cook.

The CO denied the application in March of 2008 on one ground; the Employer had not filed its application or begun recruitment within the validity period of the State Workforce Agency (SWA) prevailing wage determination. Thereafter, the Employer filed a motion for reconsideration stating that the failure to place advertisements was an unintentional oversight, and that its overall efforts at recruitment were sufficient. The Employer attached an affidavit from the Employer’s owner reciting the difficulty in recruiting cooks for the restaurant. Subsequently, the CO denied reconsideration. The CO forwarded the case to BALCA. The Employer did not file an appellate brief, but the CO filed an appellate brief urging that its denial be affirmed by the Board. In the CO’s brief, it noted case law where a claim of clerical error as grounds of reversal was rejected because the employer had committed a substantive violation of the regulations.

Upon BALCA review, it was determined that the PERM regulations at 20 C.F.R. § 656.40(a) require that a petitioning employer obtain a prevailing wage determination from the SWA having jurisdiction over the proposed area of intended employed. The SWA specifies the validity date of the prevailing wage. When a SWA prevailing wage is used in support of an application, the petitioning employer MUST file their application(s) or begin the recruitment specified by the regulations within the validity period given by the SWA.

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The Board of Alien Labor Certification Appeals (BALCA) recently dismissed an appeal based upon the PERM audit regulations. A labor certification application was filed on behalf of an alien worker for the position of Domestic Servant. The CO issued a letter denying certification of the labor certification (LC) because the Employer failed to provide all evidence requested in the Audit Notification letter.

The employer, a private household filed a labor certification application on behalf of the alien worker in April of 2006. In December of 2006, the CO sent the Employer’s attorney an Audit Notification letter. The application was selected for audit to determine why the Alien resided with the Employer. The letter specifically requested documentation relating to the issue, and also requested the Recruitment Report and other documentation. In response, the Employer submitted an explanation as to why the alien lives with the household, and a copy of a tax return. Thereafter, the CO issued a letter denying certification. The CO attached a handwritten note to the letter stating that the recruitment report and advertisements were missing. A motion for reconsideration was filed by the Employer’s attorney in April of 2007. Support for the motion consisted of an explanation about miscommunication between the attorney and the employer, another copy of the tax return, newspaper advertisements, the CALJobs job order, and a prevailing wage determination. Subsequently, the CO issued a letter denying reconsideration because the Recruitment Report had not been provided. The CO forwarded the case to BALCA. The Employer did not file an appellate brief in support of his position on the issue, whereas the CO filed a letter brief arguing that the Recruitment Report is an essential requirement of the labor certification program.

Upon BALCA review, it was determined that PERM audit regulation at 20 C.F.R. § 656.20(a)(3) controls the issue on appeal. It provides that if the employer fails to provide documentation required to be submitted by the date specified in the audit letter, the application is automatically denied, the employer is considered to have refused to exhaust available administrative remedies, and administrative-judicial review before BALCA is not available. Thereafter, the Board determined that the Employer failed to timely submit the recruitment report as directed in the Audit Notification letter, and subsequently, according to regulations, the Board had no authority to further review the denial. Accordingly, the appeal was dismissed.

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Posted In: BALCA Decisions , Employment Based Immigration , PERM - Labor Certification

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Restaurant Cook.

The employer filed a LC on behalf of an alien worker in August of 2005. In November of 2005, the CO issued an Audit Notification because he was unable to verify the Employer as a bona fide business entity. The CO requested proof of the employer’s Federal Employer Identification Number (FEIN), among other documents. In response, counsel for the Employer submitted the FEIN of a different entity. Counsel stated that the reason the number has changed is because a new owner has taken over and is willing to continue sponsoring the Alien. Thereafter, the CO issued a letter denying certification on one ground, the FEIN supplied was not valid. The CO determined that the Employer did not have a valid FEIN at the time of filing, and that a new owner must file its own application. Subsequently, counsel for the Employer requested reconsideration addressing the same argument as he did previously. In May of 2008, the CO denied reconsideration by stating that the original sponsoring Employer no longer existed based on the Employer’s own statement, and on information the CO received from the California Secretary of State. The CO then forwarded the case to BALCA. The Employer did not submit an appellate brief, but the CO did file a letter brief arguing its reasons behind the denial for reconsideration.

Upon BALCA review, it was determined that the requirement in ETA Form 9089 requiring submission of a FEIN was fully supported by the regulations and by policy of using the FEIN as a means of verifying whether an employer is a bona fide business entity. BALCA reviewed case law surrounding the FEIN issue and found the following: (1) substitution of a Social Security Number (SSN) was not a substitute for a FEIN for a private household; and (2) obtaining a valid FEIN after being notified of the deficiency is not harmless error, it is failure to comply with the substantive requirement of possessing a valid FEIN prior to filing, hence a violation of the regulations. BALCA determined that where an application is deficient when filed because the sponsoring employer does not have a valid FEIN, the CO is not required to permit the application to be perfected based on a change in ownership. Accordingly, the CO properly denied certification.

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determinationof a Certifying Officer (CO) affirming the filing date for the approved PERM labor certification (LC). The application was filed on behalf of an alien worker for the position of Auto Mechanic.

The employer, an auto repair shop filed a pre-PERM application on behalf of the alien worker on April 25, 2001. The education requirement is what is at issue on appeal. The pre-PERM application stated a requirement of an eighth grade education. On November 4, 2005, the employer’s filed PERM application for the alien worker was accepted for processing. The PERM stated a requirement of a high school education. The CO thereafter granted certification and set the alien worker’s priority date, November 4, 2005. The letter did not include an explanation as to why the priority date was not that of the pre-PERM date accepted for processing, April 25, 2001. Former counsel for the employer wrote to the CO arguing that the priority date was in error and attached evidence of the pre-PERM acceptance date. A few months later, new counsel for the employer mailed a letter to the CO reiterating the same point addressed in former counsel’s letter. The CO denied reconsideration on the priority date issue in July of 2008. The CO explained that the earlier date was not assigned as the priority date for the application because the applications were not identical on the education requirement. The CO then addressed the argument the employer made in its letter. The employer argued that ETA Form 9089 does not provide an option for grade school, and the closest option was high school. The CO rebutted this argument by noting that there is an option on Form 9089 for other, which allows the employer to specify what is required in regards to education. The CO forwarded an Appeal File to BALCA. The employer did not submit an appellate brief addressing the issue; however, the CO did file a letter brief which supported the reasons behind its denial of the motion for reconsideration.

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Posted In: BALCA Decisions , Employment Based Immigration , PERM - Labor Certification

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Auto Mechanic.

The Employer filed a LC on behalf of the alien worker and it was accepted for processing in January of 2007. The Employer stated in the application that the job was a nonprofessional position. The Employer indicated that it had run the State Workforce Agency (SWA) job order from December 15, 2006 until January 17, 2007, and submitted the application by mail on January 22, 2007. Thereafter, the CO issued a denial letter. The CO based the denial in part on the SWA job order not being in compliance with the statutory regulations. In March of 2007, the Employer’s owner requested review arguing that the SWA job order was completed at least 30 days prior to submission of the application. Subsequently, the CO issued a letter of reconsideration. The CO stated that the Employer had misunderstood the regulatory requirement which requires that the job order end at least 30 days prior to the ETA Form 9089 filing date. The CO said the application must be denied because the end date of the job order, (January 17, 2007) was less than 30 days prior to the filing date (January 22, 2007). The CO then forwarded the case to the Board. The Employer did not submit an appellate brief in support of its position, whereas the CO did file an appellate brief urging affirmation of the denial.

Upon BALCA review, it was determined in accordance with 20 C.F.R. § 656.17(e) that the job order must have been completed at least 30 days, but no more than 180 days before filing of the application, and it must have been at least 30 days in duration. The Board agreed with the CO about the Employer’s misinterpretation of the statutory regulation, and held that it was clearly a violation of the regulations by filing the application less than 30 days after the SWA job order ended. The Board explained that the regulatory time requirement was designed to ensure that the Employer had sufficient time to receive resumes, make contact with any applicants, conduct interviews, and make decisions regarding any U.S. applicants who may have applied for the job opportunity in response to the recruitment effort. Accordingly, the CO properly denied certification.

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Posted In: BALCA Decisions , Employment Based Immigration , PERM - Labor Certification

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination
of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Horse Trainer.

The Employer submitted the application by mail. In the application, the Employer indicated that the job was first advertised in the New York Post on November 11, 2005 (three days, Friday, Saturday, Sunday) and the second advertisement was run on December 17, 2005 (three days, Saturday, Sunday, Monday). The CO had the mailed in application re-keyboarded, and the new version only stated 11/11/2005 and 12/17/2005 as the first and second dates that the advertisements were run. Subsequently, in November of 2006, the CO issued a denial letter on two grounds. The first reason related to the dates of the placement of a State Workforce Agency (SWA) job order, and the other reason related to whether the position was advertised in a Sunday edition of a newspaper of general circulation. Thereafter, the Employer filed a motion for reconsideration. The Employer submitted tear sheets establishing that a Sunday advertisement was run in the New York Post on November 13, 2005 and on December 18, 2005. In June of 2008, the CO denied reconsideration providing that the tear sheets revealed that the advertisements did not name the Employer, did not indicate the geographic area of employment, and did not contain a wage rate at least equal to the prevailing wage. Thus, the CO declared that the denial was valid because the employer had not provided evidence that it placed a qualifying advertisement meeting all regulatory requirements. The CO then forwarded the case to the Board. Counsel for the Employer did not file an appellate brief to address the problems the CO identified in regards to the advertisements, whereas the CO did file an appellate brief detailing the applicable statutory regulation and the Employer’s alleged violation.

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Posted In: BALCA Decisions , Employment Based Immigration , PERM - Labor Certification

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Domestic Tutor. This LC was filed prior to the effective date of the “PERM” regulations.

The employer, a private household filed a LC on behalf of an alien worker in June of 2004. The requirements for the position were a high school education, four years of training as a domestic, and four years of experience in the job offered. In May of 2007, the CO issued a Notice of Findings (NOF) proposing to deny certification due to numerous defects in the application. First, the Director found that the job requirements were unduly restrictive in violation of the regulations, and as such were in excess of the requirements listed in the Dictionary of Occupational Titles (DOT). The DOT lists a specific vocational preparation (SVP) for this job as “over one month and up to three months” of combined education, training and experience. The CO instructed that this issue could be rebutted by one of two ways: (1) establish a business necessity for the job requirement, or (2) reduce the requirements to the DOT standard. Additionally, the CO determined that the documentation provided did not establish that the alien worker had the four years of training and four years of experience in the job prior to being hired. The CO provided that the employer could rebut this finding by: (1) documenting that the alien worker had the required training and experience at the time of hire; (2) submitting evidence that it is not presently feasible due to business necessity to hire a worker with less than the qualifications presently required for the job opportunity and demonstrate that the job as currently described existed before the alien was hired, or (3) amending or deleting the requirement. Another defect noted in the NOF was that the Employer had not documented that the alien worker had one year of full time experience performing the duties of the job offered in a domestic household as required by the regulations. The CO provided that this defect too could be rebutted by submitting specific information. Lastly, the CO identified that the wage offered in the application was $9.00 per hour, which was below the prevailing wage of $13.34 per hour. The CO informed the employer this defect could also be rebutted by: (1) amending the application and increasing the salary offer to at least 100% of the prevailing wage, or (2) submit alternative wage data. In its rebuttal, the employer stated that there was business necessity, that overwhelming evidence had been submitted to establish that the alien had the requisite experience at the time of hire, and amended the application to increase the salary to $14.00 per hour.

The CO stated that the Employer’s rebuttal evidence corrected the prevailing wage defect, but the Employer’s rebuttal was not sufficient to correct the other three deficiencies in the application. Thereafter, the CO issued its final determination denying certification because the Employer did not correct all deficiencies in its labor application. Subsequently, the employer requested BALCA review.

The regulations require that an employer must document that its requirements for the job opportunity are those normally required for the successful performance of the job in the United States. Where the employer cannot document that the job requirement is normal for the occupation or that it is included in the DOT, the employer must establish business necessity for the requirement. The Employer indicated that the job requirements arose from a business necessity, however; the employer failed to submit any documentation to verify its statements. Upon BALCA review, it was determined that the Employer did not establish business necessity for the training and experience requirements in excess of those set forth in the DOT. The Employer stated that they would amend the application to rebut the findings of the Director, however; only the wage section of the application had been amended. In summary, the Employer did not submit any documentation on rebuttal to cure the defects noted by the CO. Thus, the CO properly denied certification.

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Posted In: BALCA Decisions , Employment Based Immigration , PERM - Labor Certification

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The Board of Alien Labor Certification Appeals (BALCA) recently reversed the final determination
of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Plumber Helper.

The employer, a plumbing services company filed a LC on behalf of an alien worker in April of 2001. The application got caught up in the large number of pre-PERM backlog cases, and as a result the employer did not receive the Recruitment Instructions letter until February of 2007. The letter directed the employer to advertise the offered position in a newspaper of general circulation. The Employer placed an ad in the Houston Northwest Greensheet for the requisite period of time, and also placed an advertisement for the position online. In August of 2007, the director issued a Notice of Findings (NOF) to the employer indicating that the employer must submit proof of advertisement or the application would be denied. In September, the employer submitted a notarized proof receipt indicating that the employer had run the advertisement in the Greensheet. Thereafter, the CO issued its final determination denying certification because the Greensheet did not meet the definition of a newspaper of general circulation. Subsequently, the employer requested BALCA review. The employer indicated in its request that (1) it has used the Greensheet before for advertising purposes and forms were never returned or questioned, and (2) it asked to be permitted to re-advertise if the Greensheet was determined inadequate.

Upon BALCA review, it was determined that the employer was denied an adequate opportunity to timely submit evidence on the issue of whether the Greensheet was a newspaper of general circulation. The employer was not informed of the inadequacy of the newspaper until the director’s final determination. Accordingly, it is the certifying officer’s duty to state the specifics upon which the decision to issue the NOF was made. If the reasons for the denial are not made clear, it cannot rebut with sufficiency nor can it attempt to cure any deficiency. Upon review of the NOF, BALCA determined that it only suggested that the employer submit proof of advertisement to rebut. The CO made it clear in its final determination letter that the newspaper did not meet the regulation requirements, but by that time, it was too late for the employer to submit evidence to rebut the conclusion. Thus, BALCA determined that the NOF was rebutted, and therefore certification should be granted. Accordingly, the final determination of the CO was reversed and the labor certification thereafter granted.

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Posted In: BALCA Decisions , Employment Based Immigration

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Manager/Video Technician. This LC was filed prior to the effective date of the “PERM” regulations.

The employer, a video parlor and equipment retailer filed a LC on behalf of an alien worker in April of 2001. The requirements for the position included the attainment of a high school education and two years of experience in the job offered. In January of 2007, the CO issued a Notice of Findings (NOF) proposing to deny certification because the alien did not appear to possess the requisite experience prior to his hire. The NOF gave the employer several options to rebut its findings: (1) show that the Alien had the qualifications now required at the time of hire; (2) submit evidence that the alien obtained the required experience working for the employer in jobs not similar to the position for which labor certification was sought; (3) provide documentation that it was not feasible to hire a worker with less than the qualifications required for the position; or (4) delete the requirement. In its rebuttal, the employer argued that it was not presently feasible to hire an employee with less than the qualifications presently required due to business necessity. The employer further contended that there had been a change in the workforce of the company and it was not possible to provide the same training to a new employee. Thereafter, the CO issued its final determination denying certification because the employer’s infeasibility to train argument was not persuasive. Subsequently, the employer requested BALCA review.

Upon BALCA review, an employer must demonstrate that the requirements it specifies for the job are its actual minimum requirements and that it has not hired the alien or other workers with less training or experience for jobs similar to the one offered. Accordingly, one way to avoid a denial is to show that it is not now feasible to hire workers with less training or experience than that required of the position. Where the alien gained the required experience with the employer, infeasibility must be documented – a mere statement is insufficient. In the instant case, the only documentation of infeasibility was the employer’s owner’s rebuttal statement with no collaborating documentation. Thus, the CO properly denied certification.

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Dispatcher. This LC was filed prior to the effective date of the “PERM” regulations.

The employer, a limousine company filed a LC on behalf of the alien worker in March of 2005. The employer described the job position and requirements in the application as: coordinate schedules of limousines; report disruption to service using radiotelephone, and inspect mechanical malfunctions of vehicles along route and direct repair. Additionally, the employer required four years of experience for the position offered. In March of 2007, the CO issued a Notice of Findings (NOF) proposing to deny certification since the experience requirement exceeded the Specific Vocational Preparation (SVP) for the job as set forth in the Dictionary of Occupational Titles (DOT). The DOT listed the experience for the position as “over 1 year and up to 2 years” for Dispatchers, Except Police, Fire and Ambulance. The CO concluded that the job opportunity included an unduly restrictive job requirement in violation of the regulations. The CO provided three ways in which the employer could rebut its findings: submit evidence that the requirement arises from a business necessity; or show that the job requirement bears a reasonable relationship to the occupation in the context of the employer’s business and is essential to perform the job duties described by the employer, and that the job as currently described existed before the alien was hired; or reduce the requirements to the DOT standard. On rebuttal, the employer submitted no evidence in regards to what the CO had requested. The employer argued that the occupational title of Traffic Inspector – Dispatcher with an SVP of two to four years more closely matched the duties listed in the application. The employer based his argument on the similarities of the job duties. Thereafter, the CO issued its final determination denying certification. The CO found that the Employer’s rebuttal was a request to re-code the position to Traffic Inspector-Dispatcher, and the CO declined to approve that request. Subsequently, the Employer requested BALCA review.

Upon BALCA review, it was determined that where the employer cannot document that the job requirement is normal for the occupation or that it is included in the DOT, the employer must establish business necessity for the requirement. The basis of the employer’s argument was that the job opportunity should have been coded as Traffic Inspector-Dispatcher which has a SVP 7 or two to four years of experience. The job requires coordinating the schedules of streetcars, buses, or railway transportation systems, and includes negotiations with local governmental personnel to eliminate hazards. However, the CO concluded that the position was that of Dispatcher which more closely resembled the job duties listed within the application for labor certification. Upon review of the three job descriptions, the Board agreed with the CO that the proper job code for the occupation in the application is that of Dispatcher.

Additionally, according to the regulations, an employer’s rebuttal evidence must rebut all of the findings in the NOF and that all findings not rebutted shall be deemed admitted. The Employer did not rebut the CO’s findings set forth in the NOF.

Accordingly, the CO properly denied labor certification .

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Accountant. This LC was filed prior to the effective date of the “PERM” regulations.

The employer filed a LC on behalf of an alien worker in July of 2004. In the spring of 2006, the employer submitted its recruitment results indicating that nineteen resumes were received: some candidates did not have the requisite degree/experience, two candidates were found to be overqualified, and several other candidates were either unwilling to take the job or did not respond to contacts by the employer. Thereafter, in August of 2007, the CO issued a Notice of Findings (NOF) proposing to deny certification on the basis of the rejection of U.S. workers for other than lawful, job-related reasons. The CO found that the Employer had placed telephone calls to U.S. applicants and some of these were unsuccessful. The CO requested documentation of attempts to contact the referred applicants in a timely manner, and suggested that such documentation could include evidence such as certified mail receipts, itemized telephone bills or other documentation of timely contact which would establish good faith recruitment. The CO stated that failure to provide lawful, job-related reasons for their rejection was a violation of Federal regulations. The employer submitted its rebuttal arguing that it did contact the U.S. applicants, and asserting that it was in the process of obtaining its telephone bills. Additionally, the employer argued that their rejection of the candidates was consistent with normal business practices of the industry and its own normal practice. The CO did not accept the Employer’s argument regarding good faith recruitment, noting that placing unanswered telephone class without making additional attempts to contact U.S. applicants did not constitute good faith recruitment. Thereafter, the CO issued its final determination denying certification for the same grounds contained in the NOF. Subsequently, the Employer requested BALCA review.

Upon BALCA review, it was determined that both of the grounds cited by the CO for denying certification were supported by BALCA caselaw. First, an employer who does no more than make unanswered phone calls or leave a message on an answering machine has not made a reasonable effort to contact the U.S. worker, where the addresses were available for applicants; in such a case the employer should follow up with a letter – which may be certified mail, return receipt requested. Second, the Employer rejected at least two applicants as overqualified. The Board has repeatedly ruled that an employer who is recruiting pursuant to a labor certification application may not reject an applicant solely because that applicant is overqualified.

Accordingly, the CO properly denied labor certification .

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of heavy equipment operator. This LC was filed prior to the effective date of the “PERM” regulations.

The employer, a residential home construction company filed a LC on behalf of an alien worker in April of 2001. In January 2006, the CO issued a Notice of Findings (NOF) proposing to deny certification on the ground that two U.S. applicants were unlawfully rejected in direct violation of the regulations. In the submitted recruitment report there were several findings at issue. First, the employer left a phone message for one applicant that was never returned, and an email was sent to a second applicant, and thus returned because it was inoperable. The employer did not follow up with alternative attempts, such as written correspondence. In summary, the CO stated that an employer who does no more than place unanswered telephone calls without making additional attempts has failed to make a minimally acceptable effort. In response, the employer stated that if an applicant does not return a telephone call for a high paying position, then it can be reasonably inferred the applicant is no longer interested in the position. Additionally, the employer contended that he is not required by the regulations to send certified mail notices or other written communication to an applicant that it has tried in good faith to contact for an interview. Thereafter, the CO issued its final determination denying certification for the same grounds contained in the NOF. Subsequently, the Employer requested BALCA review.

Upon BALCA review, it was determined that an employer must show that U.S. applicants were rejected solely for lawful job related reasons. An employer must take steps to ensure that it has obtained lawful job-related reasons for rejecting U.S. applicants, and not stop short of fully investigating an applicant’s qualifications. According to the Board’s case law, an employer who does no more than make unanswered phone calls or leaves messages on answering machines has not made a reasonable effort to contact the U.S. worker, where the addresses were available for applicants; in such a case the employer should follow up with a latter – which may be certified mail, return receipt requested. The Board further pointed out that what may be considered adequate recruitment by an employer for hiring is not necessarily adequate to establish good faith efforts to recruit U.S. workers for the purposes of supporting a labor certification application.

Accordingly, the employer took a minimalist approach to recruitment. In doing so, it failed to document that it made good faith efforts to recruit all of the U.S. applicants. Thus, the CO properly denied certification.

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Landscaper”. This LC was filed prior to the effective date of the “PERM” regulations.

The employer filed a LC on behalf of an alien worker in December 2001. In November 2006, the CO issued a Notice of Findings (NOF) proposing to deny certification. The regulations at 20 C.F.R. § 656.3 define employment as permanent, full-time work by an employee for an employer other than oneself. Generally, the work of a landscaper is only performed during certain seasons of the year. The CO needed more information to determine whether the position required full-time, year round work. The CO asked the employer to provide payroll records for December to Mach for the last three years to establish that the position of landscaper was performed on a year-round basis. The Employer submitted its weekly payroll records for the Alien and two other employees. The Employer’s attorney argued that the employees perform their jobs year-round on a continuous basis working in the months of December, January, February, and March. The CO issued its Final Determination denying certification in June 2007. Simply stated, the CO found that the employer failed to provide evidence to establish that the position was performed on a year-round basis. The Employer’s payroll records for the last three years showed that the Alien and the other two employees regularly worked less than 35 hours in a given week during the winter months. The Employer stated that the future position will perform 40 hours per week during the winter months. Accordingly, the evidence submitted was not sufficient to establish that the position constituted permanent, full-time, year-round employment as defined by the regulations. Subsequently, the Employer requested BALCA review.

Upon BALCA review, the Board relied upon case law and held that a landscaper position for which duties can only be performed during several months per year cannot be considered permanent employment for the purposes of labor certification. The Board considered this arrangement seasonal employment. The Board found that the employees averaged between 23 and 26 hours a week from December through February in the 03’/04’ season, 04’/05’ season and 05’/06’ season. Although the Employer argued that the offer for future employment will be 40 hours each week year-round, the evidence submitted did not support such a finding. The Employer did not provide any additional documentation to establish that the position was permanent and full-time. Accordingly, the Board agreed with the CO that the position was for seasonal employment and as a result, the labor certification was properly denied.

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “landscaper”. This LC was filed prior to the effective date of the “PERM” regulations.

The employer filed a LC on behalf of an alien worker in April of 2002. In March 2007, the CO issued a Notice of Findings (NOF) proposing to deny certification. The regulations at 20 C.F.R. § 656.3 define employment as permanent, full-time work by an employee for an employer other than oneself. Generally, the work of a landscaper is only performed during certain seasons of the year. The CO needed more information to determine whether the position required full-time, year round work. The CO asked the employer to provide payroll records for December to Mach for the last three years to establish that the position of landscaper was performed on a year-round basis. The Employer submitted its Quarterly Federal Tax Returns for 2005 and 2006 as evidence of permanent, full-time employment. The CO issued its Final Determination denying certification in August 2007. Simply stated, the CO found that the employer failed to provide evidence to establish that the position was performed on a year-round basis. The Employer’s Quarterly Tax Returns did not show the number of hours each individual worked each week. Subsequently, the Employer requested BALCA review.

Upon BALCA review, the Board relied upon case law and held that a landscape gardener position for which duties can only be performed during several months per year cannot be considered permanent employment for the purposes of labor certification. The Board considered this arrangement seasonal employment. Therefore, the employer has the burden to prove that the position is permanent and full-time. The employer failed to produce evidence that would show that the position was in fact permanent, full-time employment. The Employer’s failure to submit the documentation reasonably requested by the CO warranted a denial of labor certification. The Board held that while the employer’s quarterly reports established that the business is open year-round; they did not establish that the position was for permanent, full-time year-round employment. Accordingly, the employer failed to meet its burden and as a result, the labor certification was properly denied.

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The Board of Alien Labor Certification Appeals (BALCA) recently vacated the final determination
of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Secondary Mathematics Teacher,” and remanded the case for regular processing and supervised recruitment. This LC was filed prior to the effective date of the “PERM” regulations.

In the aforementioned case, the employer, a state charter school filed a LC on behalf of an alien worker in April of 2004. In a letter submitted with the application for LC, the Employer requested that the application be handled under the provisions for Reduction in Recruitment (RIR). In August 2007, the CO issued a Notice of Findings (NOF) proposing to deny certification. The CO concluded that the Employer did not make a bona fide, good faith effort to recruit U.S. workers for the job offered because the Employer made no attempt to contact any of the job applicants but, rather, rejected all applicants without adequately investigating their qualifications. The CO stated that the Employer could rebut its findings if (1) it submitted documentation that showed that U.S. workers were rejected for lawful, job related reasons; and (2) a recruitment report detailing the number of workers who responded to the recruitment, the manner of contact, the number of workers who were interviewed, and information regarding those interviews. Additionally, the CO noted that at the time of filing the application, the Employer was “delinquent” according to the Wisconsin Secretary of State’s public website, and that good standing was not restored until January 2005. The CO equated the delinquency to mean that the Employer had not yet legally restored his qualification to legally conduct business in the State of Wisconsin. On rebuttal, the Employer submitted documentation which established the requirement to hire teachers with valid licenses or permits. In addition, the Employer submitted an affidavit from the Director of the school further indicating that the applicants in question were not qualified for the position. The Employer also provided copies of letters and emails that were sent to the otherwise qualified U.S. workers in August 2007 to determine if they were still interested in the job opportunity. Also, the Employer submitted documentation indicating that “delinquent” status is not an assessment of the entity’s financial condition, stability, or business practice, but an indication of the entity’s status in regards to filing annual reports. In September 2007, the CO issued a Final Determination denying certification. The grounds for denial were: (1) neither applicant for the position had been contact by the Employer back when the recruitment took place in 2004; (2) the affidavit was not credible because it testified to information about which he did not have first hand knowledge; (3) the Employer’s attempt to contact the applicants three years after recruitment was not sufficient; and (4) the information from the Wisconsin Department of Financial Institutions was insufficient to establish that the Employer had the legal authority to transact business in the State of Wisconsin. In summary, the Employer had not address the deficiencies in the NOF, and therefore the CO denied the application for LC. Subsequently, the Employer requested BALCA review.

Upon BALCA review, the Board determined that what is missing from the record is an explanation from the CO as to why a company’s temporary delinquent status in filing annual state reports is fatal to a LC application. Therefore, the Board stated that it declined to fault the Employer for failing to rebut an unwarranted assumption raised in the NOF. Additionally, upon review it was determined that when a resume does not expressly state qualifications for all of an employer’s job requirements, but lists such a broad range of experience that there is a reasonable possibility the applicant may meet the job requirements, it is incumbent on the Employer to further investigate the U.S. applicant’s qualifications, either through an interview or by other means. As to the affidavit, the Board stated that bare assertions by an employer are not sufficient to carry the burden of demonstrating good faith recruitment.

This case was before the CO in the posture of a request for RIR processing, and when a CO normally denies an RIR, such a denial should result in the referral of the application for regular processing and supervised recruitment. Accordingly, the Board remanded the LC to the CO for regular processing and supervised recruitment.

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Landscape Gardener.” This LC was filed prior to the effective date of the “PERM” regulations.

In the aforementioned case, the employer, a nursery filed a LC on behalf of an alien worker in April of 2001. In a letter submitted with the application, the Employer requested the application be handled under the special provisions for Reduction in Recruitment (RIR) processing. In May 2006, the CO issued a Notice of Findings (NOF) proposing to deny certification. The NOF provided that the regulations at 20 C.F.R. § 656.3 define “employment” as permanent full-time work by an employee for an employer other than oneself. Additionally, the NOF stated that the work of a landscape gardener is generally performed during certain seasons or periods of the year and not others. Lastly, the NOF stated that there was insufficient information to determine whether the Alien would perform the work on a full-time basis. The NOF requested that the Employer submit payroll records for the last three years to establish that the job duties are permanent full-time employment. On rebuttal, the Employer submitted payroll records for the last three years and argued that the payroll records establish a long-term commitment because despite the winter hiatus, everyone returns for re-employment in the spring. The Employer also plead that in continuously warm climates, landscaping is considered permanent, full-time year round work. The Employer argued that they should not wait for Congress to pass new legislation on this issue, and recommended a modification of the existing case law. In September 2007, the CO issued a final determination denying certification. The CO noted that the Employer’s pay roll records for the last three years did not show any pay for the first quarter of each year for the months of January, February and March. Therefore, the Employer’s rebuttal failed to establish employment on a year-round basis. Subsequently, the Employer requested BALCA review.

Upon BALCA review, existing case law holds that a landscape gardener position for which duties can only be performed during approximately nine to ten months per year cannot be considered permanent employment for the purposes of labor certification. Rather, the employment should be considered seasonal. The fact that employees return the following year bears no relevance on the final determination, as the re-employment of the same employees does not cure the defect. As such, the position is seasonal and labor certification was properly denied.

This case was before the CO in the posture of a request for RIR processing, and when a CO normally denies an RIR, such a denial should result in the referral of the application for regular processing. However, case law holds that a remand for supervised recruitment is not mandated if the reasons for the denial cannot be cured by a supervised recruitment. Accordingly, since the Employer has not established that the application was for permanent full-time employment, remand for supervised recruitment is not warranted. The CO properly denied labor certification .

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Heavy Equipment Operator.” This LC was filed prior to the effective date of the “PERM” regulations.

In the aforementioned case, the employer, a contractor providing commercial site preparation services filed a LC on behalf of an alien worker in April of 2001. In March 2006, the CO issued a Notice of Findings (NOF) proposing to deny certification. The CO noted that the employer did not document that its requirements for the job opportunity, represented the Employer’s actual minimum requirements for the job opportunity in violation of Section 656.21(b)(5). Additionally, the CO concluded that based on the recruitment report, the Employer had screened and rejected U.S. workers for the lack of qualifications not stated in the ETA 750A form or the advertisements. There were 10 additional qualifications not mentioned in ETA 750A or the advertisements for the position which the Employer used to reject otherwise qualified U.S. workers. The Alien had been hired without these qualifications and allowed to gain the required experience now required of U.S. applicants. The CO provided three ways in which the employer could rebut its findings: (1) submit evidence showing the alien had the qualifications at the time of hire; (2) submit evidence of business necessity; or (3) delete the requirements. The CO concluded that the Employer had not established lawful job-related reasons for rejecting the otherwise qualified U.S. workers. In response, the Employer submitted a rebuttal to the NOF. Thereafter, the CO issued a final determination in April 2007, denying certification because the Employer’s rebuttal was not sufficient to correct the deficiencies noted in the NOF. Subsequently, the Employer requested BALCA review.

Upon BALCA review, 20 C.F.R. § 656.21 (b)(5) provides: The employer shall document that its requirements for the job opportunity, as described, represent the employer’s actual minimum requirements for the job opportunity, and the employer has not hired workers with less training or experience for jobs similar to that involved in the job opportunity or that is not feasible to hire workers with less training or experience than that required by the employer’s job offer. Therefore, an employer cannot require more stringent qualifications of a U.S. worker than it requires of the alien. Thus, the employer is not allowed to treat the alien more favorably than it would a U.S. worker. An employer must establish that the alien possesses the stated minimum requirements for the position that is being offered. There is no documentation on record, which establishes that the alien had the additional qualifications required for the position. An employer’s unsupported statement that the alien meets its minimum requirements does not constitute adequate documentation that the alien meets those requirements. Since the alien’s prior experience is not documented, the record does not establish that the Alien was hired with the experience now being required of U.S. applicants. Therefore, the U.S. applicants who were rejected for their lack of an experience, which was not required of the Alien were not rejected for lawful job related reasons.

Accordingly, the Employer failed to fulfill its burden to provide evidence that the Alien had the requisite experience required for the position at the time he was hired by the Employer. The regulation at 20 C.F.R. § 656.21 (b)(5) provides that when an alien does not meet the employer’s stated job requirements, certification is properly denied.

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the Final Determination
of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “tailor – textile, apparel & furnishing worker.” This LC was filed prior to the effective date of the “PERM” regulations.

In the aforementioned case, the employer, a warehouse filed a LC on behalf of an alien worker in April of 2001. In December 2001, the employer requested conversion to “reduction in recruitment” processing by letter and attached a new ETA 750A Form. In July 2005, the Philadelphia Backlog Processing Center sent a letter to the employer requesting a response to whether or not the employer wished to continue to pursue the application. Counsel for the employer responded indicating that it wished to continue processing the application, and that a new attorney was entering an appearance on behalf of the Employer and the Alien because their previous attorney was no longer practicing law. New counsel submitted both the original ETA 750-A and B forms and new ETA 750A and B forms because the originals were not of high quality and included several omissions or incomplete answers. Subsequently in September 2006, the CO issued a Notice of Findings (NOF). The NOF indicated that the previous attorney who represented the employer and the alien had been suspended from practicing law, and therefore requested the Employer to indicate whether it wish to withdraw the application, remove the attorney and continue without representation or identify a new representative and continue with processing. Additionally, the CO indicated that additional information was required to determine if the application represented a bona fide job opportunity open to qualified U.S. workers. Specifically, nine items of documentation were listed. The ninth item stated, “If you are represented by new counsel, please submit an updated G-28 form. Please note that representation by new counsel does not cure the above finding. The CO emphasized that the information requested must be provided in order to rebut the NOF. The NOF was addressed and mailed to the previous attorney rather than the employer’s new counsel. In the rebuttal, the Employer argued that the NOF was inconsistent with the July 2005 letter. Thereafter, the CO issued a final determination denying the application because the employer failed to provide the information requested in the NOF. The Employer requested BALCA review.

Upon BALCA review, it was determined that an employer’s failure to produce documentation reasonably requested by the CO will result in a denial of labor certification. An employer has the burden to satisfactorily respond or rebut to all findings in the NOF. In the instant case, the CO issued the NOF proposing to deny certification based on the fact that the previous attorney had represented the petitioning employer. Previous counsel’s involvement raised the question of whether the application presented bona fide employment. The NOF clearly indicated that the fact that an employer might obtain new counsel would not be considered a sufficient rebuttal to the NOF. While the NOF erroneously failed to acknowledge the fact that the Employer had obtained new counsel, it clearly gave the Employer notice of the basis upon which the decision to issue the NOF was made. The NOF specifically indicated the additional information that the CO sought to make its final determination on the application.

Accordingly, since the employer did not submit all the information requested, the CO’s findings are deemed admitted. Since the Employer did not submit the requested documentation on rebuttal to establish a bona fide job opportunity exists, a remand for supervised recruitment is not warranted.

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Ethnic Singer/Entertainer.” This LC was filed prior to the effective date of the “PERM” regulations.

In the aforementioned case, the employer, a restaurant/nightclub filed a LC on behalf of an alien worker in April of 2001. In June 2006, the CO issued a Notice of Findings (NOF) proposing to deny certification on the basis that the job was not full-time. Accordingly, the position could not be considered permanent because it did not involve full-time work during the entire year. The CO provided the employer with specific instructions in the NOF to rebut the findings. Specifically, the CO requested evidence that the position as performed in the employer’s establishment constitutes full-time employment as required by the regulations, evidence such as a daily/weekly/ work schedule, and proof that the job was previously filled by an incumbent on a full-time basis before the alien was hired, etc and proof of recruitment efforts. In its rebuttal, the Employer provided the performance schedule of the alien, contending that the position was a full-time position, and provided the CO with the recruitment report. The Employer also suggested that since the Department of Labor (DOL) had previously approved a similar petition, accordingly, this petition should be approved. Subsequently, the CO issued a Final Determination denying certification. The CO stated that the NOF had clearly identified two violations: the employer’s failure to demonstrate that the petition was full-time employment as required by the regulations, and that the Employer had not engaged in adequate recruitment efforts. The CO determined that the Employer had rebutted the second violation by providing the recruitment report; however, the Employer did not successfully rebut the first violation. The CO further explained that an employer’s failure to produce documentation that is requested by the CO and that has a direct bearing on the resolution of an issue, is a ground for denial of certification. Thereafter, the Employer requested BALCA review.

Upon BALCA review, it was determined that the employer has the burden of demonstrating that it meets the definition of employer and that the position that is offered is both permanent and full-time as required under the regulations. The Board’s caselaw provides that if an employer offers, for example, only a 25 hour a week work week, then section 656.3 may be properly cited by the CO as a ground for denying labor certification. In the instant case, the Employer only offered 20 hours of work per week. Additionally, the Employer failed to provide all of the documentation that was reasonably requested by the CO in the NOF.

The CO correctly determined that the Employer failed to establish that the position constitutes full-time employment. Accordingly, labor certification was properly denied.

*In support of its request for review of the Final Determination, the Employer submitted an amended proposed performance scheduled to reflect additional hours. The Board, however, does not have the authority to consider evidence that is first submitted with the employer’s request for BALCA review or with the brief on appeal.

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Operations Foreman.” This LC was filed prior to the effective date of the “PERM” regulations.

In the aforementioned case, the employer, a metals distributor filed a LC on behalf of an alien worker in April of 2001. The LC was denied on three grounds. First, the Employer did not recruit in good faith because it had only tried to contact applicants by telephone, and had not attempted the alternative of writing to those applicants. The CO found that the Employer’s rebuttal response, which was an offer to re-advertise, was not a remedy for lack of good faith in recruitment. The CO also denied the LC based on the Employer’s rejection of U.S. applicants for lacking experience not specified as a job requirement in the ETA Form 750A, and its failure to establish that the Alien had such experience prior to being hired by the Employer. Thereafter, the Employer requested BALCA review.

Upon BALCA review, it was determined that an employer must take steps to ensure that it has obtained lawful job-related reasons for rejecting U.S. applicants, and did not stop short of fully investigating an applicant’s qualifications. Pursuant to 20 C.F.R. § 656.21(b)(6), an employer must show that U.S. applicants were rejected solely for lawful job related reasons. Case law provides that although the regulations do not explicitly state a “good faith” requirement in regards to post-filing recruitment, such a good faith requirement is implicit. The Board’s case law states that an employer who does no more than make unanswered phone calls or leaves a message on an answering machine has not made a reasonable effort to contact the U.S. worker. In such a case, the employer should follow up with a letter.

A look at case law reveals that a CO is not required to permit an employer to re-advertise where the citation is grounded in a lack of good faith recruitment. Due to the fact that the CO was not obligated to permit the Employer to re-advertise to cure a lack of good faith recruitment efforts, the Board affirmed the denial of certification.

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The Board of Alien Labor Certification Appeals (BALCA) recently vacated the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Fabric and Apparel Patternmaker.” This LC was filed prior to the effective date of the “PERM” regulations.

In the aforementioned case, the employer, a garment manufacturer and wholesaler filed a LC on behalf of an alien worker in February of 2003. In the application, the employer required two years of experience in the job offered. In the Notice of Findings (“NOF”) issued in June 2007, the CO found that the Employer’s advertisement did not meet the criteria for certification because the advertisement did not state the minimum job requirements that appeared on Form ETA 750, Part A. On the LC, the job requirements included two years of experience with no formal education required. Whereas, the advertisement; however, listed the requirements for the job as “2 years exp/AA degree.” The CO stated that it was unduly restrictive to advertise for job requirements in excess of those that were specified on the original LC. To respond to the NOF, the CO stated that the Employer was required to provide a copy of the advertisement and internal posting notice that was placed during the 30 day recruitment period. Additionally, the CO stated that the advertisement must reflect the same job requirements that were stated by the Employer on ETA Form 750-A. In response to the NOF, the Employer submitted a rebuttal which explained that the additional education requirement was a clerical error made at the Employer’s law firm. To rectify the mistake, the Employer drafted another advertisement and ran the new advertisement for three days in June of 2007. Subsequently, the CO issued a Final Determination in July of 2007. In the Final Determination the CO found that the Employer’s rebuttal evidence did not correct the deficiencies raised in the NOF. Specifically, the Employer re-advertised without permission or obtaining further instructions. Thereafter, the matter was referred to BALCA for review. In its request for review, the Employer argued that the NOF did not state that permission to re-advertise was required, nor did it state when or how to obtain permission to re-advertise.

Upon BALCA review, pursuant to the regulations at 20 C.F.R. § 656.25(c), if a CO does not grant certification, an NOF must be issued which states: (1) the date on which the NOF was issued; (2) the specific grounds for issuing the NOF; and (3) the date by which a rebuttal must be made. Specifically, the NOF must give notice which is adequate to provide the employer an opportunity to rebut or cure the alleged defects. An adequate notice of deficiencies should identify the section or subsection allegedly violated, the nature of the violation, the evidence supporting the challenge, and instructions for rebutting or curing the violation.

From the record, it was clear that the NOF listed the sections allegedly violated, the nature of the violation, and the evidence supporting the challenge. However, the NOF included only one set of instructions for rebutting the violation – to submit evidence contradicting the findings. In this case, the Employer admitted that the alleged violation had occurred. The problem is that the NOF did not include any instructions for curing the violation if the Employer agreed such a violation had occurred. The Board’s caselaw, permits an error in recruitment to be cured, if appropriate, by re-advertisement during the rebuttal period.

Accordingly, the Board found that the Employer’s re-advertisement as submitted in its rebuttal evidence establishes the Employer’s intention to correct the advertisement deficiencies noted in the NOF. Due to these circumstances, the Final Determination was wrongly issued by the CO in that it failed to include instructions on how to re-advertise. The Board stated that the CO should have issued a second NOF clarifying what actions the Employer could take to cure the admitted defects.

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

In the aforementioned case, the employer, a private household filed a LC on behalf of an alien worker. The employer mailed the Application for Permanent Employment Certification to the Chicago Processing Center. The CO accepted the application for processing on October 24, 2006, and then re-keyed the application into the Department of Labor’s ETA electronic system. Weeks later the CO wrote a letter to the employer that denied the employer access to submit a Form 9089 electronically until the employer submitted proof of a Federal Employer Identification Number (FEIN), proof of a business entity, and proof of a physical location. Subsequently, the CO issued a letter denying certification. The reason for denial was that the employer could not be verified as a bonafide entity. In requesting reconsideration, the Employer asserted that the denial was vague, pointed out that it was a private household and not a company, but ultimately failed to identify how it was verified as a bonafide entity. The employer submitted a passport and her most recent tax return and further argued that neither her nor her legal counsel were ever contacted regarding verification of the employer’s existence. After reviewing the request, the CO denied reconsideration. The CO stated that providing a Social Security number was not a valid substitute for a FEIN. The matter was referred to BALCA for review. In the employer’s brief, she based her argument on a denial of due process.

Upon BALCA review, it was determined that the regulations require the submission of a FEIN on ETA Form 9089 because the FEIN is used to verify whether an employer is a bona fide entity. The PERM regulations at 20 C.F.R. § 656.3 require that an employer possess a valid Federal Employer Identification Number (FEIN) whether they are a private household or a legitimate company. Case law further provides that the use of a social security number as a substitute for a FEIN is prohibited because the Internal Revenue Service (IRS) clearly requires employers to possess a FEIN in order to file tax forms for domestic household employees.

The employer asserted that she was denied due process; however, under the PERM regulations, an employer is given an opportunity to file for reconsideration. In issuing a denial to an employer, the CO shall identify the section or subsection allegedly violated, and the nature of the violation. In this case, the CO’s original denial letter was deficient because it failed to state that the employer needed to provide a FEIN to be verified as a bonafide entity. The CO’s letter had the potential to deny the Employer’s due process rights. However, the CO’s failure to describe the nature of the violation did not prevent the employer from obtaining a labor certification that should have been granted. The only evidence that the employer could have provided for the case to swing in its favor was evidence that the employer had a FEIN at the time she applied for labor certification.

From the record, it was clear that the employer did not possess a FEIN as she used her social security number as a substitute. As stated above, a FEIN is required even for domestic households. In this case, the employer’s failure to obtain a FEIN prior to filing for labor certification rendered her application deficient as a matter of law. Accordingly, although the CO’s original determination letter was deficient, the employer could not be deprived of something to which she was never entitled. The Board recommended that the employer obtain a FEIN and file a new application.

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Posted In: BALCA Decisions , PERM - Labor Certification

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Chinese Specialty Cook.”

In the aforementioned case, the employer filed a LC on behalf of an alien worker. The significant facts of the case were: the alien signed the application on November 19, 2005; the employer’s attorney signed the application on December 13, 2005; the employer’s president signed the application on December 3, 2006; and the employer ran advertisements in a newspaper of general circulation on May 7, 2006 and May 14, 2006, and all of these facts were indicated within the application for labor certification. The CO denied certification because the advertisements used for recruitment did not occur within the requisite timeframe. The PERM regulations clearly state that advertisements for recruitment must occur at least 30 days, but no more than 180 days, prior to the date the application was filed.

The CO received request for reconsideration from the employer’s attorney. In response, the employer’s attorney submitted evidence indicating that advertisements were run in a newspaper and a journal for three consecutive days in June of 2005. Additionally, the employer’s attorney mistakenly had filed the labor application with the State Workforce Agency rather than directly with a federal Certifying Officer, and had to re-file with the latter. The employer’s attorney confessed error in the timing of the advertisements, but urged that they did in fact advertise, and did not receive any responses. The employer’s attorney alleged that the error was procedural. After reviewing the request, the CO denied reconsideration. The employer requested BALCA review.

Upon BALCA review, it was determined that the new rules of PERM were applicable to the present case. The PERM regulations require that ETA form 9089 be utilized rather than ETA form 750, and that applications be filed directly with a federal Certifying Officer rather than a State Workforce Agency. The employer had applied for certification for a non-professional position. Under the regulations, for a non-professional position, the employer must, at a minimum, place a job order and two newspaper advertisements within 6 months of filing the application. Unfortunately, the employer’s motion for reconsideration did not remedy the timing problem with the advertisements. Moreover, regardless of whether the employer’s advertisements were run in May 2005, June 2005 or would be run in May 2006, none of those dates fit within the requisite timeframe in support of a labor certification application filed under PERM. Additionally, the employer’s attorney requested equitable relief for its error in filing the pre-PERM application rather than the PERM application. BALCA denied equitable relief as the facts surrounding the case did not present a compelling case for the application of equitable relief. Accordingly, BALCA affirmed the final determination of the CO in denying certification for not complying with the new advertising rules for PERM.

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Posted In: BALCA Decisions , PERM - Labor Certification

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The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the PERM filing date and vacated the Certifying Officer's (CO) denial of the application.

The employer, an independent school district filed a pre-PERM ETA form 750A application for permanent alien labor certification on October 24, 2004 for the position of Middle School Teacher. The work location was East Houston Intermediate School and the job description involved the language “teach middle school students…” Subsequently, on January 11, 2006, the employer filed a ETA form 9089 under PERM for the same Alien for the position of Elementary School Teacher. The work location for this application was Hilliard Elementary School, and the job description involved the language “teach elementary school students…” On the ETA form 9089, the employer indicated that it was seeking to utilize the filing date from the pre-PERM application, the date of October 24, 2004. Thereafter, the employer received a letter from the Dallas Backlog Elimination Center (BEC) in reference to the pre-PERM application. The BEC gave the employer several options to pursue. The employer responded by withdrawing 20 pre-PERM application, one of which was the present application, because applications had also been filed under PERM and were pending. In January, the following year, the employer received a letter granting certification on the PERM application. The date of acceptance was that of the newly filed PERM application, January 11, 2006. The employer requested that the CO reconsider the earlier pre-PERM application filing date. A request for additional information was issued to the employer, and the employer promptly replied. The CO subsequently denied the motion because the job descriptions, job titles, and job locations in the ETA form 750A and form 9089 were not identical. Regulations require that job descriptions be identical in order for the employer to retain the filing date from an earlier pending pre-PERM application. The CO forwarded the matter to BALCA for review.

Upon BALCA review, it was determined that the CO’s letter denying reconsideration stating that the application had been denied was clearly in error, and that there had been no intent to de-certify the application, leaving the remaining issue of whether the CO correctly determined the filing date for the PERM application.

The regulation at 20 C.F.R. § 656.17(d) clearly supports the CO’s decision not to retain the pre-PERM filing date. The regulation provides that employers who have filed applications prior to March 28, 2005, may…re-file such applications…without loss of the original filing date by: (i) submitting an application for an identical job opportunity…, (ii) withdrawing the original application…, and (iii) re-filing within 210 days of withdrawal of original application. To be clear, the regulations state that a job opportunity shall be considered identical if the employer, alien, job title, job location, job requirements and job description are the same as those stated in the original application. In this case, the employer had a different job title, job location and job description for each application that was submitted on behalf of the alien worker. Since the employer did not address the fact that the job location had changed in the motion for reconsideration, BALCA determined that for that reason alone, the CO was correct in finding that the applications were not identical. Although the job titles and descriptions may have been similar, they were not identical; the regulations require them to be identical in order to grant the request of the employer.

Accordingly, BALCA affirmed the determination of the CO that the filing date shall be the date that the PERM application was accepted for processing, January 11, 2006.

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Posted In: BALCA Decisions , PERM - Labor Certification

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination
of a Certifying Office (CO) denying labor certification (LC) for an alien worker for the position of “Home Health Aide.”

In the aforementioned case, the employer, a private household filed a LC on behalf of an alien worker. The CO denied certification of the application on four grounds. The PERM regulations require that employers file completed applications for Permanent Employment Certification. The employer failed to make selections for the following questions on the ETA Form 9089: Section C-6 (Year commenced business); C-7 (Employer FEIN); F-3 (Skill level); and K-5 (Job 3 title). Subsequently, the Employer filed a request for reconsideration. In requesting reconsideration, the Employer asserted that she completed Sections C-6 and C-7 and no further information or explanation was given. After reviewing the request, the CO denied reconsideration. The CO stated that the employer’s request for reconsideration did not overcome all deficiencies noted in the determination letter. The employer requested BALCA review.

Upon BALCA review, it was determined that the employer offered an incomplete ETA Form 9089. The PERM regulations at 20 C.F.R. § 656.17(a) require that an “employer who desires to apply for a labor certification on behalf of an alien must file a complete Department of Labor Application for Permanent Employment Certification form (ETA Form 9089). Further, the regulations state that “incomplete applications will be denied.” In this case, the omissions on ETA Form 9089 were material and the employer failed to correct them by offering documentation in her request for reconsideration to establish compliance with the regulations. The Employer clearly failed to obtain a Federal Employer Identification Number (FEIN) and to complete Sections F-4 and K-5 of the application. Accordingly, BALCA affirmed the final determination of the CO in denying certification for not submitting a completed application for labor certification.

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Posted In: BALCA Decisions , PERM - Labor Certification

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The Board of Alien Labor Certification Appeals (BALCA) recently vacated the final determination of a Certifying Office (CO) denying labor certification for an alien worker for the position of “Reverend,” and remanded the case for further proceedings.

In the aforementioned case, the employer filed an application for labor certification on behalf of a foreign alien to fill the position of Reverend. The CO notified the employer that it needed to provide the prevailing wage for the position or its equivalent. In response to the notification, the employer stated a rate of pay of $8.00 per hour. Thereafter, the CO sent the Employer a document entitled “Recruitment Instructions.” The instructions informed the employer that the prevailing wage was $11.79 for the job and that the employer should advertise the job at that particular rate of pay to obey regulations. Subsequently, the employer placed newspaper advertisements illustrating that the rate of pay was $8.00 per hour. When the recruitment report was submitted to the CO, there was no explanation to indicate why the employer had used the $8.00 rate of pay. The CO issued a Notice of Findings (NOF) proposing to deny certification because the $11.79 prevailing wage had not been used in the Employer’s advertisement. The CO further explained to the employer that to rebut the NOF, it must provide a copy of an advertisement and an internal posting placed during the recruitment period, and the advertisement must reflect the prevailing wage provided in the Recruitment Instructions letter. In response, the employer re-submitted its earlier advertisement and did not further discuss the reason for using the $8.00 rate of pay. The CO issued a final determination denying certification because the advertisement had stated a wage of $8.00 per hour. The employer requested BALCA review arguing that it complied with the CO’s instructions for advertising; however, it never mentioned nor explained the reason for running advertisements with the $8.00 wage rate rather than the $11.79 prevailing wage.

Upon BALCA review, the regulation at 20 C.F.R. § 656.20 (c)(2) provides guidance and requires that an employer offer a wage that equals or exceeds the prevailing wage. According to case law, where an employer is notified that its wage offer is below the prevailing wage, but fails to either raise the wage to the prevailing wage or justify the lower wage it is offering, certification is properly denied. An employer seeking to challenge the prevailing wage bears the burden of establishing both that the CO’s determination is in error and that the employer’s wage offer is at or above the correct prevailing wage. It is the responsibility of the CO to provide the employer with adequate notice of its burden on rebuttal. Upon further review, BALCA determined that the employer, who was pro se – was not given adequate notice of its burden. Specifically, the CO had informed the employer of the option to use a lower wage if it could document that the lower wage was appropriate; however, the NOF only gave the employer the option to produce an advertisement establishing that the $11.79 rate was issued. It did not give the employer the option of rebutting by documenting that a lower wage was appropriate. This failure to correctly state the Employer’s burden of proof necessitates a remand for issuance of a new NOF. The new NOF will provide the employer with an option to establish through documentation that its wage offer was appropriate for the proffered position. Accordingly, BALCA vacated the final determination of the CO in denying certification and remanded the case for further proceedings.

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Posted In: BALCA Decisions , Employment Based Immigration , PERM - Labor Certification

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The Board of Alien Labor Certification Appeals (BALCA) affirmed the final determination of the Certifying Officer (CO) denying a labor certification application because the employer’s rebuttal was insufficient to establish a lawful related reason for rejecting U.S. workers.

In the aforementioned case, the employer, a telecommunications company, filed an application for labor certification on behalf of an alien worker for the position of Information Technology Director. The only job requirement listed on Form ETA 750A was a Bachelor’s degree in Electrical Engineering, no additional training or experience were listed. Additionally, the job was advertised as only requiring a Bachelor’s degree in Electrical Engineering. Subsequently, the Certifying Officer (CO) issued a Notice of Findings (NOF) to the employer proposing to deny certification. The employer rejected three U.S. applicants for grounds not stated in ETA 750A. The reason for rejection was insufficient knowledge of Telecommunications, Prepaid Phone Card Systems and the technology involved including TDM and Voip Protocols, Dialogic boards, Parity Software Vos and Visual FoxPro programming; however, the only job requirement listed on ETA 750A was a Bachelor’s degree in Electrical Engineering. The second ground for certification denial was that it appeared that the Alien was hired without possessing these specialized requirements. In response to the NOF, the employer filed a rebuttal letter providing information as to the alien’s qualifications for the proffered position but failed to address the rejection of the three U.S. workers. Thereafter the CO issued a final determination denying certification because the employer failed to provide reason for its unlawful rejection of U.S. workers. The employer then filed a request for BALCA review.

Upon review, BALCA relied upon the regulations set forth in Section 656.25(e) which provide that the employer’s rebuttal evidence must rebut all of the findings in the NOF and that all findings not rebutted shall be deemed admitted. Accordingly, the CO’s finding which is not addressed in the rebuttal is deemed admitted. The regulations also provide that if U.S. workers have applied for the position, the employer must document that they were rejected solely for lawful job-related reasons. BALCA relied upon case law and stated that a labor certification is properly denied where an employer unlawfully rejects workers who meet stated minimum education and experience requirements, and if the employer has specific requirements, they should be specified in the application. In the instant case, the employer contended that the knowledge it was requiring was implicit in the nature of the job offered. BALCA responded to the employer’s argument by stating that lack of knowledge of telecommunications is too vague and generic to provide a meaningful objective basis for rejection of applications. Further, the lack of knowledge of prepaid phone card systems, in contrast, is a very specific requirement; however, the employer omitted any argument about this particular requirement. The burden of proof lies with the employer, and it was the employer’s responsibility to document why its knowledge requirements were so fundamental to the position that they did not need to be listed as requirements on the ETA 750A. Therefore, BALCA conceded the final determination of the CO and affirmed the denial of the labor certification.

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The Board of Alien Labor Certification Applications (BALCA) recently affirmed the final determination of the Certifying Officer (CO) denying labor certification.

In the present case, the petitioner (employer), a plumbing and compacting installation service filed an application for labor certification for the position of Plumber on behalf of a foreign alien beneficiary. Following recruitment, the employer filed a recruitment report in which it rejected five U.S. applicants. Only two of the applicants’ qualifications are questioned on appeal. According to the recruitment report, Applicant 1 was rejected because his resume indicated that he did not possess any U.S. experience as a plumber, and the employer thereafter assumed that he/she obviously had no knowledge of state and city plumbing codes, a job requirement for the proffered position. Applicant 2 was rejected because the applicant’s experience as a Plumber dated from the period of 1978 to 1984, after which he/she only worked as a Supervisor to several plumbers and helpers. The Employer stated that they desired the services of a raw plumber not a supervisor.

After thorough review of the documentation presented with the application for labor certification, the CO issued a Notice of Findings (NOF) proposing to deny certification. The CO noted that the employer unlawfully rejected applicants 1 and 2 based on resumes alone. With Applicant 1, it was not altogether established that he/she was not familiar with applicable New York (NY) plumbing codes and specifications and an interview would have clearly established the Applicant’s qualifications for the proffered position. The 2nd Applicant was rejected solely because he was overqualified according to his resume. In response to the NOF, the employer filed a rebuttal letter indicating why Applicants 1 and 2 were not further interviewed. The employer argued that the first applicants resume did not indicate any plumbing experience in NY, and there was no reason to assume that his home improvement experience in NY involved any plumbing. Accordingly, under those circumstances, the employer felt that he was not obliged to interview the applicant. In regards to Applicant 2, the Employer relied upon the applicant’s present occupation and stated that no one willing regresses in their career; therefore the applicant cannot be considered to be willing to be available and willing for the job of raw plumber. Thereafter, the CO issued a final determination denying certification. The CO indicated that the relevant standard in determining whether a resume merits further investigation is whether or not there is a reasonable possibility that an applicant may meet the employer’s minimum requirements despite an apparent shortcoming on the applicant’s resume.

Upon BALCA review of the record, it was determined that the resumes of Applicants 1 and 2 raised the reasonable prospect that they were capable of performing the job offered. Accordingly, the employer had the duty to interview the applicants or verify their qualifications in some other manner other than just making assumptions based on their resumes. Since the employer rejected the applicants without interviewing them or otherwise verifying their qualifications or lack thereof, the CO properly denied certification. The burden of proof was with the employer, although the employer attempted to shift the burden to the CO, the employer was unable to satisfy the burden and accordingly the certification was denied.

Posted by Meetesh V. Patel | Permalink | Email This Post

Posted In: BALCA Decisions , PERM - Labor Certification

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The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Office (CO) denying labor certification for an alien worker for the position of “Day Worker.”

In the aforementioned case, the Labor Certification (LC) was filed by the employer, a private household, on behalf of an alien worker in April 2001. In January 2007, a Notice of Findings (NOF) letter was issued by the CO requesting additional evidence for proof that a bona fide job opportunity actually existed at the residence and documentation that the employer had the ability to pay the actual wages offered. In response to the NOF letter, the employer submitted a copy of a utility bill showing a residential address for the employer, and thus did not provide any other documentation. The CO issued a final determination in August 2007 denying the LC. The CO concluded that the utility bill verified the employer’s residential address, but found that the response to the NOF was deficient because it did not address the ability of the employer to pay the Alien’s salary. Thereafter, the employer’s attorney requested BALCA review and attached his own letter to the request. The attorney suggested that the CO failed to take into consideration that the LC was for a domestic position in a private home, and thus all the boilerplate language in the NOF did not apply in the particular situation. The employer’s attorney requested that denial be reversed and that labor certification be granted.

Upon BALCA review, the board relied on 20 C.F.R § 656.20(c)(1) which specifically states that an application for labor certification must clearly show that an employer has sufficient funds available to pay the salary of the alien worker. This requirement is the same whether the position is in a private home or within a Fortune 500 company. Additionally, a CO may make reasonable requests of the employer to provide evidence of such, and failure to comply with those requests alone constitutes grounds for denial of certification. BALCA reviewed the NOF letter finding that it expressly stated that if the employee is to be employed in a private home, the employer should provide its most recent household Federal income tax return along with a utility bill in its name. BALCA further stated that it may have been reasonable for the employer not to submit some of the documentation requested in the NOF which was not applicable to a private home; however, to ignore the request entirely was unreasonable. Accordingly, BALCA affirmed the final determination of the CO denying the labor certification because the employer failed to produce documentation that would evidence its ability to pay the Alien’s salary.

The MVP Law Group, P.A. strongly encourages its clients and others to fully comply with all NOF requests issued by COs of the Department of Labor (DOL). Specifically, if the documentation requested in an NOF does not apply to your situation indicate why it does not apply on a separate sheet of paper. It is not wise nor recommended that you ignore requests for additional documentation from the DOL as failure to respond constitutes grounds for denial of certification in itself.

Posted by Meetesh V. Patel | Permalink | Email This Post

Posted In: BALCA Decisions , Employment Based Immigration , PERM - Labor Certification

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