BALCA on Single Advertisements for Multiple Jobs Opportunities

August 18, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Marketing Manager.”

Upon evaluating an Employer’s Application for Permanent Labor Certification, the CO ordered the Employer to present copies of its recruitment efforts. The Employer provided a copy of its notice of filing, job order with the Washington State Workforce Agency (SWA), as well as newspaper ads placed in the Seattle Times. In addition, they submitted a copy of the company’s recruitment report.

After reviewing the recruitment data, the CO denied Certification because he believed it violated PERM regulation 20 CFR 656.17(f)(6), which provides that additional language not found on the ETA Form 9089 exceeds the job requirements for the position. The CO stated the Employer’s Notice of Filing (NOF), SWA job order, newspaper advertisements and web advertisements all listed “may require employer-reimbursed travel.” The phrase was not listed on the Employer’s 9089 form.

The Employer sent a reconsideration request to the CO. In the argument, the Employer declared that its NOF, SWA job order, newspaper advertisements and web advertisements were used to hire for many positions. Some of these positions did require travel while others did not. The Employer argued that the phrase “may require employer-reimbursed travel” does not create an obligatory travel condition for all of its job openings. They strongly believed that its hiring practices complied with the Department of Labor’s regulations on advertising for multiple positions. The DOL had previously provided that the language “some positions may require travel” may be utilized for recruitment covering multiple positions when some of those positions have no travel requirement.

Upon reconsideration of the employer’s arguments, the CO confirmed his denial of the labor certification. The CO thought the use of “open-ended” terms such as “may require travel” could be interpreted as a compulsory job requirement for applicants. The CO stated that the whole reason for SWA job orders, as well as the additional recruitment efforts, is to test the labor market. If any advertising is placed for the job(s), it may not contain any job requirements or language that is not listed on the ETA 9089 Form. The CO forwarded the case to BALCA for further examination. In the CO’s statement of position, he referred to the Employer’s lack of clarity in the advertisements - the Employer did not distinguish which Marketing Managers require travel and which ones do not.

After BALCA’s examination of the case, they reversed the CO’s decision. The BALCA board believed that the Employer’s NOF, SWA job order and advertisements did not include a job requirement that surpassed the one recorded on the ETA Form 9089. They found that the phrase “may require employer-reimbursed travel” was indistinguishable from the DOL-endorsed phrase “some positions may require travel.” BALCA stated it was obvious from the advertisements that “not all of the Marketing and Product Manager positions required travel.” The board did not think any of the advertisements were misleading and would prevent any US job applicant from applying for the positions.

BALCA En Banc Panel Says Proof of Job Order Publication Is Not Required

August 4, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Tile Setter.”

After obtaining & examining an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification ordering the Employer to submit copies of its State Workforce Agency (SWA) job order. This included a copy of the job order placed with the SWA serving the area of intended employment downloaded from the SWA Internet job listing site, a copy of the job order provided by the SWA, or other proof of publication from the SWA containing the content of the job order. The Employer replied to the Audit by providing a photocopy of a completed “Employer Job Order Information Sheet” from VaEmploy.Com.

The CO denied the labor certification citing the Employer’s failure to provide proof of publication of the job order from the SWA containing the content of the job order. He believed the copy of the VaEmploy.Com sheet did not indicate the ultimate content of the SWA job order. In addition, the CO thought the “Order Information” sheet did not prove the SWA published the job order. He cited PERM regulation 20CFR 656.20(b) as the governing source of his denial. PERM regulations require “an employer filing for permanent labor certification to place a job order with the State Workforce Agency (SWA) serving the area of intended employment” for a period of 30 days.

The Employer requested a reconsideration of the denial arguing that the PERM regulations establish that the SWA job order is verified by the start and end date as listed on the labor certification application. In order to try to obtain evidence of the placement of the SWA job order, the Employer contacted the Virginia SWA. They were sent an e-mail response from an SWA representative stating that the older job orders were deleted out of the database. The Employer included a copy of this e-mail in its reconsideration request.

Once again, the CO denied labor certification and forwarded the case to BALCA for its own review of the case. Upon review, BALCA confirmed the denial because the Employer neglected to present the mandatory documentation demanded by the CO in his Audit Notification. BALCA believed that the Employer needed to give an actual copy of the SWA job order.

The Employer was not satisfied with BALCA’s decision and requested “en banc review” of the case. They argued that they completely fulfilled all of the PERM regulations obligations. The Employer cited another panel decision, the “Mandy Donuts Corp” case. This case was very similar to the Employer’s. In the “Mandy Donut’s” case, the panel overturned a CO’s decision to deny a labor certification on the basis of an Employer’s failure to provide proof of an SWA job order. The Panel cited that PERM regulations only entail placement of a SWA job order for 30 days. This placement must be verified by the opening and closing dates on the labor application.

In order to help resolve this case, BALCA invited members of the American Immigration Lawyers Association (AILA) and the American Immigration Council (AIC) to contribute to the review. All parties filed briefs with their interpretations of the case. The CO thought the “Mandy Donuts” decision was not relevant to the case. He reiterated his stance that the Employer needed to provide an actual copy with the content of the SWA job order. AILA filed a brief in response to the case. They believed that the Employment & Training Administration (ETA) comments about regulations, during the ruling, indicate the Employer is not required to submit the actual (SWA) job order. Since specific documentation is not listed in the regulations, the CO should not “deny certification for failure to submit a copy of the job order.”

After listening to all of the briefs and arguments in this case, BALCA reversed the CO’s denial of permanent labor certification. BALCA believed that the PERM regulations do not insist on employers providing evidence of an SWA job order. Specifically, the PERM regulations require: Placing a job order with the SWA serving the area of intended employment for a period of 30 days. The start and end dates of the job order entered on the application serve as documentation of this step. 20 C.F.R. § 656.17(e)(2)(i).

BALCA on Definition of College or University Teacher

July 29, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Instructional Coordinator.”

After reviewing an Employer’s Application for Permanent Labor Certification, the CO denied the application, without audit or a request for additional information, stating that the position did not qualify as a college or university teacher. The CO considered the Instructional Coordinator position as a professional occupation for which the Employer was required to conduct additional mandatory recruitment efforts.

The Employer sent a reconsideration request to the CO. In its argument, the Employer reaffirmed that the position was a university instructor. They submitted additional documentation to support their claim. They provided a detailed description of the position covering the job duties and experience qualifications. This description mentioned “effective teaching in the library instruction program.” The second piece of evidence included a memorandum from the Dean of the University Libraries. In his memorandum, the Dean summarized the Applicant’s position as a Faculty Member in the Division of Library Services, discussed the Applicant’s responsibilities as an Assistant Professor and referred to the Applicant as “an excellent classroom teacher providing effective, creative and critical learning experiences for our students.”

*These two pieces of evidence were allowed for consideration, under § 656.24(g)(2)(ii) because they existed at the time of filing, and were maintained to support the application. The CO had not previously given the Employer an opportunity to present these documents as evidence, so the Employer properly submitted them in its request for reconsideration.

The CO forwarded the case to BALCA for review stating the additional evidence did not change his decision. He stressed that the job duties were not those involved in “teaching, evaluating and advising students within an assigned instructor workload in a classroom setting.” The CO’s statements were not supported by any documentation. Regulation § 656.18 does not define “college and university teachers,” nor does it refer to any required principal duties or job description.

After BALCA’s assessment of the case, the Labor application was sent back to the CO for processing. The Board believed that the Employer presented enough information to illustrate that the “Instructional Coordinator” position was that of a university professor under PERM regulations § 656.18.

BALCA Vacates Denial Notwithstanding Incomplete ETA 9089

July 25, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Medical & Clinical Laboratory Technologist”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification demanding the employee’s work credentials. The Employer sent the worker’s qualifications including prior work experience from his former employer to the CO for review.

Upon review of the Audit response, the CO denied the Labor Certification Application. The CO believed the credentials recorded on the application did not match the position’s minimum job requirements. The Employer sent a reconsideration request to the CO. In the argument, the Employer stated that the employee had the required two years of previous work experience, and included again for the record, documentation of the beneficiary’s previous work experience. Additionally, since the company opened in 1998, they had not hired anyone with less than two years’ experience for this position.

Once again, the CO denied certification because the Employer did not list the employee’s qualifying experience on the Labor application. The CO forwarded the case to BALCA for review requesting confirmation of his rejection.

After BALCA’s examination of the case, the administrative judge sent the case back to the CO for processing. The Board believed that the CO declined to study all of the Employer’s documentation prior to reaching his decision to deny. Even though the Employer did not include the entire employee’s prior work experience in the Labor Application, BALCA took into consideration the evidence submitted in the Audit & reconsideration responses. This evidence clearly indicated the employee’s qualifications exceeded the minimum requirements for the position.

BALCA Rejects CO’s Strict Specifications for Ad Copies

July 17, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Home Health Care Aide”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. He asked the employer to provide more information about their print advertising for the job.

The CO denied the application declaring that the Employer failed to deliver sufficient documentation for the mandatory print advertisements. The Employer did not provide copies of the advertisement that contained both the name of the newspaper as well as the date of publication, He cited the Employer was in violation of PERM regulation 20 C.F.R. 656.17(e)(1)(i)(B)(3) and 656.17(e)(2)(ii)(C).

PERM regulation 20 C.F.R. 656.17 (e)(2)(ii) requires that the newspaper advertisements must be placed on two separate Sundays. This is to ensure US workers can be provided the opportunity to apply for these positions.

The Employer requested BALCA review proclaiming that it submitted proper evidence in its Audit Response. The Employer submitted two pages of newspaper copies in its audit response. One of the pages shows the advertising text and the other page displays the name of the newspaper and the date. The Employer also presented screen shots from the newspaper’s online web page.

After BALCA’s examination of the case, the case was sent back to the CO for further examination. Even though the advertising content does not seem to fulfill the PERM regulations at 656.17 (f), they believed the copies of the newspaper pages as well as the screenshots satisfied the obligation for the recruitment phase. The Board gave the CO “instructions to consider whether the content of the Employer’s newspaper advertisement satisfies the requirements of 656.17(f).” This PERM regulation expects the newspaper ad to contain the name of the employer, location & a specific description of the job. The Employer’s ad did not name the employer, location or provide a detailed description of the position.

BALCA Reverses Denial, Finds Nexus between Ads and Position on ETA 9089

July 2, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently reversed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Business Development Specialist.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied certification because the job title recorded in the two newspaper advertisements communicated the job title as “Business Development VP” as an alternative to “Business Development Specialist.” The CO thought this inconsistency was an infringement of PERM regulations 20 C.F.R. § 656.10 and 20 C.F.R. § 656.17(f)(3).

PERM regulation 20 C.F.R. § 656.10(c) (8) requires the petitioning employer to demonstrate that the job has been visibly accessible to any U.S. worker. The PERM regulation § 656.17(f)(3) requires any print advertisement to specifically detail the job requirements in order to give US workers the chance to apply for the position.

The Employer requested reconsideration of the denial arguing that the job titles were significantly the same. They believed that any job hunter would have clearly understood the posting. The Employer stated the term “VP” is regularly used in job listings because it is more enticing than the word “Specialist.” By using the word “VP”, the Employer believed they would get more candidates to apply for the position.

Upon reconsideration of the employer’s arguments, the CO confirmed his denial of the labor certification. In a letter, he stated the job headings in the ads were drastically distinctive from the headings in the Labor Certification Application. The Employer requested BALCA review of the CO’s denial repeating the same information that they listed in the reconsideration.

In each of the CO’s denials, he did not analyze the Employer’s claims. Even though the Employer made logical arguments, the CO believed the job titles were distinct and it was the end of the story. He did not seem to want to hear the Employer’s opinions.

After a review of the case, BALCA sided with the Employer. They thought the job titles in the advertisements did not unfairly take away job opportunities for US workers. Denial of labor certification in this matter was reversed and the Labor application given back to the CO for certification.

BALCA Says Wall Street Journal Is a Newspaper of General Circulation

June 24, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Producer.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. It required the Employer to show proof of the State Workforce Agency’s (SWA) job order as well as all resumes received in connection with the position. The Employer responded and the CO continued to review the application.

The CO denied the application based on two different PERM regulations. PERM regulation 20 C.F.R. 656.17 (e)(1)(i) requires that “two print advertisements are mandatory for all applications involving professional occupations.” These advertisements must run on two different Sundays in the area of intended employment. The Employer placed the ad for the Producer position in the Wall Street Journal (WSJ), which does not qualify as a professional journal, and could not be used in lieu of the mandatory Sunday advertisements as required by the PERM regulations, because the ad was not run on a Sunday. Furthermore, the CO indicated in his denial that the employee did not meet the minimum requirements of the position. He cited PERM regulation 20 C.F.R. 656.17(i)(1).

After the denial, the Employer requested review of the case. The Employer believed the US Department of Labor had unselectively concluded the WSJ did not meet the requirements of a professional journal. In addition, they tried to use an expert’s opinion of the paper as evidence. With regards to PERM regulation 20 C.F.R. 656.17(i)(1), the Employer believed that his Employee “more than exceeds the requirements of the position.”

The CO forwarded the appeal to BALCA for review of the case arguing that the WSJ was only a general circulation newspaper. Since the paper has a widespread circulation beyond the professional market as well as other sections including news, politics and editorials, it clearly demonstrates the characteristics of any other broad-spectrum distribution newspaper. BALCA ordered the denial of labor certification.

BALCA on Text of Radio Advertisements

June 18, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Literary & Media Specialist”.

The CO denied the application stating that the Employer failed to provide sufficient documentation of a radio advertisement. He cited it was in violation of PERM regulation 20 C.F.R. 656.17(e)(1)(ii)(J).

PERM regulation 20 C.F.R. 656.17(e)(1)(ii)(J) expects employers to provide a copy of an advertisement as well as a written confirmation from the radio or television station stating when the ad was aired.

The Employer requested a review of the CO’s denial stating that they submitted a complete CD audio recording of the actual on-air advertisement. The CD was clearly labeled with the date of the ad as well as the title “Radio Proof” and the Company’s Name. In addition, the employer supplied an advertiser’s tear sheet that showed the ads were aired on two separate time frames on WAXQ-FM. Both the CD and the tear sheet reflected the name of the Employer and the Advertising agency. The Employer also presented the radio ad’s invoice which indicated the name of the radio station, advertiser, company name and the exact same number of radio spots as the tear sheet.

The CO forwarded the appeal to BALCA for review of the case by arguing that the Employer did not submit the actual advertising text.

Upon examination of the case, BALCA believed “the audio recording provided of the ad text is by definition a copy of the employer’s text.” They could not find reason not to accept it as sufficient documentation under PERM Regulation 656.17(e)(1)(ii)(J).

BALCA returned the application to the CO with instructions to certify it.

BALCA Reverses Denial, Finding 3 out of 4 Recruitment Steps in Compliance

June 10, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Battery Engineer.”

The CO denied the application stating that the Employer’s web posting did not identify the job location. He cited it was in violation of PERM regulation 20 C.F.R. 656.17(f). PERM regulation 20 C.F.R. 656.17 (f) requires that an advertisement must indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.

The Employer requested a review of the CO’s denial stating that the company conducted four additional recruitment steps rather than just the three that are required. In the recruitment process, they posted the position on a job search website, advertised in a local newspaper, advertised through their employee referral program, and posted the job position on their company website.

The Employer argued the location of the employment could be found on their website and they had only one geographic location. As proof, the Employer presented documentation to show that its location was completely revealed on its “Contact Us” page.

The CO forwarded the appeal to BALCA for review of the case. Upon review, it was ordered that “the denial of labor certification in this matter be reversed & remanded for certification.” BALCA cited the following reason for its decision. “Even though the Employer’s advertisement on its own website did not comply with the regulations, the Employer conducted three additional recruitment steps that are in compliance.”

BALCA Reaffirms Zero Tolerance for Failing to Submit “Required Documentation”

June 3, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Senior Commissioning Engineer.”

After obtaining & examining an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification ordering the Employer to submit “a copy of the Prevailing Wage Determination received from the State Workforce Agency (SWA), along with a copy of the request for the determination submitted to the SWA.” The Employer responded to the Audit but did not include the SWA prevailing wage determination or a copy of the request.

The CO denied labor certification citing the Employer’s failure to provide the prevailing wage determination as issued by the SWA. He cited PERM regulation 20 CFR 656.20(b) as the source of his denial. PERM regulation 20 CFR 656.20(b) provides “a substantial failure by the employer to provide required documentation will result in that application being denied…”

The Employer requested reconsideration of the denial stating that it inadvertently forgot to include the documents in its Audit response. They said they had obtained a Prevailing Wage Determination from the SWA in Georgia and included a copy in their request for reconsideration.

Once again, the CO denied the labor certification application and forwarded the case to the BALCA board for review of the case. The documentation sent by the Employer constituted evidence not in the record on which the denial was based.

Upon review, the BALCA panel affirmed the denial because the Employer neglected to present the mandatory documentation requested by the CO.

BALCA Finds CO’s Claim that ETA 9089 was Incomplete Untenable

May 27, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Computer Software Engineer.”

The CO denied the application stating that the Labor application is incomplete and inconsistent with the submitted information from the employer and the applicant. On the Labor application, the Employer’s physical address is listed as Martinsburg, West Virginia but their phone number’s area code is Arlington, Virginia. The applicant’s home address is listed in Martinsburg, West Virginia but his phone number’s area code -571 is representative of Leesburg, Virginia. As additional proof, the CO declared the Employer had signed in Section N, of the LCA, that the information submitted was “true and accurate to the best of its knowledge.”

Perm regulations require an employer seeking to apply for permanent labor to file an ETA Form 9089.20 C.F.R. & 656.17(a). These regulations state that any incomplete applications will be denied.

The Employer stated that in the past, the company was located in the Falls Church area but moved to West Virginia. After the move, the company wanted to maintain the same phone number. This phone number is internet based by Vonage instead of a physical telephone line. In order to try to prove the information was accurate, the Employer submitted phone records and Lease agreements that displayed the address and phone number.

In the case of the Applicant, the Employer responded that the Alien lives in Martinsburg but uses a cellular telephone with the 571 area code. The Employer submitted AT & T phone records, the applicant’s rental agreement and driver’s license reflecting the Martinsburg address.

The CO forwarded the case to BALCA for review. Upon review of the case, the administrative judge ordered that “the denial of labor certification in this matter is vacated.” BALCA believed the evidence submitted by the Employer to be highly persuasive.

The judge sent the application back to the CO for further processing.

BALCA Indicates that ETA 9089 Errors Might Be Addressed in Audit

May 21, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “R & D Manager/Chemist.”

After receiving and reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. The Employer responded with details of its recruitment efforts as well as summary chart. After reviewing the Audit materials, the CO denied certification of the application. The Employer provided recruitment efforts that did not match the one as listed on the Employer’s ETA Form 9089. In its ETA Form, the Employer indicated it advertised the job opening through its “employee referral program, a job search website and its own website.” In the Audit materials, the Employer failed to provide any documentation of the referral program. It included an advertisement with ecampusrecruiter.com sponsored by the University of Pittsburgh, which was not listed on ETA Form 9089. Since the Employer failed to provide any evidence of the employer referral program, the CO had no choice but to deny certification of the labor application.

The Employer sent a reconsideration request to the CO. The Employer argued that it had made a clerical mistake by listing the referral program on its ETA Form. In its request for reconsideration, it also submitted a corrected ETA Form 9089. The CO re-affirmed its denial and forwarded the case to the BALCA for review.

After BALCA’s examination of the case, the board sided with the CO. The Employer clearly failed to list the correct recruitment activity. Since they made this error, it prevented the CO from having the right information to make a fair decision on the labor application. Furthermore, the Employer had the opportunity in its Audit response to address this issue and failed to do so.

BALCA Finds Omission of Notarized Statement in Audit Response Immaterial

May 16, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Indian Vegetarian Cook.”

After receiving and reviewing the Employer’s Application for Permanent Labor Certification, the CO issued an Audit. He directed the Employer to present a signed notarized statement attesting to the sponsorship of the Alien. In addition, the CO requested answers to several questions concerning the position and the Foreign Worker. The Employer responded to the Audit request in a timely manner.

Once the CO received the audit materials, he denied certification of the application. The Employer did not provide the notarized statement that was requested in the Audit Notification Letter. The Employer sent a reconsideration request to the CO. The Employer stated that “by signing and submitting the ETA Form 9089, it had attested it had a job opportunity available.” The CO re-affirmed his decision and stated that the Employer's failure to send back a notarized letter with the Audit was a valid reason for denying certification. The CO forwarded the case to BALCA for review.

After BALCA’s examination of the case, the denial was overturned. The Board sided with the Employer. By filling out and signing Section N of the ETA Form, the Employer under “penalty of perjury” attested to the sponsorship of the foreign worker. Even though the notarized statement was a reasonable request, the CO did not offer any explanation as to why the omission of it would materially affect the review of the Labor Application. The Board believed that denial of labor certification was not appropriate in the case. The BALCA panel remanded the case back to the CO for certification.

BALCA Discusses Advertisements Placed by Private Employment Firms

May 8, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification for the position of “Latin American Refining Prospect Director.”

An Audit Notification was issued by the CO to the Employer requesting them to submit its recruitment documentation. A response to the request was submitted by the Employer. The Employer stated that it conducted three additional steps in its recruitment process, including listing the job opportunity with a private employment firm. In the response, they explained they were unable to find applicants and received zero resumes that met the minimum qualifications for the position. The job requirements were a Master’s Degree in Business Administration or Chemical Engineering and 10 years of experience in the position or a managerial/executive position in the petroleum/refining industry. In its response, the Employer also submitted a copy of the Recruiting Firms’ advertisement. The ad included an extensive job description, educational & experience requirements as well as the location of the job opportunity. However, the advertisement did not mention the company by name.

The CO stood by his original decision citing the Employer failed to provide adequate documentation of its recruitment through the Recruiting Firm. In addition, the recruiting firm failed to identify the name of the Employer in its advertisements. The CO cited 20 C.F.R. & 656.10(c). It provides “the employer to attest that the job opportunity has been and is clearly open to U.S. workers.” In addition, the CO listed 20 C.F.R. & 656.17(f) (1) for the regulatory bases for denial. It “requires that advertisements name the employer.”

The Employer requested reconsideration of the case stating his company hired a private employment firm to handle recruitment of the position. It is the employment agency’s policy to omit the name of the employer in all advertisements.

After reviewing the case, the CO again denied the Employer’s application. The CO stated it was necessary for an employer’s name to be included in all job advertisements to ensure the employer’s test of the labor market was legitimate. He cited 69 Fed. Reg 77326, 77248,”advertisements naming the employer are more likely to represent bona fide openings or vacancies.”

The Employer filed an appeal with BALCA. In the appellate brief, the Employer argued that if a company is listed in an advertisement, the applicant may decide to bypass the employment firm and contact the employer directly. This would defeat the purpose of using a recruiter in the first place. For this appeal, the CO filed a statement of position arguing that “without the inclusion of all the content requirements in Section 656.17(f), including an employer’s name, the greatest number of able, willing, qualified, and available US workers will not be apprised of the job opportunity.” Since the Employer’s name was not listed in the advertisement, the CO’s ability to verify the availability of US workers was flawed.

After reviewing the case, the BALCA panel ordered that the CO’s determination to be reversed. They granted Labor Certification to the Employer based on several facts. First, they believed that the placement agency’s advertisement provided a lengthy description of the job opportunity; title, job location; as well as the educational & experience requirements for this job. In addition, the Employer provided evidence to show “blind advertisements are the usual method by which a private employment firm advertises a job.”

BALCA on Single Advertisements for Multiple Jobs Opportunities

May 2, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Marketing Manager.”

Upon evaluating an Employer’s Application for Permanent Labor Certification, the CO ordered the Employer to present copies of its recruitment efforts. The Employer provided a copy of its notice of filing, job order with the Washington State Workforce Agency (SWA), as well as newspaper ads placed in the Seattle Times. In addition, they submitted a copy of the company’s recruitment report.

After reviewing the recruitment data, the CO denied Certification because he believed it violated PERM regulation 20 CFR 656.17(f)(6), which provides that additional language not found on the ETA Form 9089 exceeds the job requirements for the position. The CO stated the Employer’s Notice of Filing (NOF), SWA job order, newspaper advertisements and web advertisements all listed “may require employer-reimbursed travel.” The phrase was not listed on the Employer’s 9089 form.

The Employer sent a reconsideration request to the CO. In the argument, the Employer declared that its NOF, SWA job order, newspaper advertisements and web advertisements were used to hire for many positions. Some of these positions did require travel while others did not. The Employer argued that the phrase “may require employer-reimbursed travel” does not create an obligatory travel condition for all of its job openings. They strongly believed that its hiring practices complied with the Department of Labor’s regulations on advertising for multiple positions. The DOL had previously provided that the language “some positions may require travel” may be utilized for recruitment covering multiple positions when some of those positions have no travel requirement.

Upon reconsideration of the employer’s arguments, the CO confirmed his denial of the labor certification. The CO thought the use of “open-ended” terms such as “may require travel” could be interpreted as a compulsory job requirement for applicants. The CO stated that the whole reason for SWA job orders, as well as the additional recruitment efforts, is to test the labor market. If any advertising is placed for the job(s), it may not contain any job requirements or language that is not listed on the ETA 9089 Form. The CO forwarded the case to BALCA for further examination. In the CO’s statement of position, he referred to the Employer’s lack of clarity in the advertisements - the Employer did not distinguish which Marketing Managers require travel and which ones do not.

After BALCA’s examination of the case, they reversed the CO’s decision. The BALCA board believed that the Employer’s NOF, SWA job order and advertisements did not include a job requirement that surpassed the one recorded on the ETA Form 9089. They found that the phrase “may require employer-reimbursed travel” was indistinguishable from the DOL-endorsed phrase “some positions may require travel.” BALCA stated it was obvious from the advertisements that “not all of the Marketing and Product Manager positions required travel.” The board did not think any of the advertisements were misleading and would prevent any US job applicant from applying for the positions.

BALCA Discusses Factors for “Professional or Trade Organizations”

April 18, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Account Manager.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. It required the Employer to present all of its recruitment materials. The Employer responded with the documentation requested.

The CO denied the application based on PERM regulation 20 C.F.R. 656.17 (e) (1) (ii) (E). He stated “the employer failed to provide adequate documentation of the additional recruitment steps for professional occupations.” The Employer placed the ad for the Account Manager position on the website Dice.com, which the Employer argued was a trade or professional organization. The CO maintained that this website did not qualify as a trade or professional organization.

After denial, the Employer requested review of the case. The Employer believed the U.S. Department of Labor had inappropriately concluded Dice.com did not meet the requirements of a trade or professional organization. The Employer argued Dice.com was the same as other well- known trade or professional organizations such as Computer World and the American Society of Mechanical Engineers (ASME). In addition, the employer supplied as additional evidence a statement from Dice.com’s Sales Manager as well as on-line articles from Wikipedia.org about trade and professional organizations.

The CO forwarded the case to BALCA arguing that Dice.com was only an IT career website, and not a trade or professional organization.

Upon review, BALCA affirmed the denial. They came to the conclusion based upon the evidence provided that Dice.com was not a trade or professional organization. BALCA cited that its name as well as the content of its website did not compare to other trade and professional organizations in the IT industry. As a result, the Board found that the Employer “failed to conduct the three additional recruitment steps required by PERM regulation 20CFR 656.17 (e) (1).”

BALCA Says Employer Efforts to Contact U.S. Applicants Lacked Good Faith

March 31, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Accountant. Level I.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. The Employer responded by sending certain information that the CO requested. In response, the CO informed the Employer that they would need to conduct supervised recruitment. As part of the process, the Employer had to submit a copy of the proposed job advertisement. A week later, the CO approved the advertisement and mailed further recruitment instructions. Over a month later, the Employer sent copies of the Georgia State Workforce Agency’s job order and an in-house job posting, along with copies of its advertisements.

A few months later, the CO told the Employer the recruitment time had concluded. In 30 days, the Employer needed to submit a comprehensive written report about the recruitment process and the results. In a timely manner, the Employer compiled with the request. In the report, the Employer noted it had rejected all US applicants, a few of which because the Employer was unable to communicate with them concerning the advertised position.

Upon review of the recruitment report, the CO denied certification. The CO stated “the Employer failed to use good-faith efforts to reach these applicants.”

The Employer requested reconsideration arguing that it used both e-mail and certified mail in an effort to contact applicants. The CO sent the case to BALCA. In its review request, the CO emphasized that there were four US job applicants that the Employer failed to contact by alternative means when the certified mail invitations to interview were returned.

After BALCA’s examination of the case, the panel sided with the CO. The Board found “the Employer failed to use good-faith efforts to reach these applicants.” In addition, BALCA thought the Employer did not provide any evidence to show that they tried to contact these applicants through another method, as each applicant’s telephone number was listed on their resume. BALCA affirmed the CO’s decision to deny certification.

BALCA Says Link to HotJobs Is Not the Same as Posting the Job on the Employer’s Website

March 27, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Assistant Sports Editor, Al Dia.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. He asked the employer to provide documentation of their recruitment process. The Employer submitted copies of print and online job ads. However, the response did not contain any printouts from the employer’s own website.

The CO denied the application declaring that the Employer failed to deliver sufficient documentation to show the Employer used its own website to advertise the job. The Employer did not provide pages from their website that contained the dates the ads were posted online. In addition, the CO believed the Employer unlawfully rejected some US Applicants.

The Employer submitted a reconsideration request proclaiming that “it’s rejection of US job applicants was lawful.” In response to the CO’s claim that it did not advertise on its own website, the Employer submitted pages from Yahoo’s Hot Jobs. These pages showed evidence that the company used both their own website and HotJobs.com to advertise the position. In other words, the employer attempted to use one job posting to satisfy two of the requisite three steps required for professional occupations.

Upon receiving the Employer’s request, the CO requested more information on the rejected US workers. Upon reviewing the additional documentation, the CO declared that the Employer had not unlawfully rejected the US workers; however, he once again denied labor certification. The CO believed the Employer did not sufficiently document the website postings. He forwarded the case to BALCA for review.

After BALCA’s examination of the case, the board sided with the CO. The Employer did not conduct the three additional recruitment steps required for professional occupations. Specifically, they needed to actually advertise the job on their website and not just send applicants to another website to review the job opportunity. They could have chosen another recruitment option from the list of ten.

Note: Yahoo’s Hot Jobs website no longer exists!

BALCA Upholds Denial in Case Involving “On the Job” Experience

March 17, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Electronics Engineer.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification requesting evidence of the employee’s work experience. The Employer sent back its recruitment documentation as well as the worker’s educational information, among other documents.

Upon review of the Audit response, the CO denied the Labor Certification. The CO believed the applicant’s credentials did not match the position’s minimum job requirements recorded on the Labor application. He stated the worker did not have a Master’s degree or 60 months experience at the time of his hire and only received his Master’s degree after he started working for the company. Overall, the CO declared “the Employer’s job requirements listed on Form 9089 did not represent the Employer’s actual minimum requirements.”

The Employer sent a reconsideration request to the CO. In its argument, the Employer stated that the employee had acquired his Master’s degree while he was employed in a different position, as an associate member of the employer’s technical staff. He was later promoted to a different position, promoted to the position of member of the technical staff. For clarification purposes, the employer stated they wanted to certify the worker for the member of technical staff position.

Once again, the CO denied certification for the Employer’s failure to list the various titles held by the foreign worker while employed by the Employer. The CO forwarded the case to the BALCA.

After BALCA’s examination of the case, they affirmed the CO’s denial. The Board believed the “Employer failed to demonstrate that the foreign worker possessed the minimum requirements” as listed on ETA Form 9089.

BALCA Says Content Requirements for Ads Do Apply to SWA Job Orders

March 13, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Senior Managing Consultant.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. He instructed the Employer to submit its recruitment documents. Once the Employer responded, the CO denied certification of the application for multiple reasons. First and foremost, the position communicated in its State Workforce Agency job order did not match the one listed on the Employer’s ETA Form 9089 in violation of PERM Regulation 656.17 (f)(4) – the CO initially denied the application citing under 656.17(f)(6), which was incorrect. The CO cited the employer’s SWA job order neglected to mention travel requirements that were listed on its Form 9089. On the Employer’s form, it specified, “the work will be performed at various client sites throughout the US.” The CO stated a second reason for denial, as he believed the Employer did not “provide adequate documentation to show that it advertised the job opportunity on its website.”

The Employer sent a reconsideration request to the CO. In its argument, the Employer stated the ETA form did contain material that surpasses the job conditions on the SWA job order rather than the other way around. The CO delivered a second denial stating that the SWA job order did not list “the work will be performed at various client sites throughout the US,” yet this statement was written on Form ETA 9089. He forwarded the case to the BALCA.

After BALCA’s examination of the case, the board sided with the CO. The Board deemed the Employer clearly violated the PERM regulations because ‘the geographic area of employment contained in the SWA job order did not match the geographic area of employment described in the ETA Form 9089.’ On the Form 9089, the Employer clearly lists the geographic location as Somers, NY and includes “various client sites throughout the US.” However, the SWA job order neglects to mention it. BALCA affirmed the denial of the labor certification based on these grounds.

BALCA Upholds Denial for Failure to Specify Location of NOF Posting

March 5, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Travel Agent.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. It required the Employer to present the notice of filing documentation. The Employer sent back a copy of the Notice of Filing (NOF).

The CO denied the application for multiple reasons. He stated that the employer did not name the location of where the NOF was posted, as a result, they violated PERM regulation 20 C.F.R. 656.10 (d) (1) (ii). This regulation requires that “the NOF must be posted at employer’s facility or location in two conspicuous places where the employer’s US workers can readily read the posted notice on their way to or from their place of employment.” The regulations also provide that “the documentation requirement may be satisfied by providing a copy of the posted notice and stating where it was posted.”

After the denial, the Employer requested reconsideration. The Employer believed the PERM regulations did not list the location of the posting as a requirement. Upon reviewing the request, the CO once again denied certification. He clarified that the PERM regulations require “the NOF be clearly visible and unobstructed while posted and must be posted in conspicuous places where the US workers can readily read the posted notice on their way to or from their place of employment.”

The CO forwarded the case to BALCA for review. In its argument, the Employer declared that the PERM regulations give them the option to inform the CO as to where the NOF was posted. BALCA believed the content of the NOF was fine. However, the Employer did not provide sufficient evidence to show the exact location of the NOF, nor did the Employer offer another method for which the CO could verify that the NOF was posted in accordance with the regulations. The Board affirmed the CO’s decision to deny certification of the application.

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

February 25, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Translator.”

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

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

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

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

BALCA Says Employers Do Not Need to Document Posting Dates of NOF

February 19, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Landscape Tech.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification requesting the Employer to present documentation of its Notice of Filing (NOF). Once the CO received the Audit materials, he denied the Labor Application on the ground that the Employer failed to confirm that the NOF was posted for ten (10) consecutive business days between 30 and 180 days before filing its ETA Form 9089, in violation of PERM regulation 20 CFR 656.10(d).

The Employer sent a reconsideration request to the CO. In his response to the reconsideration request, the CO requested the Employer, in 30 days, present a complete copy of their ETA Form 9089, a complete copy of the Request for Reconsideration and a complete copy of all of the audit documentation. The Employer provided the documentation; however, the CO denied the Labor Application citing the Employer did not send its materials back in a timely manner. The Employer then filed a second reconsideration request. In its argument, the Employer claimed it was an administrative error on the part of the Department of Labor, and re-submitted all of its materials including the original filing, audit materials and correspondence with the CO.

Upon re-examining the materials, the CO concluded that the Employer’s documentation failed to provide evidence to overcome the denial. He stated “the Employer failed to disclose the posting dates of the NOF.” The CO forwarded the case to BALCA for review.

After BALCA’s examination of the case, they reversed the CO’s denial of the labor certification. The Board believed the Employer did not violate PERM regulations because there is no requirement that the specific dates of posting of the NOF be supplied as proof of posting.

BALCA Upholds Denial in Case Involving Home Office

February 11, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Field Service Engineer.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. One of the issues present was the fact that the main worksite address on the ETA Form 9089 was the same as the alien’s address. In its Audit response, the Employer provided its recruitment documentation and explained that the position allows its “Field Service Engineer to work from home and to travel to client sites as needed.”

Once the Employer responded, the CO denied certification. The CO indicated the position communicated in its recruitment efforts did not offer the condition to work from home to US workers. This was a violation of PERM Regulation 20 CFR 656.17(f)(7). This regulation requires that an advertisement “must not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.”

The Employer sent a reconsideration request to the CO. In its argument, the Employer argued that there is not a PERM regulation that requires advertisements to indicate that the geographic location is a home office. The CO affirmed its initial denial and forwarded the case to BALCA for review.

After BALCA’s examination of the case, the panel sided with the CO. BALCA believed the Employer’s advertisements were unduly restrictive, misleading and could have prevented prospective U.S. applicants from applying for the position.

BALCA Acknowledges Due Process Concerns But Upholds PERM Denial

February 3, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Instructional Coordinator: Computer Cluster.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. Once the Employer responded, the CO denied certification of the application. He stated the position communicated in its recruitment efforts did not match the one listed on the Employer’s ETA Form 9089 in violation of PERM Regulation 20 CFR 656.17(f)(7). This regulation requires that an advertisement “must not contain wages or terms and conditions of employment which are less favorable than those offered to the alien.”

The employer’s ETA form 9089 contained the following language, not listed in any of its recruitment efforts - “occasional day travel within San Antonio Metropolitan area and/or to Corpus Christi, Texas. No Overnights.” The Employer sent a reconsideration request to the CO. In its argument, the Employer argued that it did not violate 656.17(f)(7) because it did not mention any travel in its recruitment advertising. They also stated by “not listing a travel requirement it makes the terms and conditions of employment offered to US workers more favorable.” The CO affirmed its initial denial and forwarded the case to BALCA for review.

After BALCA’s examination of the case, the panel sided with the CO. The Board deemed the Employer clearly violated PERM regulations, but not the right one cited by the CO. By not indicating any travel requirement, the Employer violated PERM regulation 20 CFR 656. 17(f)(4). This regulation requires that advertisements must “indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.” The Employer cannot dispute that they did not list a travel requirement in their recruitment efforts. Even though the CO cited the wrong PERM regulation in his denial, BALCA could not certify a labor application that was in clear violation of a PERM regulation. The Board affirmed the denial.

BALCA on Presumption of Delivery of DOL Mail

January 28, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Maid.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied certification. He cited the Employer’s failure to “make a selection for Section H-1” of the 9089 form as grounds for the denial. The Employer submitted a reconsideration request stating that they had completed Section H-1.

The CO issued “a request for information about the bona fides of the Employer’s business.” In addition, he sent an Audit notification to the company’s attorney. After the deadline had passed to receive the Audit response, the CO affirmed its initial denial of labor certification. The Employer sent a reconsideration request to the CO arguing that it never received the Audit notification or the request for information. In its argument, the Employer sent a letter from their General Manager that stated he had never received a letter. They also provided email documentation from the Atlanta Processing Center which cited the Employer’s attorney’s response to the request for information from a request initially made in 2008. The CO denied reconsideration stating the Audit notification was mailed to the address on record, no change of address was recorded within the file, and the other letters were delivered and responded to with no problem.

After BALCA’s examination of the case, the Panel sided with the Employer. The Board believed the CO just presumed delivery of the mail with no actual proof that the Audit response was actually delivered to the Company’s attorney. BALCA felt the Employer was sincerely trying to respond to all of its correspondence and without evidence of the contrary; the Board remanded the case back to the CO for processing.

BALCA OKs Omission of Language Requirement in NOF

January 21, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Production Supervisor.”

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

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

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

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

NO ROOM FOR ERROR - BALCA Says 20 CFR 656.11(b) Effectively Overruled HealthAmerica

January 14, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Cook Assistant, Japanese Cuisine.”

After audit, the CO denied the labor certification stating the prevailing wage on the ETA form 9089 did not match the one listed on the prevailing wage determination (PWD). The Labor application listed “$10.04” per hour and the prevailing wage determination listed “$10.14” per hour. The Employer requested reconsideration of the denial stating the prevailing wage discrepancy was “a minor typographical error”, “a clerical mistake of minor importance,” and that “no potential applicant was exposed to the clerical error.” They cited its Notice of Filing included the accurate wage. The Employer also argued in order to correct and re-file the labor application they would have to re-start the time-consuming recruitment process all over again.

After reviewing the reconsideration, the CO affirmed its denial of certification. He believed that under the PERM regulations, “employers must present an application that is complete and accurate to ensure the integrity of the PERM process.” The CO also pointed out that “$10.04” was typed twice on the application. The CO based his decision on the 20 C.F.R. 656.10(c)(1), which requires employers to certify in applications for permanent employment certification that the “offered wage equals or exceeds the prevailing wage.” The CO forwarded the case to BALCA for review.

Upon review, the BALCA panel affirmed the denial. The panel was required to follow PERM regulation 20 CFR 656.11(b). This regulation states “requests for modifications to an application will not be accepted for applications submitted after July 16, 2007.” Although they believed the errors were typographical, the Board was not going to second guess the PERM regulation.

BALCA Says Laid-Off U.S. Worker was Rejected for a Lawful, Job-Related Reason

January 8, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Software Engineer.”

The CO denied the labor certification stating “the Employer did not notify potentially qualified laid-off US workers of the job opportunity.” In response, the Employer requested reconsideration of the denial. The Employer argued they did not have a US worker who met the qualifications of the position. The CO sent an Audit Notification requesting documentation of all of the laid-off US workers and how they were advised of the available position and the results of such notification and consideration. A month later, the Employer presented a recruitment report that summarized its “lay-off review.”

Once again, the CO denied the labor application because he believed “a US worker was rejected for non-job related reasons.” The Employer did not re-hire the US worker because he did not have the required specific skill sets. While the CO was aware that the US worker lacked the qualifications, he believed the worker could gain through reasonable on the job training the skills necessary to perform the job duties of the position.

The Employer filed another request for reconsideration of the denial. They argued the lack of special skills was a “lawful job related reason” for rejection. The Employer strongly felt those skills could not be taught within a realistic period of on the job training. In response, the CO upheld his denial and forwarded the case to BALCA for review. The CO stated his denial was valid because the Employer did not provide any documentary proof, as mere assertions are insufficient to prove a lawful rejection.

Upon review, the BALCA panel reversed the denial of the CO. The Board believed the Employer appropriately turned down the US Worker because he failed to meet the minimum requirements of the proffered position as listed in the ETA 9089. In addition, the CO did not mention in his initial denial that he wanted to see actual documentation of the lawful job-related reasons for rejection. BALCA believed the Employer was not provided sufficient notice of this part of the CO’s denial and was not able to present any evidence to rebut. BALCA stated the CO did “not provide adequate authority to deny the application,” so it was sent back to the CO for certification.

BALCA on Documenting Recruitment from the Employer’s Website

December 18, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Computer & Information Systems Manager.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. Once the Employer responded to the Audit, the CO denied certification of the application for failing “to respond to the audit notification within the required time.”

The Employer sent a reconsideration request to the CO. In its argument, the Employer submitted its audit response documentation that included a copy of its job posting from its website with an unreadable handwritten note displaying the dates of posting. In addition, the recruitment report signed by the Company’s President was submitted. In the report, the time frame for the job posting on the employer’s website was listed as November 30 to December 30, 2008.

Once again, the CO delivered a denial of the labor application. He believed the Employer did not provide sufficient documentation of its website job posting. It violated PERM regulations 20 CFR 656.17 (e)(1)(ii)(B). This regulation requires Employers to “provide dated copies of pages from its website that advertise the occupation involved in the application.”

The Employer sent a second reconsideration request. This time, they included a letter from the Company’s President affirming he was the one who posted the position on the website. The CO responded that the letter from the President was not a sworn statement and it was considered new evidence. He forwarded the case to BALCA for review.

After BALCA’s examination of the case, they sided with the CO. Regulation 20 C.F.R. 656.24(g)(2), limits the type of evidence that can accompany a motion for reconsideration. The Board held that the letter submitted by the Employer did not meet the criteria as listed in 20 C.F.R. 656.24(g)(2). BALCA affirmed the denial of the labor application.

En Banc Panel Resolves BALCA Dispute Over Prevailing Wage Documentation

December 9, 2013

The Board of Alien Labor Certification Appeals (BALCA) overturned the decision of a Certifying Officer (CO) to deny Labor Certification.

After obtaining & examining an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification ordering the Employer to submit a copy of the Prevailing Wage Determination (PWD) received from the State Workforce Agency (SWA) along with a copy of the request for the determination. The Employer replied to the Audit by providing a copy of the PWD issued from the Pennsylvania Bureau of Workforce Development Partnership. It did not contain a copy of its original request for a prevailing wage as submitted to the Pennsylvania SWA.

The CO denied labor certification citing the Employer’s failure to provide the request for the PWD in a timely manner. He referred to PERM Regulation 20 C.F.R. § 656.20(b) as his reason for denial. PERM Regulation 656.20(b) declares, “A substantial failure by the employer to provide required documentation will result in that application being denied.”

The Employer requested reconsideration of the denial maintaining that it accidentally neglected to send in the PWD request with its audit materials. They argued that the Pennsylvania SWA does not issue the PWD on the initial form and does not send it back. When they sent in the initial PWD, they believed it would be adequate evidence. Upon learning of the omission, the Employer did find a copy of the prevailing wage request and presented it with its request for reconsideration.

Once again, the CO denied labor certification and forwarded the case to BALCA. Before a decision was made on the case, BALCA voted to grant an “en banc review” of the case. Both parties were able to submit their briefs and the American Immigration Lawyers Association (AILA) filed an “amicus brief.” AILA sided with the Employer asserting the CO had a broad view of the PERM regulations. They felt the CO could only deny certification if the Employer neglected to supply documentation that is “specified in the regulations.” As the request form for a PWD is not specifically addressed.

After reviewing all of the briefs and arguments in this case, BALCA reversed the CO’s denial of labor certification. BALCA believed that the error of not including the original PWD request did not signify a “substantial failure to provide required documentation.”

BALCA Remands, Says Ads Would Not Prevent U.S. Workers from Applying

December 3, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Support Engineer”.

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification directing the Employer to present its recruitment records. In the Notice of Filing (NOF), the Employer lists the position “requires a BA/BS or MA/MS degree or equivalent in Computer Science, Engineering, Physics, Math, Information Systems, Business or related field; Team Manager Positions are available.” The Washington State Workforce Agency (SWA) job order stated “qualifications may include a MA/MS degree or equivalent or a BA/BS degree or equivalent in Computer Science, Engineering, Math, Physics, Information Systems, Business or related field; Multiple positions available.”

The Employer complied with the Audit request and ultimately the CO denied certification of the application. The position communicated in its NOF and SWA did not match the one listed on the Employer’s ETA Form 9089 in violation of PERM Regulation 20 C.F.R. § 656.17 (f)(6). On the Employer’s NOF and SWA, it listed a Master’s degree that surpassed the requirements recorded on the ETA Form.

The Employer requested reconsideration. In its argument, the Employer stated that neither the NOF nor SWA indicated a Master’s degree was a requirement for the position. The terms “may include a BA/BS or MA/MS” or “requires a BA/BS or MA/MS” were used to clarify that some of the positions could necessitate a Master’s degree.

After BALCA’s examination of the case, BALCA sided with the Employer. The Board thought any job applicant could clearly view that multiple positions were available with varying qualifications. Specifically, the Employer’s job description was written in plural term and it was clear from the inclusion of the team manager positions in the ad that the various positions had differing educational requirements. BALCA believed the Employer’s advertisements were not misleading or would have stopped any US applicant from applying to these jobs. The labor application was sent back to the CO for certification.

BALCA on Travel Requirements and Multi-Position Notices of Filing

November 25, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for several “Software Engineer” positions.

Upon evaluating an Employer’s Application for Permanent Labor Certification, the CO ordered the Employer to present copies of its recruitment data.

After reviewing the recruitment data, the CO denied the Labor Application because he believed it violated PERM regulations 20 CFR 656.10 (d)(4) and 656.17(f)(6). The CO stated the Employer’s Notice of Filing (NOF) and other recruitment materials included a travel requirement not listed on the Employer’s ETA Form 9089.

The Employer sent a reconsideration request to the CO. In the argument, the Employer declared that its NOF was used to fulfill multiple positions. Some of these positions did require travel while others did not. The Employer argued that the phrase “may be assigned to various unanticipated sites throughout the United States” does not create an obligatory travel condition for all of its job openings. Additionally, the Employer argued that the Department of Labor (DOL) endorsed the use of the phrase “some positions may require travel” in advertisements covering multiple positions, and the phrase “may be assigned to various unanticipated sites throughout the United States” bears no logical or material distinction from the DOL endorsed language.

Upon reconsideration of the employer’s arguments, the CO confirmed his denial of the labor certification. The CO thought the use of “open-ended” terms such as “may require travel” could be interpreted as a compulsory job requirement for applicants. He forwarded the case to BALCA for further examination.

After BALCA’s examination of the case, BALCA affirmed the CO’s decision. BALCA believed that “potential job applicants could be confused as to whether the Software Engineer positions had the potential requirement of travel.” BALCA cited the NOF does show it is for multiple positions. However, it does not convey that the travel requirement only pertained to certain positions. There were no contextual cues in the NOF that would signify to a reader that the travel requirement only applied to some of the positions. The Employer in no way differentiated between the various software engineer positions. Accordingly, the phrase “may be assigned to various unanticipated sites” constituted a travel requirement that exceeded the requirements listed in the ETA Form 9089.

BALCA Rejects Newspaper HQ as Determinative in Evaluating Area of Intended Employment

November 19, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Computer Programmer.”

Upon evaluating an Employer’s Application for Permanent Labor Certification, the CO denied the Labor Application because the Employer ran its recruitment advertising in the Arkansas Democrat Gazette, as he believed it was not the newspaper of general circulation for Bentonville, Arkansas. The company was located in Bentonville, AR and the newspaper was headquartered in Little Rock, AR. He believed that the Arkansas Democrat Gazette would not bring replies from available US workers in the area of intended employment.

The Employer sent a reconsideration request to the CO. In the argument, the Employer declared that “The Arkansas Democrat Gazette is most likely to bring responses from available US workers because it is the most widely circulated newspaper in Bentonville and the most widely circulated Sunday newspaper in all of Arkansas.” They submitted several pieces of evidence to back up their claims including circulation numbers from the Arkansas Democrat Gazette and Mondo Times website. One of these documents stated there is no other newspaper in Bentonville, AR.

Upon reconsideration of the employer’s arguments, the CO confirmed his denial of the labor certification. He thought the 200 mile commuting distance between the area of intended employment, Bentonville, AR, and the newspaper’s headquarters in Little Rock, AR could not be considered normal. The CO assumed the Employer should have posted ads in a newspaper within closer proximity to Bentonville.

The Employer filed an appeal to BALCA. They had clearly obeyed PERM regulations by placing two different Sunday advertisements in a newspaper of general circulation in the area of intended employment.

After BALCA’s examination of the case, the CO’s decision was reversed. The Board believed the CO did not interpret the regulations correctly. They cited the PERM regulations do not state the newspaper’s business address has to be within commuting distance of the job location.

BALCA Discusses Substantially Equivalent Alternative Requirements

November 15, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Senior Software Engineer.”

The CO denied the labor certification stating the alternative requirements for the position were different (not substantially equivalent) from the primary job requirements on the ETA Form 9089. The Employer mentions as an alternative requirement for this position - 12 years of related experience as being equivalent to possessing a Bachelor’s degree. On the Form, the Employer lists the “primary requirements of a Bachelor’s degree in Engineering, Electronic Engineering, or a closely related field, and 60 months of experience” in the job offered. The CO cited a violation of PERM Regulation 20 C.F.R. § 656.17(h)(4)(i).

The Employer requested reconsideration of the denial stating it only listed one education and experience requirement; therefore, it did not accept an alternative combination of education & experience. They argued that their recognition of 12 years of experience as the equivalent of a bachelor’s degree is a widely used standard in the IT industry and amongst U.S. educational institutions.

After receiving the Employer’s request for reconsideration, the CO maintained his decision to deny certification and forwarded the case to BALCA. In his letter to BALCA, the CO contested the Employer’s statement that “three years of work experience equals one year of college education.” When validating the equivalency of the employer’s alternative requirements against the primary requirements, Specific Vocational Preparation (SVP) level is calculated utilizing the detailed SVP guidance provided in the administrative directive, Field Memorandum (FM). Per the FM, a Bachelor’s degree is the equivalent of two years of work experience.

Upon review, BALCA confirmed the denial because they believed the Employer’s primary and alternative requirements were not considerably equivalent. The Board also stated there was “nothing in the PERM regulations, regulatory history, or the Field Memorandum to support a finding that three years of experience without a degree is the equivalent of one year of college/university level credit.”

BALCA Reverses Denial Finding Job Order Form Deficient

November 5, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Business Development Manager-IV.”

After receiving and reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit. He directed the Employer to present copies of its recruitment records. The Employer responded with its New Jersey State Workforce Agency (SWA) Job order that was administered through America’s Job Exchange (AJE).

Once the CO received the audit materials, he denied certification of the application. The CO cited the position communicated in its recruitment advertising did not match the one listed on the Employer’s ETA Form 9089 in violation of PERM Regulations 656.17 (f)(6). In its Labor Application, the Employer stated the position required “a Master’s Degree and 12 months of experience in the job offered.” In its SWA job order, the experience requirement listed “Mid-Career (2-15 years).”

The Employer sent a reconsideration request to the CO. In its argument, the Employer stated it had entered 12 months on the New Jersey job order but the AJE system converted it to 2-15 years. As evidence, the Employer printed a copy of the AJE instructions that mentions the automatic conversion of anything entered from 12 to179 months to mid-career. The CO denied the request. Even though the AJE may alter the experience into a pre-determined scale, the CO declared that the job submission form incorporated a free-form field so the employer could enter its own requirements.

After BALCA’s examination of the case, it was overturned. The Board believed the Employer made an effort to run its recruitment in compliance with PERM regulations. They believed there was no way to avoid the AJE system of conversion. BALCA felt the CO speculated that the Employer could have inserted information into a free-form field, but there was nothing in the record to support such speculation. The case was remanded for certification.

BALCA Interprets Drafting of Alternative Requirements on the ETA 9089

October 28, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “MR Clinical Development Leader.”

The CO denied the labor certification without audit stating the alternative requirements for the position were not substantially equivalent to the primary job requirements on the ETA Form 9089. On the form, the Employer mentions as an alternative requirement for this position “any suitable combination of education, training and experience as an MR clinical development leader, MR Applications Production Manager, Clinical Scientist, Radiographer or as a MR Specialist.” However, the Employer lists “Bachelor’s degree in Radiology, Biomedical Engineering, Chemistry or Medical Technology and 60 months of progressively responsible post-bachelor’s experience and some experience with MR equipment, product and/or application development.” The CO believed the “any suitable combination” wording did not specify the minimum acceptable requirement, so he denied the application in violation of PERM Regulation 20 C.F.R. § 656.17(h)(4)(i).

The Employer requested reconsideration of the denial stating the CO misread their answers to the questions on the form. They argued the minimum requirements are substantially the same as the primary requirements listed on the ETA Form. The Employer mentioned PERM regulation 20 C.F.R. § 656.3, “if the employer is willing to accept work experience in lieu of a baccalaureate or higher degree, such work experience…must be stated on the application form.”

The CO forwarded the case to BALCA for review. Upon review, BALCA reversed the denial because the CO improperly “treated the Employer’s alternative minimum education requirements as satisfying Employer’s alternative requirements for employment, ignoring Employer’s stated experience requirements.” BALCA believed the Employer plainly listed on the ETA Form 9089 that all applicants needed a minimum of 60 months of progressively responsible post-bachelor’s experience, regardless of whether they possessed the required bachelor’s degree or not.

BALCA Reverses CO’s Denial, Discusses Recruitment for “Roving” Positions

October 23, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Senior Systems Analyst.”

Upon evaluating an Employer’s Application for Permanent Labor Certification, the CO denied the Labor Application because he believed it violated PERM regulation 20 CFR 656.17(f)(4). The CO denied certification because “the newspaper advertisement failed to list the correct geographical area of employment with enough specificity to apprise applicants of any travel requirements.” He pointed out the physical area of employment contained in the employer’s job ad in the San Francisco Chronicle as well as hotjobs.yahoo.com does not match the one listed on the ETA Form. The ad lists San Francisco, while Fremont is recorded on the ETA Form. The CO stated these two cities are located in different “Metropolitan Statistical Areas” (MSA).

The Employer filed an appeal to BALCA. They declared that the CO made an error in thinking Fremont and San Francisco were in different MSA’s. The Employer argued that the “advertisements complied with PERM requirements and DOL guidelines for roaming positions.” As evidence, the Employer requested BALCA to take administrative notice of a printout from the Census Bureau’s website which lists the MSA’s, among other evidence. In addition, they wanted the Board to review a “County to County” commuting chart from the San Francisco Bay area. The Employer explained that Fremont is the company’s headquarters but the locations of the job are yet unknown.

After BALCA’s examination of the case, they reversed the CO’s decision. BALCA believed that the advertisement on hotjobs.yahoo.com did not misinform any US workers of the job site. Furthermore, job applicants would understand the job duties could take place anywhere within the San Francisco area. Since the ad mentioned the position may entail long-term assignments within the area, it complied with PERM regulation 656.17 (f)(4). BALCA sent the case back to the CO for certification.

BALCA Upholds Denial for Failure to Investigate Applicant’s Qualifications

October 15, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Industrial/Organizational Psychologist.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. The Employer presented its response and the CO issued a Notification of Supervised Recruitment. A few weeks later, the Employer sent a copy of the proposed job advertisement as well as a copy of the foreign worker’s Master’s degree and school transcripts. In response, the CO requested a signed sworn statement and documentation that explains why training is not realistic to meet the requirements for the particular position. The Employer responded with the required documents. The CO sent the Employer the resumes it had received from advertising. Two months later, the Employer submitted its recruitment report and accompanying records.

Upon review of the recruitment report, the CO denied certification of the labor application. He stated the Employer turned down qualified U.S. job applicants for “non-lawful job-related reasons.” The CO believed there were at least three fitting candidates for the job opening that were refused because the Employer believed they did not meet the minimum requirements. In his denial, the CO cited the Employer’s statement on the ETA Form 9089, “will accept any suitable combination of education, training and experience.”

The Employer requested reconsideration of the denial arguing none of the three job applicants were even slightly qualified for the available position. They also submitted a statement from their Vice President explaining why the applicants were not suitable. The CO sent the case to BALCA. He believed one of the applicants, a U.S. Worker, was able and qualified for the position. The CO thought the Employer should have investigated his qualifications to demonstrate honest recruitment practices.

After BALCA’s examination of the case, BALCA sided with the CO. BALCA thought the applicant had a broad range of experience, training and education. Since the Employer listed their “willingness to accept any suitable combination of education, training or experience,” the Board found the Employer inappropriately excluded the job applicant without further investigation.

BALCA Says Drug Testing and Background Checks are “Requirements” for Recruitment Purposes

October 9, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Bilingual Programmer.”

After obtaining & examining an Employer’s application for Permanent Labor Certification, the CO issued an Audit notification ordering the Employer to submit a copy of the State Workforce Agency’s (SWA) job order. The Employer replied to the Audit within 30 days.

The CO denied labor certification stating “the SWA offered employment terms and conditions of employment that were less favorable than those offered to the alien.” On the SWA job order, the position “required drug testing/screening and background checks.” These requirements were not listed on the Employer’s ETA Form 9089. The Employer requested reconsideration and attached an amended copy of the ETA Form 9089 that listed the required drug testing/screening and background checks.

Once again, the CO denied the labor certification application affirming the Employer did not reverse the cause for denial. The amended form could not be regarded as evidence because it signified new evidence. The Employer needed to complete a brand new labor application.

The CO forwarded the case to BALCA for review. The Employer stated they had “every intent to add the additional requirements to the ETA but missed it on the application inadvertently.” Upon review, BALCA sided with the CO. The Board believed the addition of the drug testing/screening & background checks on the SWA form represented an additional job requirement that should have been listed on the original labor application, as it may have deterred otherwise-qualified persons from applying for the position. BALCA ordered the denial affirmed.

BALCA Rejects Employer’s Use of Washington Examiner for PERM Ads

October 3, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Senior Food Technologist.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied the application. He believed that the Washington Examiner, where the employer placed its Sunday job postings, did not classify as a newspaper of general circulation in the area of intended employment. The CO was certain most job seekers would choose a paper with a larger classified section and job advertisements. He based his denial on PERM regulation 20 C.F.R. 656.17 (e)(1)(i)(B)(1). This regulation mandates newspaper advertisements for recruitment must be placed “in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity; and most likely to bring responses from able, willing, qualified and available U.S. workers.”

After the denial, the Employer requested reconsideration of the case. The Employer argued the Washington Examiner did have a substantial classified section. They stated the newspaper “has a classified section with advertisements for a large number of job opportunities that included both professional & non-professional positions.” In its reconsideration request, the Employer included a “Wikipedia” article about the Washington Examiner. The Employer argued that because of the size of the circulation of the Examiner as reported on the Wikipedia page, it was in fact the newspaper most appropriate to the occupation and workers.

The CO forwarded the appeal to BALCA for review. BALCA thought the Employer did not prove that the Washington Examiner was the newspaper in the Washington DC area most appropriate to the occupation in question. The Board considered the Washington Post to be a more suitable general circulation newspaper. BALCA thereby affirmed the CO’s denial of the labor certification.

BALCA on Calculating 180-Day Period for Filing under 20 CFR §656.17(e)

September 25, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Operating Engineer.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied certification of the application because the Employer had placed their State Workforce Agency (SWA) job order more than 180 days prior to the filing of their ETA Form 9089.

The Employer sent a reconsideration request to the CO arguing that “the 180 day period should be calculated based on the end date of the SWA, rather than the date it commenced.” To interpret the regulations otherwise would penalize employers who wanted to run their SWA’s for longer than 180 days. The CO did reconsider but afterwards, he confirmed the denial. Not happy with the outcome, the Employer appealed the decision to BALCA and restated its argument.

Upon review of this case, BALCA upheld the CO’s denial of labor certification. The panel referenced PERM regulation 20 CFR 656.17 (e). “Under these regulations, the SWA job order must begin no more than 180 days prior to the filing of the ETA Form 9089.” The SWA job order must have ended at least 30 days prior to the filing of the ETA Form 9089. This time period allows for companies to evaluate the current labor market. The panel stressed that if too much time passes, it is not an accurate reflection of the present labor market.


BALCA Reverses Denial, Finds Prevailing Wage Variance De Minimus

September 16, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Computer SW Engineers, Applications.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. He requested the Employer provide its recruitment documentation and a copy of its Prevailing Wage Determination (PWD). The Employer responded and the CO denied certification on two grounds. First, the wage offered in the Notice of Filing and job order was lower than the PWD. The Employer offered $59,467 and the PWD was $59.467.20. In addition, the CO stated the Employer failed to make available copies of employer notices on its employee referral program with incentives.

The Employer sent a reconsideration request to the CO arguing the 0.0003% discrepancy should not cause their labor application to be denied. They indicated their use of “the Department of Foreign Labor’s Foreign Labor Certification (FLC) Data Center Online Wage Library to determine the appropriate annual wage.” The Employer also stated that it had provided a flier of its Employee Referral Program as well as data in its Recruitment Report about the program. Despite the Employer’s claims, the CO delivered a second denial and forwarded the case to BALCA for assessment.

Upon review of this case, BALCA ordered the CO to grant certification. They believed the certification should not be denied for a “minor variance below the prevailing wage.” The INA’s requirement – that an alien be paid 100% of the required PWD – is not violated where the employer advertised a wage that was 99.9997% of the PWD, and when that rate was chosen after seeking out additional guidance from the DOL’s Foreign Labor Certification Data Center Online Wage Library. BALCA’s decision is limited to the facts and circumstances of this particular case. The Board also believed that the documentation the Employer provided concerning its Employee Referral Program with incentives satisfied the regulatory requirements.

BALCA Says Attempts to Explain NOF Deficiencies Are Almost Certainly Destined to Fail

September 10, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Director of Sales.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied certification of the application for multiple reasons. Most importantly, the Employer did not include their name on their Notice of Filing (NOF) in violation of PERM regulation 656.10(d). PERM regulation 656.17 (f)(1) mandates that the advertisements “name the employer.”

The Employer sent a reconsideration request to the CO. In its argument, the Employer stated the NOF was acceptable regardless of the omission of their name. The Employer argued that public access to its building is limited and it is very plausible that only the company’s three employees would have access to the filing. With its request, the Employer submitted multiple documents including their articles of incorporation; federal tax return; photographs of the facility & bulletin posting area; certifications of accreditation; Florida Resale Certificate for Sales Tax; lease agreements; Google Map print-outs; and Miami.Dade.gov Property Information. With its Reconsideration Request, the Employer relied upon the Stone Tech decision.

Upon reexamining the evidence, the CO delivered a second denial and forwarded the case to BALCA for examination.

After BALCA’s examination of the case, BALCA sided with the CO. The Board thought the Employer clearly violated the PERM regulations by failing to list its name in the NOF. BALCA believed the sizeable documentation from the Employer could not assist the motion for reconsideration because none of the extensive documentation provided could be used to support a motion for reconsideration under the current regulations. Furthermore, the BALCA panel stated that the regulations require that “the NOF must comply with the regulatory content requirements.” It was fatal to the Employer’s application to have failed to include its name on the NOF.

BALCA on Familial Relationship between Alien and Employer

September 4, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Forman.”

Upon evaluating an Employer’s Application for Permanent Labor Certification which provided that the employer was a closely held corporation, partnership, or sole proprietorship in which the alien has an ownership interest, or …there is a familial relationship between the owners, stockholders, partners, corporate officers, incorporators, and the alien, the CO issued a “Request for Additional Information.” In 30 days, he needed the following evidence: (1) Proof of a federal employer identification number; (2) Proof that the company was a business entity; and (3) Proof of the physical location of the company. It appears from the record that most of the information requested by the CO already accompanied the Application.

A few months later, the CO delivered a “Notice of Supervised Recruitment.” The Employer was required, in 30 days, to send a draft job advertisement, corporate financial & structure documentation as well as any family relationship the Alien has to the Employer. In a timely fashion, the Employer responded by providing their business license, operating agreement, IRS FEIN number, organization certificate from the Virginia State Corporation Commission, and a letter from the Company’s owner describing his relationship to the Alien.

After reviewing the data, the CO did not conduct any additional supervised recruitment and denied the Labor Application without issuing a request for proof of the Employer’s recruitment efforts. He believed the position “was not open and available to any US worker”. Since the foreign worker is the brother of the owner, the Alien has a benefit in the company and influence/control over the hiring practices. The CO stated the Employer violated PERM regulation 20 CFR 656.10(c)(8).

The Employer sent a reconsideration request to the CO. In the argument, the Employer declared that they supplied documents to prove that the Alien has no ownership interest in the company. In addition, they noted that the CO did not request to view any recruitment documentation on the position so he could not determine whether or not the position was available to US workers.

Upon reconsideration of the employer’s arguments, the CO forwarded the case to BALCA for further examination. In a letter to the Board, he cited the foreign worker was already employed by the company in the same position for three years before the new company was established. The CO also noted the Alien is the supervisor for the other 4 employees in the company and only reports to the Owner (his brother).

When determining whether a bona fide job opportunity exists, the Board must consider the totality of the circumstances, considering, among other factors, whether the alien:


  1. Is in the position to control or influence hiring decisions regarding the job for which labor certification is sought;

  2. Is related to the corporate directors, officers or employees;

  3. Was an incorporator or founder of the company;

  4. Has an ownership interest in the company;

  5. Is involved in the management of the company;

  6. Is on the board of directors;

  7. Is one of a small number of employees;

  8. Has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application; and

  9. Is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operation without the alien.


*No single factor, such as a familial relationship between the alien and the employer or the size of the employer, shall be controlling.

After BALCA’s examination of the case, BALCA reversed the CO’s decision. The Board believed that the CO should not have denied certification. BALCA mentioned that the Employer provided enough evidence that the Alien did not have ownership interest in the company. The Board also stated the CO failed to request recruitment documentation for the job opening and he “abandoned the supervised recruitment process without warning or notice or to the Employer.”


BALCA on Content of Supervised Recruitment Report

August 28, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of Vice President, Mergers & Acquisitions.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO informed the Employer that he would need to oversee their PERM recruitment. As part of the process, the CO sent the employer separate instructions for its advertisement and recruitment report. In the instructions for the recruitment report, he requested the Employer to “state the names, addresses and provide resumes (other than those sent to the employer by the CO) of the U.S. workers who applied for the job opportunity.

A few months later, the Employer presented the outcomes of its PERM recruitment in its recruitment report. The Employer indicated they had received 70 applications from U.S. Workers; and 7 applications from non-U.S. workers. Out of the 70 U.S. candidates, only three of the candidates were interviewed for the position. Based on the interviews, the Employer decided none of the applicants were qualified because they lacked the required critical experience and skills. In the recruitment report, the Employer identified the name of each applicant and provided the reason each candidate was disqualified. However, in the actual report, the Employer did not state the addresses of the applicants. In the report, they wrote a note to the CO that specified the following, “The resumes of the applicants who responded directly to JP Morgan Chase are attached to this report. Please note that the resumes, which are part of this recruitment report, include the name and address of each applicant.”

Upon review of the recruitment report, the CO denied certification of the labor application. The CO provided that the Employer violated PERM regulation 20 CFR 656.21 (e)(3) because the Employer neglected to “state” the U.S. worker’s addresses in the recruitment report.

The Employer requested reconsideration and/or review of the denial. The Employer argued that they did not fail to provide the U.S. worker’s addresses because they included the applicant’s resumes along with their report. The Employer contended it was not necessary to re-type the addresses because the information could be found on the resumes. Upon review, the CO reaffirmed his denial. He referred the case to BALCA.

After BALCA’s examination of the case, BALCA affirmed the CO’s decision to deny certification. The Board found the Employer’s recruitment report did not obey the supervised recruitment instructions as the addresses of the applicants were not stated in the report. BALCA believed the CO should not have had to look through resumes to find names and addresses. Additionally, some of the resumes did not contain applicant’s addresses.

BALCA Finds No Regulatory Violation in Wage Error on ETA 9089

August 19, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Software Engineer.”

After obtaining & examining an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification ordering the Employer to submit its Prevailing Wage Determination (PWD) and other requested documentation. The Employer replied to the Audit by providing the PWD as well as the other documents.

The CO denied the labor certification stating the prevailing wage on the ETA form 9089 did not match the one listed on the PWD. He cited a violation of PERM Regulations 656.10(c) (1), 656.40 AND 656.41. In addition, the Employer’s Notice of Filing did not contain the job requirements or duties as listed on the ETA Form 9089. The Employer requested a reconsideration of the denial stating the prevailing wage inconsistency was an unintentional harmless error. The Employer also believed all of its audit response materials were compliant with PERM regulations.

The CO forwarded the case to BALCA for review. The CO raised an entirely new issue in its transmittal letter for denial of the Employer’s application.

Upon review, BALCA reversed the denial because the CO inappropriately referred to inapplicable PERM regulations in his labor application denial. BALCA stated that the Employer did not violate any of the PERM regulations. In agreement with PERM regulation 656.10 (c)(1), the Employer presented the worker a salary that surpasses the prevailing wage. As required by PERM 656.40, the Employer kept his PWD on file and submitted it upon request. As to the new issue brought forward by the CO, since the Employer was not provided sufficient notice of the CO’s denial and was not able to present any evidence, BALCA believed that in the interest of due process and fundamental fairness, the Employer’s labor application should not be denied, as they did not have an opportunity to present evidence that would overcome the denial.


BALCA Finds Employer Failed to Investigate Qualifications of U.S. Applicants

August 13, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Design Engineer-Mechanical.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. The Employer responded by sending its recruitment report as well as resumes from U.S. applicants. In response, the CO informed the Employer that they would be required to conduct supervised recruitment. As part of the process, the Employer could only advertise the position in permitted publications and abide by specific advertising conditions. The Employer sent the CO a copy of the proposed job advertisement that was approved by the CO. A few weeks later, the Employer sent copies of the Arkansas State Workforce Agency job order; newspaper ads, on-line job postings from its company web page and a job search website. The CO told the Employer about the resumes that he had received as well.

A few months later, the CO told the Employer that the recruitment time had concluded. In 30 days, the employer was required to submit a comprehensive written report about the recruitment process and the outcomes. In a timely manner, the Employer presented its recruitment results. In the report, the Employer noted it had received resumes from 45 applicants. During the review of the resumes, the Employer cited it considered job applicants based on their education, training, experience as well as trainability. The Employer believed that none of the applicants fulfilled the minimum job requirements and therefore, were not qualified for the position.

Upon review of the recruitment report, the CO denied certification of the labor application. He stated the Employer excluded qualified U.S. job applicants for other than lawful, job-related reasons. The CO believed there were at least ten possibly qualified candidates for the job opening.

The Employer requested review of the denial, so the CO sent the case to BALCA. In its review request, the Employer emphasized the ten candidates, named in the CO’s denial, were not qualified for the position because they either did not meet the minimum education requirements; did not have experience with the Unigraphics system; or did not possess a background in or knowledge of heat transfer and fluid dynamics. The Employer claimed that training for these individuals would be time consuming and very costly. The Employer believed it was within their right to discard candidates that lacked the job requirements.

After BALCA’s examination of the case, BALCA affirmed the CO’s decision to deny certification. The Board found the Employer inappropriately excluded job applicants without interviewing them or researching their background. In addition, BALCA thought the Employer did not take into consideration that “these applicants could became qualified after a reasonable period of on-the-job training or taking on-line tutorials or training courses.”

BALCA Affirms Denial Where Web Ad Differed from ETA 9089

August 7, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Multi-Media Artists & Animators.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. After the Employer responded, the CO denied certification of the application for multiple reasons. First and foremost, the position advertised did not match the one listed on the Employer’s ETA Form 9089 in violation of PERM Regulations 20 C.F.R. § 656.10 and § 656.17 (f)(3). These regulations require that an advertisement “provide a description of the vacancy specific enough to apprise a US worker of the job opportunity for which certification is sought.” The CO revealed that the employer’s web advertising specified the position required a minimum of a high school diploma. On the Employer’s ETA Form 9089, it listed a Bachelor’s degree plus 24 months, or 4 years of work experience as an alternative to the degree.

The Employer sent a reconsideration request to the CO. In its argument, the Employer stated the government made a clear error in denying the labor application. The CO delivered a second denial and forwarded the case to BALCA for review.

After BALCA’s examination of the case, they affirmed the CO’s denial of labor certification. The Board deemed the Employer clearly violated the PERM regulations “by not specifically apprising US workers of the job opportunity.” In the web advertising, the position advertised to applicants stated only a high school diploma was required. However, the ETA form mentioned a higher level of education. In its defense, the Employer believed the difference in listings would have caused a problem for applicants if the advertised job would have required stricter educational prerequisites. BALCA thought US workers viewed different requirements for the position then what was listed on the ETA Form. BALCA believed prospective applicants may have overlooked the ad because they thought they may be overqualified for the job.

BALCA Upholds Denial Due to Lack of Travel Language in NOF

July 31, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Software Quality Engineer.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. After the Employer responded, the CO denied certification of the application for violating PERM Regulation 20 CFR 656.17 (f)(4) among other grounds. PERM regulation 656.17 (f)(4) requires that newspaper ads “must indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.” The Employer’s Notice of Filing and recruitment efforts listed Santa Clara, California ONLY; however, the ETA Form 9089 mentioned Santa Clara, California, and “various unanticipated locations throughout the U.S.”

Even though the Employer sent a reconsideration request to the CO, he delivered a second denial and forwarded the case to BALCA for review. The Employer argued that the position did not necessitate travel and only listed it on the ETA Form to “allow for participation in events outside of the employer’s offices.” They insisted that the travel requirement was optional.

Upon review of this case, BALCA upheld the CO’s denial of labor certification. The Board believed the Employer had clearly violated PERM Regulation 20 CFR 656.17 (f)(4) by not informing US job applicants of the possibility of traveling to various locations. If US applicants knew about the option of various company locations, BALCA thought more potential applicants might have applied for the position.


BALCA Upholds Denial of Certification Where Travel Not Mentioned in Ad

July 23, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Accountants and Auditors.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. Once the Employer responded, the CO denied certification of the application for multiple reasons. First and foremost, the job description listed in its recruitment advertising did not match the one listed on the Employer’s ETA Form 9089 in violation of PERM Regulations 20 C.F.R. § 656.10 and 656.17 (f)(3). These regulations require that an advertisement “provide a description of the vacancy specific enough to apprise a US worker of the job opportunity for which certification is sought.” The CO also cited the employer’s website advertising neglected to mention travel requirements that were listed on its ETA Form 9089. On the Employer’s ETA Form, it specified, “various unanticipated Deloitte locations and client sites nationally.”

The Employer sent a reconsideration request to the CO. In its argument, the Employer stated the U.S. Department of Labor (DOL) made a mistake in its ruling. The CO delivered a second denial and forwarded the case to the BALCA for review.

After BALCA’s examination of the case, the board sided with the CO. The Board deemed the Employer clearly violated the PERM regulations “by not specifically apprising US workers of the job opportunity.” On the ETA Form 9089, the Employer clearly listed the travel requirements but neglected to mention these requirements in its Philadelphia Inquirer newspaper advertisements. In its defense, the Employer argued the language listed on the form was not travel requirements but should have been interpreted as the position was open at various nationwide locations. BALCA firmly believed US workers did not view an accurate description of the job in any of the Employer’s advertising.

BALCA on Single Advertisements for Multiple Jobs Opportunities

July 16, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Marketing Manager.”

Upon evaluating an Employer’s Application for Permanent Labor Certification, the CO ordered the Employer to present copies of its recruitment efforts. The Employer provided a copy of its notice of filing, job order with the Washington State Workforce Agency (SWA), as well as newspaper ads placed in the Seattle Times. In addition, they submitted a copy of the company’s recruitment report.

After reviewing the recruitment data, the CO denied Certification because he believed it violated PERM regulation 20 CFR 656.17(f)(6), which provides that additional language not found on the ETA Form 9089 exceeds the job requirements for the position. The CO stated the Employer’s Notice of Filing (NOF), SWA job order, newspaper advertisements and web advertisements all listed “may require employer-reimbursed travel.” The phrase was not listed on the Employer’s 9089 form.

The Employer sent a reconsideration request to the CO. In the argument, the Employer declared that its NOF, SWA job order, newspaper advertisements and web advertisements were used to hire for many positions. Some of these positions did require travel while others did not. The Employer argued that the phrase “may require employer-reimbursed travel” does not create an obligatory travel condition for all of its job openings. They strongly believed that its hiring practices complied with the Department of Labor’s regulations on advertising for multiple positions. The DOL had previously provided that the language “some positions may require travel” may be utilized for recruitment covering multiple positions when some of those positions have no travel requirement.

Upon reconsideration of the employer’s arguments, the CO confirmed his denial of the labor certification. The CO thought the use of “open-ended” terms such as “may require travel” could be interpreted as a compulsory job requirement for applicants. The CO stated that the whole reason for SWA job orders, as well as the additional recruitment efforts, is to test the labor market. If any advertising is placed for the job(s), it may not contain any job requirements or language that is not listed on the ETA 9089 Form. The CO forwarded the case to BALCA for further examination. In the CO’s statement of position, he referred to the Employer’s lack of clarity in the advertisements - the Employer did not distinguish which Marketing Managers require travel and which ones do not.

After BALCA’s examination of the case, they reversed the CO’s decision. The BALCA board believed that the Employer’s NOF, SWA job order and advertisements did not include a job requirement that surpassed the one recorded on the ETA Form 9089. They found that the phrase “may require employer-reimbursed travel” was indistinguishable from the DOL-endorsed phrase “some positions may require travel.” BALCA stated it was obvious from the advertisements that “not all of the Marketing and Product Manager positions required travel.” The board did not think any of the advertisements were misleading and would prevent any US job applicant from applying for the positions.

BALCA En Banc Panel Says Proof of Job Order Publication Is Not Required

July 9, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Tile Setter.”

After obtaining & examining an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification ordering the Employer to submit copies of its State Workforce Agency (SWA) job order. This included a copy of the job order placed with the SWA serving the area of intended employment downloaded from the SWA Internet job listing site, a copy of the job order provided by the SWA, or other proof of publication from the SWA containing the content of the job order. The Employer replied to the Audit by providing a photocopy of a completed “Employer Job Order Information Sheet” from VaEmploy.Com.

The CO denied the labor certification citing the Employer’s failure to provide proof of publication of the job order from the SWA containing the content of the job order. He believed the copy of the VaEmploy.Com sheet did not indicate the ultimate content of the SWA job order. In addition, the CO thought the “Order Information” sheet did not prove the SWA published the job order. He cited PERM regulation 20CFR 656.20(b) as the governing source of his denial. PERM regulations require “an employer filing for permanent labor certification to place a job order with the State Workforce Agency (SWA) serving the area of intended employment” for a period of 30 days.

The Employer requested a reconsideration of the denial arguing that the PERM regulations establish that the SWA job order is verified by the start and end date as listed on the labor certification application. In order to try to obtain evidence of the placement of the SWA job order, the Employer contacted the Virginia SWA. They were sent an e-mail response from an SWA representative stating that the older job orders were deleted out of the database. The Employer included a copy of this e-mail in its reconsideration request.

Once again, the CO denied labor certification and forwarded the case to BALCA for its own review of the case. Upon review, BALCA confirmed the denial because the Employer neglected to present the mandatory documentation demanded by the CO in his Audit Notification. BALCA believed that the Employer needed to give an actual copy of the SWA job order.

The Employer was not satisfied with BALCA’s decision and requested “en banc review” of the case. They argued that they completely fulfilled all of the PERM regulations obligations. The Employer cited another panel decision, the “Mandy Donuts Corp” case. This case was very similar to the Employer’s. In the “Mandy Donut’s” case, the panel overturned a CO’s decision to deny a labor certification on the basis of an Employer’s failure to provide proof of an SWA job order. The Panel cited that PERM regulations only entail placement of a SWA job order for 30 days. This placement must be verified by the opening and closing dates on the labor application.

In order to help resolve this case, BALCA invited members of the American Immigration Lawyers Association (AILA) and the American Immigration Council (AIC) to contribute to the review. All parties filed briefs with their interpretations of the case. The CO thought the “Mandy Donuts” decision was not relevant to the case. He reiterated his stance that the Employer needed to provide an actual copy with the content of the SWA job order. AILA filed a brief in response to the case. They believed that the Employment & Training Administration (ETA) comments about regulations, during the ruling, indicate the Employer is not required to submit the actual (SWA) job order. Since specific documentation is not listed in the regulations, the CO should not “deny certification for failure to submit a copy of the job order.”

After listening to all of the briefs and arguments in this case, BALCA reversed the CO’s denial of permanent labor certification. BALCA believed that the PERM regulations do not insist on employers providing evidence of an SWA job order. Specifically, the PERM regulations require: Placing a job order with the SWA serving the area of intended employment for a period of 30 days. The start and end dates of the job order entered on the application serve as documentation of this step. 20 C.F.R. § 656.17(e)(2)(i).

BALCA on Definition of College or University Teacher

July 2, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Instructional Coordinator.”

After reviewing an Employer’s Application for Permanent Labor Certification, the CO denied the application, without audit or a request for additional information, stating that the position did not qualify as a college or university teacher. The CO considered the Instructional Coordinator position as a professional occupation for which the Employer was required to conduct additional mandatory recruitment efforts.

The Employer sent a reconsideration request to the CO. In its argument, the Employer reaffirmed that the position was a university instructor. They submitted additional documentation to support their claim. They provided a detailed description of the position covering the job duties and experience qualifications. This description mentioned “effective teaching in the library instruction program.” The second piece of evidence included a memorandum from the Dean of the University Libraries. In his memorandum, the Dean summarized the Applicant’s position as a Faculty Member in the Division of Library Services, discussed the Applicant’s responsibilities as an Assistant Professor and referred to the Applicant as “an excellent classroom teacher providing effective, creative and critical learning experiences for our students.”

*These two pieces of evidence were allowed for consideration, under § 656.24(g)(2)(ii) because they existed at the time of filing, and were maintained to support the application. The CO had not previously given the Employer an opportunity to present these documents as evidence, so the Employer properly submitted them in its request for reconsideration.

The CO forwarded the case to BALCA for review stating the additional evidence did not change his decision. He stressed that the job duties were not those involved in “teaching, evaluating and advising students within an assigned instructor workload in a classroom setting.” The CO’s statements were not supported by any documentation. Regulation § 656.18 does not define “college and university teachers,” nor does it refer to any required principal duties or job description.

After BALCA’s assessment of the case, the Labor application was sent back to the CO for processing. The Board believed that the Employer presented enough information to illustrate that the “Instructional Coordinator” position was that of a university professor under PERM regulations § 656.18.

BALCA Vacates Denial Notwithstanding Incomplete ETA 9089

June 26, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Medical & Clinical Laboratory Technologist”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification demanding the employee’s work credentials. The Employer sent the worker’s qualifications including prior work experience from his former employer to the CO for review.

Upon review of the Audit response, the CO denied the Labor Certification Application. The CO believed the credentials recorded on the application did not match the position’s minimum job requirements. The Employer sent a reconsideration request to the CO. In the argument, the Employer stated that the employee had the required two years of previous work experience, and included again for the record, documentation of the beneficiary’s previous work experience. Additionally, since the company opened in 1998, they had not hired anyone with less than two years’ experience for this position.

Once again, the CO denied certification because the Employer did not list the employee’s qualifying experience on the Labor application. The CO forwarded the case to BALCA for review requesting confirmation of his rejection.

After BALCA’s examination of the case, the administrative judge sent the case back to the CO for processing. The Board believed that the CO declined to study all of the Employer’s documentation prior to reaching his decision to deny. Even though the Employer did not include the entire employee’s prior work experience in the Labor Application, BALCA took into consideration the evidence submitted in the Audit & reconsideration responses. This evidence clearly indicated the employee’s qualifications exceeded the minimum requirements for the position.

BALCA Rejects CO’s Strict Specifications for Ad Copies

June 20, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Home Health Care Aide”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. He asked the employer to provide more information about their print advertising for the job.

The CO denied the application declaring that the Employer failed to deliver sufficient documentation for the mandatory print advertisements. The Employer did not provide copies of the advertisement that contained both the name of the newspaper as well as the date of publication, He cited the Employer was in violation of PERM regulation 20 C.F.R. 656.17(e)(1)(i)(B)(3) and 656.17(e)(2)(ii)(C).

PERM regulation 20 C.F.R. 656.17 (e)(2)(ii) requires that the newspaper advertisements must be placed on two separate Sundays. This is to ensure US workers can be provided the opportunity to apply for these positions.

The Employer requested BALCA review proclaiming that it submitted proper evidence in its Audit Response. The Employer submitted two pages of newspaper copies in its audit response. One of the pages shows the advertising text and the other page displays the name of the newspaper and the date. The Employer also presented screen shots from the newspaper’s online web page.

After BALCA’s examination of the case, the case was sent back to the CO for further examination. Even though the advertising content does not seem to fulfill the PERM regulations at 656.17 (f), they believed the copies of the newspaper pages as well as the screenshots satisfied the obligation for the recruitment phase. The Board gave the CO “instructions to consider whether the content of the Employer’s newspaper advertisement satisfies the requirements of 656.17(f).” This PERM regulation expects the newspaper ad to contain the name of the employer, location & a specific description of the job. The Employer’s ad did not name the employer, location or provide a detailed description of the position.

BALCA Reverses Denial, Finds Nexus between Ads and Position on ETA 9089

June 11, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently reversed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Business Development Specialist.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied certification because the job title recorded in the two newspaper advertisements communicated the job title as “Business Development VP” as an alternative to “Business Development Specialist.” The CO thought this inconsistency was an infringement of PERM regulations 20 C.F.R. § 656.10 and 20 C.F.R. § 656.17(f)(3).

PERM regulation 20 C.F.R. § 656.10(c) (8) requires the petitioning employer to demonstrate that the job has been visibly accessible to any U.S. worker. The PERM regulation § 656.17(f)(3) requires any print advertisement to specifically detail the job requirements in order to give US workers the chance to apply for the position.

The Employer requested reconsideration of the denial arguing that the job titles were significantly the same. They believed that any job hunter would have clearly understood the posting. The Employer stated the term “VP” is regularly used in job listings because it is more enticing than the word “Specialist.” By using the word “VP”, the Employer believed they would get more candidates to apply for the position.

Upon reconsideration of the employer’s arguments, the CO confirmed his denial of the labor certification. In a letter, he stated the job headings in the ads were drastically distinctive from the headings in the Labor Certification Application. The Employer requested BALCA review of the CO’s denial repeating the same information that they listed in the reconsideration.

In each of the CO’s denials, he did not analyze the Employer’s claims. Even though the Employer made logical arguments, the CO believed the job titles were distinct and it was the end of the story. He did not seem to want to hear the Employer’s opinions.

After a review of the case, BALCA sided with the Employer. They thought the job titles in the advertisements did not unfairly take away job opportunities for US workers. Denial of labor certification in this matter was reversed and the Labor application given back to the CO for certification.

BALCA Says Wall Street Journal Is a Newspaper of General Circulation

May 22, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Producer.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. It required the Employer to show proof of the State Workforce Agency’s (SWA) job order as well as all resumes received in connection with the position. The Employer responded and the CO continued to review the application.

The CO denied the application based on two different PERM regulations. PERM regulation 20 C.F.R. 656.17 (e)(1)(i) requires that “two print advertisements are mandatory for all applications involving professional occupations.” These advertisements must run on two different Sundays in the area of intended employment. The Employer placed the ad for the Producer position in the Wall Street Journal (WSJ), which does not qualify as a professional journal, and could not be used in lieu of the mandatory Sunday advertisements as required by the PERM regulations, because the ad was not run on a Sunday. Furthermore, the CO indicated in his denial that the employee did not meet the minimum requirements of the position. He cited PERM regulation 20 C.F.R. 656.17(i)(1).

After the denial, the Employer requested review of the case. The Employer believed the US Department of Labor had unselectively concluded the WSJ did not meet the requirements of a professional journal. In addition, they tried to use an expert’s opinion of the paper as evidence. With regards to PERM regulation 20 C.F.R. 656.17(i)(1), the Employer believed that his Employee “more than exceeds the requirements of the position.”

The CO forwarded the appeal to BALCA for review of the case arguing that the WSJ was only a general circulation newspaper. Since the paper has a widespread circulation beyond the professional market as well as other sections including news, politics and editorials, it clearly demonstrates the characteristics of any other broad-spectrum distribution newspaper. BALCA ordered the denial of labor certification.

BALCA on Text of Radio Advertisements

May 9, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Literary & Media Specialist”.

The CO denied the application stating that the Employer failed to provide sufficient documentation of a radio advertisement. He cited it was in violation of PERM regulation 20 C.F.R. 656.17(e)(1)(ii)(J).

PERM regulation 20 C.F.R. 656.17(e)(1)(ii)(J) expects employers to provide a copy of an advertisement as well as a written confirmation from the radio or television station stating when the ad was aired.

The Employer requested a review of the CO’s denial stating that they submitted a complete CD audio recording of the actual on-air advertisement. The CD was clearly labeled with the date of the ad as well as the title “Radio Proof” and the Company’s Name. In addition, the employer supplied an advertiser’s tear sheet that showed the ads were aired on two separate time frames on WAXQ-FM. Both the CD and the tear sheet reflected the name of the Employer and the Advertising agency. The Employer also presented the radio ad’s invoice which indicated the name of the radio station, advertiser, company name and the exact same number of radio spots as the tear sheet.

The CO forwarded the appeal to BALCA for review of the case by arguing that the Employer did not submit the actual advertising text.

Upon examination of the case, BALCA believed “the audio recording provided of the ad text is by definition a copy of the employer’s text.” They could not find reason not to accept it as sufficient documentation under PERM Regulation 656.17(e)(1)(ii)(J).

BALCA returned the application to the CO with instructions to certify it.

BALCA Reverses Denial, Finding 3 out of 4 Recruitment Steps in Compliance

May 8, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Battery Engineer.”

The CO denied the application stating that the Employer’s web posting did not identify the job location. He cited it was in violation of PERM regulation 20 C.F.R. 656.17(f). PERM regulation 20 C.F.R. 656.17 (f) requires that an advertisement must indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.

The Employer requested a review of the CO’s denial stating that the company conducted four additional recruitment steps rather than just the three that are required. In the recruitment process, they posted the position on a job search website, advertised in a local newspaper, advertised through their employee referral program, and posted the job position on their company website.

The Employer argued the location of the employment could be found on their website and they had only one geographic location. As proof, the Employer presented documentation to show that its location was completely revealed on its “Contact Us” page.

The CO forwarded the appeal to BALCA for review of the case. Upon review, it was ordered that “the denial of labor certification in this matter be reversed & remanded for certification.” BALCA cited the following reason for its decision. “Even though the Employer’s advertisement on its own website did not comply with the regulations, the Employer conducted three additional recruitment steps that are in compliance.”

BALCA Finds CO’s Claim that ETA 9089 was Incomplete Untenable

April 29, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Computer Software Engineer.”

The CO denied the application stating that the Labor application is incomplete and inconsistent with the submitted information from the employer and the applicant. On the Labor application, the Employer’s physical address is listed as Martinsburg, West Virginia but their phone number’s area code is Arlington, Virginia. The applicant’s home address is listed in Martinsburg, West Virginia but his phone number’s area code -571 is representative of Leesburg, Virginia. As additional proof, the CO declared the Employer had signed in Section N, of the LCA, that the information submitted was “true and accurate to the best of its knowledge.”

Perm regulations require an employer seeking to apply for permanent labor to file an ETA Form 9089.20 C.F.R. & 656.17(a). These regulations state that any incomplete applications will be denied.

The Employer stated that in the past, the company was located in the Falls Church area but moved to West Virginia. After the move, the company wanted to maintain the same phone number. This phone number is internet based by Vonage instead of a physical telephone line. In order to try to prove the information was accurate, the Employer submitted phone records and Lease agreements that displayed the address and phone number.

In the case of the Applicant, the Employer responded that the Alien lives in Martinsburg but uses a cellular telephone with the 571 area code. The Employer submitted AT & T phone records, the applicant’s rental agreement and driver’s license reflecting the Martinsburg address.

The CO forwarded the case to BALCA for review. Upon review of the case, the administrative judge ordered that “the denial of labor certification in this matter is vacated.” BALCA believed the evidence submitted by the Employer to be highly persuasive.

The judge sent the application back to the CO for further processing.

BALCA Discusses Advertisements Placed by Private Employment Firms

April 23, 2013

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification for the position of “Latin American Refining Prospect Director.”

An Audit Notification was issued by the CO to the Employer requesting them to submit its recruitment documentation. A response to the request was submitted by the Employer. The Employer stated that it conducted three additional steps in its recruitment process, including listing the job opportunity with a private employment firm. In the response, they explained they were unable to find applicants and received zero resumes that met the minimum qualifications for the position. The job requirements were a Master’s Degree in Business Administration or Chemical Engineering and 10 years of experience in the position or a managerial/executive position in the petroleum/refining industry. In its response, the Employer also submitted a copy of the Recruiting Firms’ advertisement. The ad included an extensive job description, educational & experience requirements as well as the location of the job opportunity. However, the advertisement did not mention the company by name.

The CO stood by his original decision citing the Employer failed to provide adequate documentation of its recruitment through the Recruiting Firm. In addition, the recruiting firm failed to identify the name of the Employer in its advertisements. The CO cited 20 C.F.R. & 656.10(c). It provides “the employer to attest that the job opportunity has been and is clearly open to U.S. workers.” In addition, the CO listed 20 C.F.R. & 656.17(f) (1) for the regulatory bases for denial. It “requires that advertisements name the employer.”

The Employer requested reconsideration of the case stating his company hired a private employment firm to handle recruitment of the position. It is the employment agency’s policy to omit the name of the employer in all advertisements.

After reviewing the case, the CO again denied the Employer’s application. The CO stated it was necessary for an employer’s name to be included in all job advertisements to ensure the employer’s test of the labor market was legitimate. He cited 69 Fed. Reg 77326, 77248,”advertisements naming the employer are more likely to represent bona fide openings or vacancies.”

The Employer filed an appeal with BALCA. In the appellate brief, the Employer argued that if a company is listed in an advertisement, the applicant may decide to bypass the employment firm and contact the employer directly. This would defeat the purpose of using a recruiter in the first place. For this appeal, the CO filed a statement of position arguing that “without the inclusion of all the content requirements in Section 656.17(f), including an employer’s name, the greatest number of able, willing, qualified, and available US workers will not be apprised of the job opportunity.” Since the Employer’s name was not listed in the advertisement, the CO’s ability to verify the availability of US workers was flawed.

After reviewing the case, the BALCA panel ordered that the CO’s determination to be reversed. They granted Labor Certification to the Employer based on several facts. First, they believed that the placement agency’s advertisement provided a lengthy description of the job opportunity; title, job location; as well as the educational & experience requirements for this job. In addition, the Employer provided evidence to show “blind advertisements are the usual method by which a private employment firm advertises a job.”

MVP "Immigration Q & A Forum" - This Friday, August 17, 2012

August 13, 2012

We wanted to find a new way to engage our reader base. Every other Friday, we will post the ten (10) best/most frequently asked questions received during the week from our h1bvisalawyerblog, Facebook, and Twitter readers. We will answer those questions and provide the Q&A on our H-1B Visa Lawyer Blog.

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, DREAMers, priority dates, the monthly visa bulletin, adjustment applications, etc., please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, August 17, 2012. Act now and submit your questions!

THANK YOU!

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. Therefore, your communication with us through this forum will not be considered as privileged or confidential.

MVP "Immigration Q & A Forum" - This Friday, August 3, 2012

July 30, 2012

We wanted to find a new way to engage our reader base. Every other Friday, we will post the ten (10) best/most frequently asked questions received during the week from our h1bvisalawyerblog, Facebook, and Twitter readers. We will answer those questions and provide the Q&A on our H-1B Visa Lawyer Blog.

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, DREAMers, priority dates, the monthly visa bulletin, adjustment applications, etc., please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, August 3, 2012. Act now and submit your questions!

THANK YOU!

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. Therefore, your communication with us through this forum will not be considered as privileged or confidential.

BALCA Constrained Procedurally to Affirm Denial

August 17, 2011

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

The CO denied the application stating that the journal used to advertise the position was not a recognized journal on websites and does not qualify as a professional journal. The Employer accordingly made a request for review of the denial stating that it fulfilled its obligation to advertise as indicated in the regulations and that the magazine, Computer, is a recognized professional journal. In its request for review the Employer included six pages of information from the IEEE website, which states that “for more than 40 years, developers, researchers, and managers have relied upon Computer for timely, peer-reviewed information about research, trends, best practices, and changes in the profession.” The CO forwarded the case directly to BALCA as a request for reconsideration was not made by the Employer.

PERM regulations 20 C.F.R. § 656.17(e)(1)(i)(B) and 656.17(e)(2)(ii) control and provide: sponsoring employers are normally required to attest to having placed two print advertisements on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the worker likely to apply for the job opportunity. However, an exception under 20 CFR § 656.17(e)(1)(B)(4) provides that if the job requires experience and an advanced degree and a professional journal would normally be used to advertise the job opportunity, the employer may substitute one of the Sunday advertisements for an ad in the professional journal most likely to bring responses from able, willing, qualified and available U.S. workers.

In the instant case, because the Employer did not initially make a request for reconsideration from the CO, BALCA was limited by 20 CFR § 656.27(c) and had to analyze the record based only on the evidence upon which the CO’s denial was made. Therefore, the six page document provided by the Employer could not be reviewed by BALCA. The Board was forced to affirm the denial even though they believed that the CO was arguably incorrect in his determination that Computer magazine was not a qualifying professional journal.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

Remanded – Did the CO elevate form over substance?

August 10, 2011

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

A selection was not made for Section M-1, which concerns whether or not the application was completed by the Employer. The CO denied certification citing the omission of a response for Section M-1. The Employer requested reconsideration or review of the denial and submitted an amended form. The CO did not reconsider its decision and the case was forwarded to BALCA on April 30, 2010.

PERM regulation 20 C.F.R. § 656.17(a) provides that incomplete applications will be denied. Further PERM regulation 20 C.F.R. § 656.11(b) provides that once an application is filed, requests for modifications to the application will not be accepted.

In the instant case, the facts as presented are similar to those found in a 2010 BALCA decision, Gunnels, 2010-PER-626 (November 16, 2010) where an Employer had neglected to check the box in Section M-1, but similarly provided a preparer’s name and signature, thereby signifying that someone other than the Employer had filled out the application. In Gunnels, the Employer made a request for reconsideration, but titled it “Request for Review”. In that decision, the BALCA panel determined that the CO abused its discretion and elevated form over substance in refusing to reconsider the denial. Here, the Employer merely neglected to check a box in M-1, but provided the preparer’s name and signature. Whether the CO abused his discretion depends upon whether he denied the Employer the opportunity to be heard on its legal argument.

Accordingly, the Board remanded to provide the CO the opportunity to reconsider the issue.

Issue: Where an Employer receives two different PWDs based on its primary and alternative minimum requirements, which PWD must the employer use?

August 8, 2011

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

The Employer listed the minimum requirements as a Bachelors degree plus 5 years of experience in the position offered, or in the alternative, a Masters degree plus 1 year of experience in the job offered. The prevailing wage for the position listed in the application was $34.67 per hour. After receiving the Employer’s Application, the CO issued an Audit Notification. The CO denied certification citing that the PWD listed on the application was different from that provided in the Audit response. The audit response provided a PWD of $46.16 per hour. The Employer requested reconsideration and provided the PWD consistent with the wage listed on the labor application. The $34.67 per hour wage was based upon a separate PWD containing the primary requirements of Bachelors degree plus 5 years experience; and the $46.16 per hour wage was based upon another PWD containing the alternative requirements of a Masters degree plus 1 year experience. The CO denied reconsideration providing that the PWD submitted in the audit response did not match the prevailing wage listed in the labor application. The case was forwarded to BALCA and the Employer filed a State of Intent to Proceed on August 3, 2010.

PERM regulation 20 C.F.R. § 656.1(a)(2) controls and provides that labor certification can only be granted if the employment of the foreign worker will not adversely affect the wages and working conditions of U.S. workers who are similarly employed.

In the instant case, the facts present a clear example of how certification of the foreign worker could have an adverse effect on the wages of U.S. workers. The foreign worker has a Bachelors degree plus 5 years of experience and ought to be paid the amount that similarly situated U.S. employees earn in this position in the same area of intended employment, $46.16 per hour. Here, employment of the foreign worker could have an adverse effect on the wages of U.S. workers similarly employed that have a Bachelors degree plus 5 years of experience, since the Employer is only offering $34.67 per hour for this position. Accordingly, the proper PWD in such a situation is not the PWD that matches the “primary” or “alternative” job requirements; rather, the proper PWD is the higher of the two PWDs.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

MVP LAW GROUP – Immigration Q&A Forum, Friday, July 22nd, 2011

July 22, 2011

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.


Question #1 – Employment Based Immigration – Green Card
My employer appealed my denied labor to BALCA. My employer just got notice that my appeal has been docketed. When will I get a decision?

Answer #1
According to the United States Department of Labor website, it is approximately taking up to two (2) years for a case to be reviewed by BALCA from the date of filing the appeal.


Question #2 – Temporary Travel as a Non-Immigrant
I have an H1B visa stamped on my passport, which expires in Feb. 2012. I am planning to travel outside of the country in Sept. The agency where I work has applied for Adjustment of Status and filed an I-131 form, but I don't have the documents to travel. Can I travel? without this documentation and re-enter just with my H1B visa? Thank you!

Answer #2
Yes, you may travel on your H-1B visa, IF and ONLY IF you are presently still working for your H-1B employer. If so, you may use the H-1B visa stamp and re-enter the U.S. as an H-1B nonimmigrant and resume employment with your H-1B employer. However, you should carry with you a copy of your entire approved petition, along with an updated employment verification letter, most recent paystubs, employment agreement, just to be safe. If not, you must wait for the Advance Parole document to be approved before you may exit the country and attempt to re-enter.


Question #3 – Employment Based Immigration – Green Card
I filed for AOS based on employment. I moved six months after filing concurrently, I-140 and I-485 applications. My fingerprint notice was sent to my old address and then I received a notice in the mail that my I-485 had been denied due to abandonment. (An old friend lives at my old address). I subsequently re-filed the I-485. Some of my friends say this re-filing could have been avoided? How?

Answer #3
If you move while a case is pending with the USCIS, under Section 265 of the Immigration and Nationality Act (8 U.S.C. 1305), you must submit Form AR-11 within 10 days of your move to a specific address provided by the USCIS. If you fail to update your address with the USCIS, correspondence may continue to be sent to your old address and if you fail to respond within a timely manner, it could result in a denial or seriously affect the processing of your case. You could have avoided this situation by simply updating your mailing address online or by submitting Form AR-11 to the USCIS. As explained to you in the I-485 denial, failure to show at a scheduled fingerprint appointment without prior notice is considered abandonment of the application and may result in a denial. With the facts provided, it seems that by the time you received the fingerprint appointment notice and I-485 notice concerning denial, it was beyond the time required to submit a response in a timely manner. Accordingly, you re-filed your I-485 application. Next time, I would recommend you contact an experienced Immigration Attorney.


Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
I had gone for visa stamping and was issued 221(g) blue form. This is the reason given: "Your petition is not currently reflected in the PIMS database. Processing of your case will be suspended until we can verify your petition details." I am worried, is this normal?

Answer #4
It is a normal process and there is no reason to be alarmed, this is a standard procedure, so unfortunately, you must wait until your status/case can be confirmed and then you will receive your visa stamp. As stated below by the DOS, extensions of stay and change of status petitions take longer to verify through the database.

The U.S. Department of State (DOS) has instructed consular posts that approvals of H, L, O, P and Q visa petitions must be verified through the Petition Information Management Service (PIMS) before a nonimmigrant visa can be issued. PIMS is an electronic report generated by DOS’s Kentucky Consular Center that collects nonimmigrant visa petition approval information from USCIS. PIMS contains data on initial petition approvals and on L blanket petitions that were approved in 2004 or later. PIMS does not contain information on approvals of extension of stay or changes of status petitions. Consular officers adjudicating visa applications must consult PIMS to verify the approval of the underlying nonimmigrant visa petition. If the petition approval cannot be verified through PIMS, the officer must contact the Kentucky Consular Center, which in turn attempts to verify the approval through USCIS’s Computer Linked Applications Information Management System (CLAIMS).

DOS officials state that PIMS verification typically takes no more than 24 hours and that verification through CLAIMS typically takes two business days. Most cases involving initial nonimmigrant visa petitions are verified within these timeframes. However, they have received many reports of longer processing times for extension of stay and change of status cases. These cases must be verified with the assistance of the Kentucky Consular Center and can take longer to be processed. DOS has indicated that there are no current plans to include extension and change of status approval information in PIMS, which may result in significant delays for many applicants. Foreign nationals who will be applying for nonimmigrant visas should expect longer processing times due to the new PIMS and CLAIMS verification requirement. How long the electronic process will take may vary from case to case. However, same-day and next-day visa issuance should not be expected.


Question #5 – Employment Based Immigration – Green Card
Please explain to me what “priority date becoming current” means?

Answer #5
In order for an individual to obtain an immigrant visa, a visa number must be available to you. This is referred to as the priority date being "current." The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department's monthly Visa Bulletin. This Bulletin is accessible at www.travel.state.gov. If there is a backlog in the preference category in which you were filed in, this means, that you must wait until a visa becomes available, until your priority date becomes current. When your priority date becomes current, you may file the I-485 application, but until then, you must wait.


Question #6 – Employment Based Immigration – Green Card
My husband received his GC and his last name is spelled wrong on the card. How do I fix it?

Answer #6
You will need to file Form I-90, Application to Replace Permanent Resident Card. If you believe this was an administrative error on the part of the USCIS, you will need to check box d in Part 2, number 2 of the application. Along with the Form I-90 and accompanying filing fee please attach the incorrect card and evidence of the correct information (original birth certificate; passport; previous approval notices, etc). You will need to submit the USCIS filing fees (made payable to the “U.S. Department of Homeland Security”) even though you believe it was an administrative error. If you send the form with accompanying documentation without the filing fees, the case will be returned until you provide those fees. If the USCIS agrees that the error was administrative in nature, they will issue a new card and return the filing fees.


Question #7 – Immigration Options for a Nanny
I am looking to hire a Nanny for my twin daughters who are 18 months. What options are available?

Answer #7
The options for hiring foreign-born nannies are very limited, but there are options. Options available: J-1 Visa, H-2B Visa, and Sponsorship of the Foreign Worker as a Skilled Worker under the EB3 Preference Category (Employment Based Immigrant Visa – Green Card). You should consider each option and the possible benefits and drawbacks of each option. Unfortunately, the EB3 preference category for Skilled Workers is oversubscribed, and accordingly, this option will take years and thus may not be the best available option considering your children may be 10 years old by the time an Immigrant Visa number becomes available for the sponsored Nanny.


Question #8 – Visa Bulletin
I always check the visa bulletin and the movement varies. One time, there was a 3 month movement and the next time it was just 22 days, then a month. Why is that so?

Answer #8
Each month, the State Department issues the visa bulletin, usually in the middle of the month. When the bulletin is issued, it will provide information that will take effect on the first day of the following month. Depending on the availability of immigrant visas, the priority dates in each category and for each country can change each month. However, please note that the priority dates can also stay the same. They can move very slowly or progress by several months or years. They can move forward or backward. Therefore, there is no way to anticipate what the priority date will be in a future month or when a category will become current.


Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
One of our employees is going on vacation from 08/15-09/10 and we are getting his h1b ext. in October and he has to go for visa in home country and he is requesting us to premium process his H1 ext. and wondering whether we can do it right now and can get approval before he leaves and he wants to appear for Visa with the new one. Please suggest whether we can do it right now or can we do it after he comes back from the vacation.

Answer #9
The answer to your question depends upon the specifics of your case; whether an end client will need to be obtained and if it can be obtained within the time period, whether forms and filing fees can be returned within a reasonable time; whether the LCA will be certified within the time frame given; etc. There are many circumstances that will need to be considered before a final decision is made on whether to prepare and file the extension now or wait until the return of the beneficiary to the U.S. We can file cases with the USCIS within 6 months of the current visa's expiration. Therefore, if his current H-1B expires on 10/2011, you could prepare and file the extension case now. Knowing the above information, please consider all of the circumstances of the case before you make a decision to proceed forward.


Question #10 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H-1B nonimmigrant visas remain under the CAP?

Answer #10
As of July 15, 2011, there were approximately 44,500 H-1B Regular CAP subject nonimmigrant visas remaining and 7,200 H-1B Masters Exemption nonimmigrant visas remaining. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2012 H-1B Cap updates, please refer to our www.h1bvisalawyerblog.com.


MVP Law Group would like to thank everyone who contributed a question or comment.

Our next “Immigration Q & A Forum” is scheduled for Friday, August 5th, 2011!

Please remember to submit your questions/comments on our h1bvisalawyer blog.

BALCA Says Wall Street Journal Is Not a Professional Journal

July 5, 2011

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

After receiving the Employer’s Application, the CO issued an Audit Notification. After receiving the audit response, the CO denied certification citing the fact that the journal the Employer used to advertised the position did not qualify as a professional journal and therefore did not satisfy the regulation. In the request for review, the Employer’s representative argued that the advertisement of the position in The Wall Street Journal did qualify as a professional journal. The case was forwarded to BALCA and the Employer filed a State of Intent to Proceed on June 24, 2010.

PERM regulation 20 C.F.R. § 656.17(e)(1)(B)(4) controls and it provides that if the position being offered requires experience and an advanced degree, a professional journal must be used to advertise the job.

In the instant case, the Employer tried to argue that The Wall Street Journal is a leading business journal; however BALCA found that it was in fact a widely read and respected newspaper – a newspaper and not a professional journal. Therefore, the Employer did not fulfill the requirement set by the PERM regulations to advertise in a professional journal.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

BALCA Affirms Denial, Finds Recruitment Report Insufficient

July 1, 2011

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Software Engineer, Applications.”

An Audit Notification was issued by the CO requesting evidence of the Employer’s recruitment efforts. In the response to the audit submitted, the Employer included copies of Form ETA 9089 with original signatures, a statement of business necessity, a copy of the internal Job Posting, and other recruitment documents. The application was denied by the CO on the grounds that the Employer only completed 2 of the required 3 recruitment efforts for professional occupations. A request for review was submitted by the Employer who cited that in the CO’s “Reason for Denial” letter the wrong case number was used. A revised “Reason for Denial” letter was submitted by the CO with the correct case number included and it provided the reason for denial was the fact that the Employer did not submit its recruitment report. In another Request for Review, the Employer argued that the original response to the audit did include the recruitment documentation and recruitment report. The case was then forwarded to BALCA after the CO found the Employer did not overcome the original deficiencies in review of the case.

PERM regulation 20 C.F.R. § 656.17(g) controls and it provides that all employers must prepare a recruitment report, and in the event the CO notifies the employer that its application is to be audited, the employer must submit the report prior to a final determination. This report must also be signed by the employer or the employer’s representative and that individual must be the person who normally interviews or considers, on behalf of the employer, applicants for job opportunities.

In the instant case, the Employer failed to submit a recruitment report in response to the CO’s Audit Notification, the Employer’s response only included the statement, “There were no qualified U.S. workers who applied for this job opening.” Additionally, the statement was only signed by the Employer’s attorney, not the Employer. As a result of the Employer’s failure to sign the report, he did not attest to the results of its recruitment efforts.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

BALCA Finds No Business Necessity for 2-Year Experience Requirement for Cook

June 29, 2011

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

On ETA Form 9089 the Employer listed 2 years as the minimum amount of experience required for the position. Certification was denied by the CO on the grounds that the Employer did not select the name of the newspaper for the second advertisement in Section I-11. In a request for review, the Employer argued the omission was inadvertent and the “New York Daily News” should be inserted and included copies of the advertisement. An Audit Notification was then issued by the CO who stated that the minimum requirements set by the Employer exceed the SVP level assigned by O*NET. In order for the Employer to list requirements higher than those set by SVP, he must demonstrate that the additional requirements are essential for the position. The Employer submitted its response to the Audit and explained the business necessity for the additional requirements. The Employer stated that in the past when he had hired individuals with less than two years experience their skills were unsatisfactory and “they lacked knowledge to put together the necessary menus.” However, the CO denied certification due the fact that the Employer did not respond to the Audit before the specified date of 3/31/2008. The Employer wrote back arguing that a response was sent on March 12 and that a Federal Express Receipt show the audit team received it on March 14. Again the CO denied certification going back to the original reason for denial that the Employer exceeded the requirements set by the SVP level and did not adequately prove a business necessity for the additional requirements. In request for review the Employer submitted letters from other restaurant owners who require a minimum of two years experience, pages from the O*NET website and Dictionary of Occupational Titles showing a SVP of 6 for a cook position. The CO found the Employer’s response did not overcome the deficiencies and the documentation the Employer submitted was new evidence. The case was then forwarded to BALCA and a Notice of Docketing was issued.

PERM regulation 20 C.F.R. § 656.17(h)(1) controls and it provides that unless adequately established for business necessity, the job requirements must not exceed those set by the SVP level assigned by O*NET.

In the instant case, the Employer’s requirements for the position exceed those set by the SVP assigned by O*NET for the position of “Cook.” The letter from the Employer did not sufficiently prove business necessity for the additional experience requirement of two years. The Employer did prove business necessity but did so with evidence not within the record during the original denial; therefore it could not be considered.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

BALCA Questions Materiality of Omissions on the PERM Form

June 28, 2011

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

Certification was denied by the CO who cited that ETA Form 9089 was incomplete; specifically section F-4 (skill level) and M-3 (preparer’s title) had been left blank. A request for review was issued by the Employer who cited that the fields left blank were too minor to, “consider the form ‘incomplete’ and outright deny [the certification].” The Employer went on to further argue that in the past he had routinely left those same fields blank and certification had never been denied, therefore he should have the chance to correct the form. Included with the request for review, the Employer submitted corrected forms with the previously omitted fields completed. After the case was forwarded to BALCA and a Notice of Docketing was issued, the Employer filed a Statement of Intent to Proceed on April 23, 2010.

PERM regulation 20 C.F.R. § 656.17(a) controls and it provides that an Employer filing for labor certification on behalf of an alien must submit a fully completed ETA Form 9089 (Application for Permanent Employment Certification). Applications that are not complete or that have missing fields will automatically be denied.

In the instant case, the Employer argued that the omissions were so insignificant that they did not have bearing on the decision of certification. BALCA found that while regulation states all applications must be fully complete, “some omissions may not be material to the review of the substance of an application.” BALCA found that the Employer made a sufficient argument that the omissions were not material and were provided elsewhere on the form. Additionally the CO offered no argument as to why the omissions were needed in completing a sufficient review of the case to determine certification.

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

BALCA Assesses Feasibility of Training a U.S. Worker

June 27, 2011

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

An Audit Notification was issued by the CO to the Employer requesting a copy of the job order placed with the State Workforce Agency (SWA) and any other SWA related documents. A response to the audit was submitted by the Employer. Certification was thereafter denied by the CO on the grounds that the audit response material was insufficient to, “demonstrate that a U.S. worker could not be trained to qualify for the position.” The representative of the Employer requested a review of the case and argued that the owner’s illness, substantial growth and other factors prevented the Employer from training U.S. workers. The CO stood by his original decision and denied certification again. The case was then forwarded to BALCA and a Notice of Docketing was issued. In the Employer’s appellate brief, he argued an acceptable amount of evidence was presented to the show inability to train US workers for the position.

PERM regulation 20 C.F.R. § 656.17 (i)(3) controls and it provides, “the employer cannot require domestic worker applicants to posses training and/or expertise beyond what the alien possessed at the time of hire unless the employer can demonstrate it is no longer feasible to train a worker to qualify for the position.”

In the instant case, the Employer argued a “change in business conditions” was the prohibiting factor in training U.S. workers. In reviewing the case, BALCA did not agree with the Employer’s defense that it was impossible to train U.S. workers. Additionally, BALCA did not find that the Employer’s extenuating circumstances should have prevented the training of U.S. workers.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

BALCA Remands - Evidence of Employer's FEIN was Sufficient

June 22, 2011

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

The Employer’s Application was denied by the CO who found the company to be illegitimate because the Employer did not have a valid Federal Employer Identification Number (FEIN). The CO did not issue an audit notification. In the Employer’s request for review copies of its business license, FEIN documentation, certificate of liability insurance, and income tax returns were included. In the reconsideration of the decision, the CO stated the Employer did prove sufficient evidence verifying the business license but there was no documentation to support the Employer’s FEIN. The CO also pointed out that no response had been received by the Employer after request had been sent to the Atlanta National Processing Center for proof of the Employer’s FEIN. The case was forwarded to BALCA; however, the Employer did not submit an appellate brief. In the Statement of Position, the CO argued that because the Employer failed to produce any documentation validating its FEIN he was unable to determine whether the company was legitimate and therefore had to deny certification.

PERM regulation 20 C.F.R. § 656.24(g)(2)(i)-(ii) controls and it provides in a request for reconsideration of denial of labor certification an employer may submit documentation requested from the CO or documentation that the Employer did not have the opportunity to present when the application was originally filed.

In the instant case, certification was denied because the CO could not determine whether the company was a bona fide business entity. In reconsideration, documentation concerning the Employer’s FEIN was presented by the Employer that was not originally available at the time of filing. However, the CO still found that it could not determine if the company was bona fide. BALCA found that the Employer did provide information which lists the Employer’s FEIN and matches the number on the certification application, concluding that the CO’s denial was improper.

Accordingly, the Board vacated the decision of the CO in denying labor certification and remanded the matter for further processing.

BALCA Vacated Denial - Issue: Alternative Job Requirements

June 17, 2011

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

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

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

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

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

BALCA Affirms Denial - Issue: Alternative Job Requirements

June 15, 2011

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

Certification was denied by the CO who cited the applicant did not meet the position’s education requirements or the minimum experience qualifications. The Employer thereafter requested reconsideration on the grounds that the alien had attended a university for one year and had fourteen and one-half years of experience. The CO noted that with the given information and the employer’s formula, the alien’s education and experience would be equivalent to 17 years. This translates to 12 years of experience required as the equivalent for a Bachelor’s degree plus five years experience. However, according to the Field Memorandum NO. 48-94, Policy Guidance on Labor Certification Issues (FM) a Bachelors’ degree is only equivalent to two years of experience, therefore a Bachelor’s degree plus five years experience is only equivalent to seven years experience. Since the Employer’s requirement of 17 years of experience was not “substantially equivalent” to the primary requirements for the job, the CO denied certification. The case was then forwarded to BALCA and the Employer filed an appellate brief. In the appellate brief, the Employer argued that “17 years of experience” had never been listed on the application for the position of “product manager.” The CO submitted a Statement of Position stating the Employer also submitted the application too many days after the end date of the SWA job order, violating regulation.

PERM regulation 20 C.F.R. § 656.17(i)(1)-(2) controls and it provides that an Employer must represent the actual minimum requirements for the position on an application and an Employer must not hire individuals with less training or experience for a position than set by the requirements.

In the instant case, BALCA found the Employer’s formula for equivalent experience was “a gross departure” from that determined by FM. The Employer would have required 17 years while the FM formula only required 7 years as an equivalent.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

BALCA Affirms Denial - Lack of Evidence of Ability to Pay

June 13, 2011

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

The Employer was issued an Audit Notification by the CO who requested additional documentation of recruitment as well as its ability to pay foreign workers the wage offered. The evidence requested included state payroll taxes for the last three years, federal income taxes statements for the last three years, list of current employees with their titles, work contracts, etc. The Employer responded to the audit; however the CO denied certification on the grounds that the Employer submitted no documentation to prove the ability to pay the $48, 200 per year offered to the foreign workers. Review was requested by the Employer who argued that because it’s a consulting company the amount of money available depends on the funds generated by clients. Even after the letter of reconsideration, the CO still found that the Employer did not sufficiently prove its ability to pay the wage offered to the foreign worker. The CO cited that the Employer’s 2007 tax return was only $9,855 after operating costs. BALCA issued a Notice of Docketing and the CO’s appellate brief provided evidence to show that the Employer did not “have sufficient funds to pay the wage offered to the Alien.”

PERM regulation 20 C.F.R. § 656.10(c)(3) controls and it provides that one part of the labor certification process is that the Employer must sufficiently prove the ability to pay the salary offered to the alien.

In the instant case, the documentation provided contradicted the Employer’s claim that he could adequately pay the offered wage to the foreign workers. The Employer’s taxable income was negative after deductions and even before deductions it was around $40,000 short of the salary offered to the alien. BALCA found the Employer submitted no evidence to show he had enough funds to pay the wage offered to the Alien.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

BALCA Affirms Denial - NOF with Wage Equal to 99.51% of Prevailing Wage is Insufficient

June 9, 2011

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

On Form ETA 9089 the Employer listed the offered wage and prevailing wage at $67,787.00 per year. An Audit Notification was issued by the CO requesting documentation including a copy of the Notice of Filing (NOF). A copy of the NOF was submitted as the Employer’s response to the Audit, listing the rate of pay as $67,454.00 per year. The application was denied by the CO on the grounds that the NOF listed a lower wage than the prevailing and offered wage. A request for reconsideration was submitted by the Employer arguing that labor certification should not be denied “based solely on the deficiency less than .50% of the prevailing wage.” However, the CO still denied certification after reconsideration and the case was then forwarded to BALCA. In the Employer’s appellate brief, he argued that the amount of $333 difference between the prevailing wage and NOF listed wage should be forgiven, since it equals 99.51% of the prevailing wage.

PERM regulation 20 C.F.R. § 656.17(f)(5) and (7) controls and it provides the Notice of Filing must list a wage equal or exceed the prevailing wage entered by the State Workforce Agency.

In the instant case, the wage listed on the NOF is less than the prevailing wage and less than the wage offered to the alien. BALCA found the $333 difference clearly violated the statutory requirement and the regulations at Section 656.17(f)(5) and (7).

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

BALCA Remands for Materiality Assessment of Section M-1

May 24, 2011

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

In Section M-1 of Form 9089 where the employer is suppose to check whether they completed the application, the Employer failed to check either “yes” or “no”. The CO denied certification of the application on March 23, 2010 citing the fact that Section M-1 was not completed. The case was forwarded to BALCA after the Employer submitted a corrected copy of Form 9089, with Section M-1 complete. The Employer stated he was only seeking reconsideration of the case instead of a formal appeal in a letter to BALCA on August 2, 2010.

PERM regulation 20 C.F.R. § 656.11(b) controls and it provides that after July 16, 2007 no request for modifications to an application will be accepted.

In the instant case, the Employer did submit an amended and complete copy of Form 9089 after receiving the original denial from the CO. Under regulation however, modification to an application can no longer be used for reconsideration of an application. BALCA noted that the attorney for the Employer did fill out the certification below section M-1. The Board thereafter stated they have not, “made a finding whether failure to make a selection in Section M-1 is or is not material under the circumstances of this case.” BALCA declined to affirm or reverse the denial of the case, and instead sent it back to the CO for further consideration.

Accordingly, the Board remanded the decision of the CO in denying labor certification.

BALCA Affirmed Denial - Proof of Job Order Placement Required

May 20, 2011

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Maintenance and Repair Workers, General.”

The Employer’s Application for Permanent Employment Certification was denied on August 28, 2007 by the CO who cited that in section H of Form ETA 9089, the job opportunity listed was not offered to the alien in section J of Form ETA 9089. In the Employer’s request for review, he stated it was a careless mistake to check the “no” box in Section H16 instead of the yes “box”, referencing the view of Matter of Health America. An additional request was submitted by the Employer on September 11, 2008. An audit was then issued and the Employer was requested to provide documentation of the job order placed with the State Workforce Agency (SWA), a copy of the job order issued by the SWA or other evidence to prove publication by the SWA. The documentation submitted by the Employer was found unsatisfactory to the CO in proving the SWA ran the job order and certification was denied on August 26, 2009. After the case was forwarded to BALCA, the Employer filed a Statement of Intent to Proceed on January 12, 2010.

PERM regulation 20 C.F.R. § 656.17(e)(1)(i)(A) controls and it provides that one of the ways an Employer must inform US workers about a job opportunity is by placing a job order with the SWA in the area of intended employment for 30 days.

In the instant case, the Employer did not provide any of the documentation specifically requested by the CO’s Audit Notification to verify the job order placed with the SWA serving the area of intended employment. The documents the Employer did provide were not sufficient enough to conclude that the job order was received and published by the SWA.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

BALCA Affirmed - Must Document Employee Referral Program Recruitment Efforts

May 18, 2011

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Senior SAP Basis Technology Analyst.”

In the Employer’s Application for Permanent Employment Certification, three additional recruitment steps were listed because the job advertised was a professional position. The Employer’s ETA Form 9089 was audited on November 15, 2007. The CO requested recruitment documentation in the Audit Notification and the Employer responded to the audit with a screenshot of its internal job posting website. This screenshot included the dates on which the posting began and ended. Certification was denied by the CO on the grounds that documentation of the additional recruitment steps was insufficient as well as no employer notices or memorandum that specifically indentified incentives offered were submitted. A request for reconsideration was submitted by the Employer on June 18, 2009 who argued the screenshot qualified as sufficient evidence under the regulation. The Employer also sent information detailing the talent referral program in the request for reconsideration. The CO upheld his previous decision in denying certification even after the employer’s request for reconsideration and forwarded the case to BALCA on February 12, 2010. The CO filed his Statement of Position stating the Employer’s inability to submit documentation on time was a just cause for denial.

PERM regulation 20 C.F.R. § 656.24(g)(2)(i) ,(ii) controls and it provides that an Employer’s request for reconsideration may only include documentation that Employer originally did not have to opportunity to present or documentation the CO specifically requested.

In the instant case, the Employer had the opportunity to submit documentation of advertising and the specific incentives in the audit response but failed to do so. Additionally, evidence was submitted by the Employer in the request for reconsideration that was not previously submitted or asked for by the CO. Therefore the evidence cannot be used in the reconsideration of the case and the CO’s denial of certification was valid.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

BALCA Vacates Denial in the Interest of Fundamental Fairness

May 16, 2011

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

After accepting the Employer’s Application for Permanent Certification on October 26, 2007, the CO issued an Audit Notification which requested documentation of the Notice of Filing. The Employer responded to the Audit and submitted three pieces of evidence, but an actual copy of the Notice of Filing was not included. A status update of the case was requested by the Employer on June 9, 2008 since no reply had been given since the submission of the audit response. A second request for a status update was sent on November 25, 2008. The denial of the case was issued on December 9, 2008 by the CO who cited failure to produce a copy of the Notice of Filing as well as a difference in the wages listed on the Prevailing Wage Determination (PWD) and ETA Form 9089. The Employer submitted a request for review that included copies of the Notice of Filing and PWD. The Employer also stated in his request for review that the two documents were previously submitted in the audit response. Additionally, the Employer clarified a second PWD was acquired when it was realized the state department of labor had left the prevailing wage blank. However, the CO concluded the denial was valid on November 17, 2009. The CO argued that the Employer did not originally submit the Notice of Filing following the Audit Notification and the copy included in the request for review could not be considered as it was new evidence; however, the CO did accept the Employer’s explanation as to why the wage on the PWD and Form 9089 did not match. The case was then forwarded to BALCA and a Notice of Docketing was issued on December 7, 2009. In the appellate brief, the Employer argued that the Notice of Filing was included in the Audit response, suggesting it may have been lost. The Employer’s attorney also contested there was a copy of the Notice of Filing in her copy of the audit response.

PERM regulation 20 C.F.R. § 656.20(b) controls and it provides that an application can be denied by the CO if the Employer fails to provide the requested documentation following an Audit Notification.

In the instant case, the Employer did respond to the Audit Notification in a timely manner but the documentation submitted did not include the Notice of Filing, which the Employer suggests may have been lost or accidently left out of the response. BALCA found that the Notice of Filing was fully intended to be included in the audit response and its absence was either due to mistake by the sender or recipient.

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

BALCA Remands - Employer’s Job Search web advertisement met requirements of 20 CFR §656.17(f)

May 12, 2011

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

The CO issued an Audit Notification on October 2, 2007 requesting additional documentation in regards to the Employer’s recruitment efforts. The Employer responded to the audit by producing copies of its recruitment report and an ad listed on a job search website. Certification was denied by the CO because the recruitment done through the web site neglected to list the employer’s name, marking it as “confidential”. In a request for review, the Employer argued that the Employer’s full name and address were in fact listed on the ad at the following website http://hotjobs.yahoo.com. Though the Employer tried to prove the “advertisement could clearly be matched to the sponsored job opportunity,” the CO found the Employer did not overcome the original deficiencies of the application’s denial. The case was then forwarded to BALCA on November 19, 2009 and the Employer filed a Statement of Intent to Proceed. In the Statement of Position filed on January 22, 2010, the CO restated the reason for denial as the Employer’s identification as “confidential” on the website advertisement.

PERM regulation 20 C.F.R. § 656.17(f)(1) controls and it provides if an employer places an advertisement on a job search web site other than the employer’s, there are certain requirements such as including the “name of the employer.”

In the instant case, the Employer’s name was marked as “confidential” but if a searcher clicked on the links of the website they would be taken to the advertisement which did contain the employer’s name and address. BALCA found a potential employee would have been able to find the full information by clicking on the links available in the listing. Further, the web page without the Employer’s name was not the advertisement itself; the advertisement was a link that could be found on the web page that did include the Employer’s name.

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

BALCA Finds SWA Job Order Must Comply with §656.17(f)

May 10, 2011

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “High School Science Teacher.”

After the Employer neglected to respond to an Audit Notification, the CO denied certification on February 27, 2007. The Employer then proceeded to argue that they had never received the Audit Notification and requested a review of the case. Once the CO re-issued the Audit Notification on May 27, 2008 the Employer did respond. Following a review of the Employer’s response, the CO denied certification on the grounds that the requirements for the job didn’t match on ETA Form 9089 and the order placed with the State Workforce Agency (SWA). The ETA Form 9089 listed a wage lower than that on the job order as well as the fact that the Employer did not submit two recent letters of recommendation to fulfill the requirement of the ad placed on Edjoin.com. In a request for review, the Employer argued the requirement difference on the forms occurred as a result of SWA’s mistake and the Edjoin.com ad shouldn’t have asked for two letters of recommendation. The case was then forwarded to BALCA on November 18, 2009 and a Notice of Docketing was issued. In a Statement of Position, the CO explained the case was denied because the SWA requirements are greater than those listed on ETA Form 9089 and the requirements on the website ad exceed those listed on the application as well.

PERM regulation 20 C.F.R. § 656.17(f)(6) controls and it provides: “advertisements must not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089.”

In the instant case, the SWA job order violated the above regulation because the requirements exceeded those stated on ETA Form 9089. Additionally, BALCA found it was the Employer’s responsibility to make sure the job order complies with the filing requirements even if the SWA made a mistake when entering the information.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

BALCA Affirmed Denial - Evidence of Recruitment with Private Employment Firms

May 5, 2011

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

On the Employer’s Application for Permanent Employment Certification, three additional types of recruitment were listed because the job advertised was a professional position. An Audit Notification was issued by the CO on October 5, 2007 requesting documentation on the Employer’s additional recruitment steps which included: listing the job on a job search website, using the employee referral program and listing the job with a private employment firm. The Employer responded to the Audit Notification on October 19, 2007 and submitted documentation which included: a copy of ETA Form 9098, a letter from HR stating the need for the job’s requirements, the posting of the available notice for the job (dated May 21, 2007 to June 1, 2007), the recruitment report, prevailing wage determination, copies of additional postings, list of recruitment agencies used, and a copy of the employee referral program. Certification was denied on February 11, 2008 by the CO who cited failure to provide, “adequate documentation of additional recruitment steps for professional occupations” as the reason for denial. The CO went on to say the Employer lacked evidence to support the company listing minimum requirements for the job that exceeded the SVP level as well as failed to demonstrate the recruitment efforts by the private employment firms. The Employer submitted a request for review on February 29, 2008 arguing the previous evidence submitted was adequate. Following the Employer’s request for review, the CO still denied certification. The CO accepted the Employer’s argument and additional documentation concerning the business necessity but did not accept the evidence to support the recruitment efforts by private employment firms. The case was then forwarded to BALCA and a Notice of Docketing was issued on October 8, 2009. In a Statement of Position, the CO defended the denial of certification, arguing sufficient documentation was not provided by the Employer to show individuals were given the opportunity to apply for the position or, “that any recruitment was done in a timely manner.”

PERM regulation 20 C.F.R. § 656.17(e)(1)(ii)(F) controls and it provides that an employer may consult private employment firms as one of their additional recruitment steps for a professional position. The regulation also stipulates documentation must be provided that is “sufficient to demonstrate that recruitment has been conducted by a private firm for the occupation for which certification is sought.”

In the instant case, the Employer submitted additional evidence of the private employment firm’s recruitment efforts that was not in the original record; therefore the evidence could not be considered. BALCA found the CO properly denied certification and concluded that the Employer failed to comply with regulations.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

BALCA Affirmed Denial of Unsigned ETA 9089 Submitted by Mail

May 3, 2011

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

After accepting an application for Permanent Employment Certification on August 28, 2007, the CO issued a denial of the application citing nine different reasons. The Employer requested review of the case on September 14, 2007 and argued that although portions of the application had been “mistakenly overlooked,” he had complied with all the regulations. The letter of request for review from the Employer did not satisfy the CO and the case was forwarded to BALCA on January 6, 2010. The official denial from the CO stated the application was denied on the grounds that the alien did not sign Section L-2 of ETA Form 9098 and the offered wage was lower than the prevailing wage noted on ETA Form 9098. Following a Notice of Docketing issued by BALCA, the Employer filed an appellate brief arguing that they were unable to submit ETA 9098 with the alien’s signature because the alien lives in a remote area of Kosovo with limited mail service. Additionally, the Employer noted in the brief that the higher end of the salary range offered does coincide with the prevailing wage determination listed on ETA Form 9098.

PERM regulation 20 C.F.R. § 656.17(a) controls and it provides that it is the Employer’s responsibility when applying for labor certification on behalf of an alien to submit a fully completed ETA Form 9098 which includes signatures from the employer, alien, and attorney/agent.

In the instant case, BALCA found the burden to be on the Employer as he failed to ensure the application was fully complete upon submission. Without signatures from all necessary parties, a visa petition cannot be processed and is therefore denied.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

BALCA and the Employee Referral Program

March 1, 2011

The Board of Alien Labor Certification Appeals (BALCA) recently reversed the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Junior Trading Systems Developer.”

On the Application for Permanent Employment accepted by the CO, the Employer listed the three additional recruitment steps taken to advertise the position. The steps included listing on a job search web site, advertising in a local newspaper as well as advertising with the employee referral program from July 10, 2007 to August 10, 2007. An audit was issued by the CO requesting documentation of the Employer’s employee referral program. Certification was thereafter denied by the CO who cited the Employer failed to include dated copies for the advertising of its employee referral program. In a request for review, the Employer argued that the program is ongoing and every new hire is provided a copy of the memorandum. An email dated March 17, 2008 was also submitted to demonstrate the Employer regularly notified its employees of the program. Further, the Employer contested that the employee referral program used does in fact meet the PERM regulations governing recruitment efforts because of the large number of resumes it receives.

PERM regulation 20 C.F.R. § 656.12(e)(1)(ii)(G) controls and it provides that one of the three recruitment efforts can be an employee referral program with incentives. The program can either be documented with “dated copies of the employer notices or memoranda advertising the program and specifying the incentives offered.”

In the instant case, BALCA found the Employer sufficiently provided evidence of its employee referral program as a method of recruiting workers. Documents were submitted specifying the incentives offered, and evidence was provided supporting the program was in existence at the time of recruitment

Accordingly, the Board reversed the decision of the CO and granted labor certification.

MVP LAW GROUP – Immigration Q&A Forum, Friday, February 4, 2011

February 4, 2011

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.


Question #1 – Temporary Work Visa – H-1B Nonimmigrant Visa
My company petitioned on behalf of a foreign national back in 2008. The national arrived in 2009 and has since obtained her PT license. Back in 2008 we filed her as a PT assistant. Is there anything we need to do now other than file a new LCA?

Answer #1
This sounds like a material change in duties, salary and possibly location and will require not just a new LCA but an amended H-1B petition will need to be filed with the USCIS. A new LCA alone will not update the records with the USCIS; it only creates a new record with the Department of Labor (DOL). If you are interested in placing this individual at a new client site based on her PT qualifications, a new petition will definitely need to be filed with the USCIS, not just the filing of a new LCA.


Question #2 – Employment Based Immigration – Green Card
I appealed my denied my labor application to BALCA. My employer just got notice that my appeal has been docketed. When can I expect a decision?

Answer #2
According to the United States Department of Labor website, it is approximately taking up to two (2) years for a case to be reviewed by BALCA from the date of filing the appeal.


Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
Is the H-1B FY2011 CAP still open?

Answer #3
NO. As of January 26th, 2011 USCIS reported that they have received a sufficient number of H-1B nonimmigrant visa petitions to reach the 65,000 annual CAP. The H-1B FY2012 CAP will open on April 1, 2011 with employment beginning October 1, 2011. For more information contact MVP Law Group, P.A.


Question #4 – Employment Based Immigration – Green Card
Is an approved I-765 any indication that the I-485 is getting close to approval and would eventually be approved without a hitch or are they autonomous processes?

Answer #4
They are separate and distinct creatures. Therefore, to put it simply, an approved I-765 is not an indication that the I-485 is getting closer to being approved.


Question #5 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have a student on OPT currently working for my company. I need to apply for her H-1B but wasn’t able to make it under this CAP. Will she have to return home prior to October 1, if I file her under the new cap in April?

Answer #5
According to the regulations, an F-1 student who is the beneficiary of an H-1B petition and who has timely filed a Change of Status petition will have his/her status and work authorization (if in OPT) automatically extended until October 1st of the following fiscal year so that there is no “gap” between the time her F-1 stay would have expired and the October 1 start date for the H-1B.


Question #6 – Family Based Immigration – Green Card
My father is a U.S. Citizen and agreed that he would sponsor my GC. He currently makes roughly $21k annually. Can he sponsor me for my GC?

Answer #6
To qualify as a sponsor, he must demonstrate that his income is at least 125 percent of the current Federal poverty guideline for his household size. Please refer to the Federal Poverty Guidelines to determine if he could be the primary sponsor for your family based GC application.


Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am presently working on H1 for an exempt University and have found an employer willing to sponsor me in the private sector. Now that the cap has been reached, do I have any options? Can I leave my present employer?

Answer #7
According to a letter dated May 23, 2007 from the Chief of Business and Trade Services of the USCIS, an H-1B applicant may port from a cap-exempt employer to a cap-subject employer if no H-1B visas are available as long as the cap-subject H-1B application is eventually approved and the LCA covers the entire period of employment.


Question #8 – General
My father is in the U.S. on B2 visa obtaining medical treatment for a rare disease. It is unsafe for him to return to his country at this time, plus his treatment isn’t finished. He would like to renew/extend his visa. Can he and how can he?

Answer #8
If your father wants to extend his stay in the U.S., he will have to file an extension with the USCIS. He will need to file Form I-539, Application to Extend/Change Non-immigrant Status before his current status expires (look to the date on his I-94 document). The USCIS recommends that individuals apply to extend their status at least 45 days before the status expires. He will need to provide documentation evidencing the reason for the extension along with the Form I-539.


Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
Can more than one (1) employer file a temporary (part-time) H1B visa application on my behalf at the same time? For a part time H1B work, what is the minimum number of hours per week and days per week of work required to be eligible for maintaining the part-time H1B visa status?

Answer #9
Simply put, yes more than one employer can file a temporary part-time H-1B visa application for you during the same time period, as long as a certified LCA covering the jurisdiction of employment is obtained and the I-129 petition and additional supporting documentation reflects this part-time period. 40 hours + per week would be considered a full time employee, therefore, anything less than 40 hours per week would be considered part-time.


Question #10 – Employment Based Immigration – Green Card
My husband and daughter have received their Green Cards but I didn’t get mine. I filed for our green cards through my employer. Is there a problem with my case?

Answer #10
Based on the information provided, it seems like there may be an issue with the production/issuance/mailing of your Green Card. Your husband and daughter would not have received their Green Cards if there was a pending issue with your case. From the information you provided, you are the primary applicant and your husband and daughter are your derivatives. Therefore, the USCIS would not approve the I-485 Application to Adjust status for the derivatives without first approving it for the primary applicant. Follow up with the USCIS after 60 days from the date your husband and daughter received their GCs by calling the National Customer Service Center at 1-800-375-5283.


MVP Law Group would like to thank everyone who contributed a question or comment. We hope the information provided is helpful.

Our next “Immigration Q & A Forum” is scheduled for Friday, February 18th, 2011! Please remember to submit your questions/comments on our h1bvisalawyer blog.

BALCA Affirms Final Determination of CO - Computer Software Engineer

December 24, 2010

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Computer Software Engineer."
The Employer’s Labor Application was accepted by the CO on July 26, 2007, where the prevailing wage was indicated as $50.88 per hour. The Employer also gave evidence of posting for the position on a job search website from February 4, 2007 to February 21, 2007. An audit was issued on September 19, 2007 by the CO requesting additional recruitment documentation. The Employer submitted evidence of its ad posting on monster.com for 17 days, which listed the salary as 50 to 70 dollars per year. Since the wage listed on the ad was lower than that listed on the prevailing wage document, the CO denied certification. On December 12, 2007, the Employer asked for a re-evaluation citing the fact that they submitted the wrong job advertisement, the correct one was an ad placed on NJ.com. On the NJ.com advertisement for the job there was no indication of wage. Again the CO denied certification citing 20 C.F.R. § 656.24(g) which states a review can only include documentation requested from a CO or documentation that that Employer originally did not have the opportunity to present.

PERM regulation 20 C.F.R. § 656.24(g)(2) controls and it provides a request for reconsideration may only include “documentation actually received from the employer in response to a request from the CO” or “documentation that the employer did not previously have the opportunity to present to the CO.”

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

BALCA Vacated CO determination - Violation of Due Process

December 23, 2010

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

The CO accepted the Employer’s Application for Permanent Employment Certification which stated the job required a bachelor’s degree in Pharmacy and a “Valid Florida Pharmacist license or ability to obtain a license” for processing on December 31, 2009. To show fulfillment of the advertising and recruitment requirements, the Employer gave evidence of postings in two papers. Citing the ad print in Pharmacy Today, a professional journal, the CO said it did not qualify as the required second advertisement because the job listed didn’t require experience or an advance degree and therefore denied certification. After the Employer reviewed the denial letter from the CO, the Employer asked that the advertisement in Pharmacy Today be allowed in light of the fact that the standards for the job were changed to 6 years in the PharmD program as well as experience in the field. Further, the Employer argued that advertising in that journal offered a larger pool of more highly skilled applicants needed for the job and that finding a qualified person for the job is highly difficult. In the appeal, the CO stuck to the denial of the application stating that even though Pharmacy job requirements have increased, CVS is not asking for someone with those requirements to fill the job. On the other hand in the appeal, the employer argues it only advertised that the job required a bachelor’s degree in order to “recruit based on the largest applicant pool,” which would include those individuals who were not affected by the increase in requirements in 2000 because of a grandfather clause. The Employer goes on to argue that states have different licensure standards for pharmacists before that licensure can be awarded.

PERM regulation 20 C.F.R. 656.17(e)(l)(i)(B)(4) controls and it provides that an employer may advertise in a professional journal in place of a Sunday advertisement if the job in question requires “experience and an advanced degree.”

In the instant case, the CO denied certification on the grounds that the Employer placed an ad in a professional journal even though the application only stated the requirements for the job included a Bachelor’s degree and no experience. After reviewing the case BALCA determined the CO dismissed the Employer’s argument on appeal and simply forwarded it to the Board. Further citing a previous decision, 2010-PER-628, BALCA decided the Employer was not given the right to argue the case before the CO, violating due process. The case was returned for further review and to allow the Employer to fully present his argument dismissed by the CO.
Accordingly, the Board vacated the decision of the CO in denying labor certification.

BALCA Grants Reconsideration - CO Abused Discretion

December 21, 2010

The Board of Alien Labor Certification Appeals (BALCA) recently granted an Employer reconsideration for a case in which the CO originally denied labor certification (LC) for an alien worker for the position of “Care Taker-Ranch Hand.”

After the Employer filed an LC on June 5, 2009 on behalf of an alien worker, the CO denied certification on February 23, 2010 citing that section M-1, which asks whether the form was completed by the employer, was incomplete. If an individual answers “no” then they must fill out Section M-2 to M-5 which ask questions on whether the information filled out on the application is true and correct to the best of their knowledge. Though neither “yes” nor “no” was checked in Section M-1, at the bottom of Section M-2 to M-5 the Customer Service Coordinator, Collette Reed, signed her name indicating that she prepared the documents. During a request for review on March 18, 2010 the Employer stated the failure to check “yes” or “no” in Section M-1 was a accidental error and submitted a completed form. The appeal was forwarded to the Board without review by the CO. The Employer stated during the appeal that they only wanted reconsideration of the case by the CO, not an appeal to the Board. The CO did not specify how he had chosen to handle the Employer’s request for review; the case was forwarded to the Board without a ruling. The Board tried to determine whether the CO abused his discretion when deciding not to reconsider the denial of the certification. After evaluating previous cases and precedents, BALCA found the Employment and Training Administration (ETA) failed to, “create a workable system to apply in every situation that can arise during the PERM filing process.”

In the instant case, the Board reviewed the Employer’s original request, “Request for Review of Denial of Form ETA 9098” and found that the Employer specifically meant for the CO to reconsider the decision, it was not intended for BALCA review. Further, the Board found that the CO did abuse his discretion by sending the request for review off to BALCA instead of reviewing it personally.

Accordingly, the Board granted the Employer’s request to send the case back for reconsideration by the CO.

BALCA vacated and remanded CO determination - SWA Job Posting

December 7, 2010

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

The CO originally denied the application on the grounds that the Employer failed to provide evidence of its State Workforce Agency (SWA) job posting subsequent to an audit. The Employer stated that a screenshot of the Oklahoma Job Link Website was in fact submitted. The request for review was sent to the Appeals Board by the CO. In an appellate brief, the Employer continued to argue that the SWA job posting was included in the original audit while the CO stood by its original position that it was not.

Accordingly, the BOARD reversed the decision of the CO, finding that the Employers SWA job posting was clearly included in the audit response. The application was sent back to the CO for issuance of a labor certification.

BALCA Affirms Denial of Labor Certification - NOF did not meet regulation requirements

November 17, 2010

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

The applicants’ Employer Application for Permanent Employment Certification was originally accepted by the CO on December 1, 2006 but the application was then denied on December 14 due to the fact that alien did not meet the minimum education, training and experience requirements. The CO issued an audit notification and request for Notice of Filing (NOF) on January 15, 2009 after the Employer asked for a review of the case. On February 11, 2009 the alien’s employer provided all of the information that was questioned in the initial denial as well as the NOF which stated the position was posted from September 1 to September 13. The CO again denied the application on March 16 citing that neither the Employer’s name nor sufficient contact information was provided in the posting. Even though the Employer asked for reconsideration and provided evidence that the posting was sufficient, the CO stuck by the denial. The CO’s main reason for denial was that even though the NOF contained the name and title of the Employer, the information was only added after the initial posting. In the appellate brief filed, the CO reiterated the fact that the information was added to the document after it had already been posted. The CO also mentioned the ambiguity in regards to how many companies resided at that location.

PERM Regulation 20 C.F.R. § 656.10(d) controls and provides that the Employer give notice of filing of the Employer Application for Permanent Employment Certification and that the posting must contain the required information. It is the employer’s responsibility to submit thorough documentation, interpret requests broadly and to be confident that the documentation submitted will support the application. In this case, the Employer’s application did not contain the business name on the NOF and the NOF did not the fully meet all requirements.
Accordingly, the Board affirmed the decision of the CO in denying labor certification.

BALCA Vacates Denial of Labor Certification - NOF posted on Saturday & Sunday

November 9, 2010

The Board of Alien Labor Certification Appeals (BALCA) recently vacated and remanded the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Chefs and Head Cooks.”

The CO originally denied certification on May 5, 2008 because the sponsorship of the immigrant worker could not be verified by the Employer. On June 2, 2008, reconsideration was requested by the Employer due to the fact that the immigrant worker’s contact individual had recently stopped working for the restaurant. An Audit Notification was filed by the CO on December 23, 2009 requesting the Employer to provide its Notice of Filing and recruitment documents as well as present evidence to justify the foreign language requirement. Certification was denied by the CO on February 9, 2010 on the grounds that the Notice of Filing was “posted for fewer than 10 consecutive business days.” The Employer submitted another request for reconsideration, citing that the restaurant is in fact open seven days a week, making the dates supplied (May 14, 2007 to May 24, 2007) sufficient enough for a Notice of Filing posting requirement. Even though the Employer gave evidence that Saturdays and Sundays are the busiest days at the restaurant and that there is a need for employees on those days, the CO still denied labor certification stating business days are only defined by Monday through Friday, excluding federal holidays and weekends.

PERM regulations 20 C.F.R. § 656.10(d) controls and its provides the posting of a Notice of Filing by an Employer must be posted “for at least 10 consecutive business days” but does not specify what determines a business day. The CO denied certification based on the fact the Notice of Filing was not posted for at least 10 business days but the Employer provided evidence that the restaurant operated on Saturdays and Sundays, therefore requesting weekends be considered business days. BALCA disagreed with the CO saying business days are not confined to Monday through Friday. The Employers requirement was fulfilled because the Notice of Filing was posted for 10 consecutive days when “employees [were] on the worksite.” BALCA is giving the Employer another opportunity to demonstrate its Notice of Filing requirement due to the fact that the restaurant is open on the weekends.

Accordingly, the BOARD vacated the decision of the CO in denying labor certification and remanded for further proceedings consistent with this decision.

BALCA Affirms Denial of Labor Certification for CEO of Closely Held Corporation

September 24, 2010

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

An Audit Notification was issued by the CO on April 28, 2006 requesting documents showing the company’s finances, recruitments and corporate structure due to the fact that the application showed the employer is “a closely held corporation, partnership or sole proprietorship.” The Employer submitted its Articles of Incorporation, along with other requested documentation on May 23, 2006. The CO denied the certification on November 9, 2007 because the documents submitted by the employer were not adequate and because it was a close partnership where aliens have influence and control, therefore job opportunities were not available to US workers. The CO cited 20 C.F.R. §656.10(c)(8) which states that job opportunities must clearly be open to all US workers. The Employer responded by submitting a request for review arguing that according the Department of Labor a single factor doesn’t control the authenticity of a job opportunity where an alien has influence. The employer went on to argue that the alien was not involved in the recruitment process, holds no management position, and is neither an incorporator nor a founder. On March 26, 2009 the CO filed a letter of reconsideration finding the employer still did not prove the job was open to all US workers and still believed the alien had a significant role in the management of the company.

PERM regulation 20 C.F.R §656.10(c)(8) controls and provides that a job opportunity must be clearly open to any US worker. In the event of an audit of a closely held company where an alien holds an ownership interest the employer must be able to prove the existence of a legitimate job opportunity for all US workers. In the instant case, the employer failed to demonstrate the existence “of a bona fide job opportunity ….available all US workers.” The employer did not overcome the presumption that the alien has power and control in the company as well as over the job opportunity.

Accordingly, the board affirmed the decision of the CO in denying labor certification.

In the Matter of Intervid, Inc.

BALCA Affirms Denial on Ground That Alien Did Not Meet Educational Requirements After Revision of Form 9089

September 22, 2010

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

The Employer originally stated on the ETA Form 9098 that the position required a high school education and 24 months of experience in the job but when the alien filed his application he only had a high school education. The application was returned to the Employer by the CO based on the grounds that the Employer failed to indicate the year the education was completed. When the form was returned, it showed the alien did not have any education but on the Form 9098 it still stated that high school completion was a requirement for the job. On the grounds that the alien did not meet the job qualifications of Form 9098 the CO denied the application. A request for reconsideration of the application was submitted; the CO found that the grounds for denial were valid. Since the education level had been changed on the Form 9098, the alien no longer had the required experience for the job.

PERM Regulation 20 C.F.R. § 656. 21 (b)(5) controls and provides that 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.” When the form was resubmitted showing the alien with no education and the job requiring a high school degree, the CO found that the alien was unqualified for the job. The CO made the decision to deny based on the Form 9098 not based on documents accompanying the form.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

In Matter of Grand Metropolitan Housewares, Inc.

BALCA Affirms Denial Finding Recruitment Report Inadequate Proof of Web Advertising

September 9, 2010

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying certification. The Employer filed an Application for Permanent Labor Certification for an alien worker for the position of “Programmer."

An Audit Notification was issued on September 11, 2007 for the purpose of providing evidence of recruitment and documentation. The Employer submitted the necessary forms for the audit: a copy of the ETA Form 9089, recruitment report, prevailing wage determination, Notice of Filing, copy of the job order; evidence of employee referral program, and copies of newspaper advertisement. The CO denied certification due to the lack of documentation from the Employer that showed the job was advertised on its website and job search websites. The employer then requested a review on December 13, 2007 stating there was no copy of these postings and they couldn’t make a print out due to an internal error. The CO issued a letter of reconsideration indicating the Employer did fail to provide adequate documentation and did not overcome the deficiencies in the determination letter. The Employer filed a Statement of Intent to Proceed with the appeal and an appellate brief but the CO still asserted that there wasn’t enough documentation and that was a valid reason for denial in its appellate brief.

PERM regulations 20 C.F.R. §656.17 (e) (1) (ii) controls and it provides that when an employer advertises a professional occupation, there are additional steps they can take advantage of: advertising the position on the company website and advertising the positing on job search websites. These steps should be documented and all applications for employment filed with the Department of Labor must be kept by the employer for 5 years. In the instant case, the Employer failed to provide enough documentation that the position was indeed advertised on multiple websites. The only supporting data from the Employer was a signed recruitment report.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

In the Matter of Trans Atlantic Systems, Inc.

BALCA upholds denial of Labor Certification – Alien Worker did not meet the Employer’s Minimum Job Requirements

August 9, 2010

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

The employer filed an application for labor certification which was accepted for processing on February 8, 2006. ETA Form 9089 indicated a requirement of thirty-two (32) months of experience in the job offered, and six (6) months of training as a certified welder. The CO issued an Audit Notification letter requesting evidence of recruitment and other required documentation and the employer complied. Thereafter the CO denied certification because the foreign worker did not meet the Employer’s minimum education, training and experience requirements, in violation of 20 C.F.R. §656.17(i). Specifically, the application required 6 months of training as a certified welder and the application did not show that the Alien had this training. The Employer responded by requesting reconsideration stating that the Alien had a total of 13 years of experience in construction work and gave specific dates of employment with other companies. The CO again denied certification on the same basis. The employer submitted another request for reconsideration stating that the Alien was the ONLY applicant to respond to recruitment and met every requirement of the posting including that of a certified welder. The CO issued a letter of reconsideration indicating that denial was proper because the Alien did not meet the minimum requirements and no further evidence was provided to support the employer’s claim that the Alien in fact had the 6 months of required training as a certified welder.

PERM Regulation 20 C.F.R. § 656.17(i)(1) controls and it provides that, “the job requirements, as described, must represent the employer’s actual minimum requirements for the job opportunity.”

In the instant case, Section H-4 of ETA Form 9089, required 6 months of training as a certified welder, but the employer failed to include in the foreign worker’s work experience job details that he received training in, or performed, any welding. Further, the employer failed to submit any evidence to support its claim that the beneficiary did in fact possess the welding experience required.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

Matter of Virginia Carolina Construction

BALCA upholds denial of Labor Certification – Employer Offered Terms and Conditions of Employment Less Favorable than those Offered to the Foreign Worker

June 4, 2010

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification (LC) for three alien workers for the position of “Senior Programmer Analyst."

The employer filed a LC which was accepted for processing on August 15, 2007. ETA Form 9089 indicated that the job duties consisted of “design, develop, plan, coordinate and implement advance software module components in complex computing environment. For specific skills, the employer required: C++, ASP, COM/DCOM, Scripting, Win NT/2000/98, UNIX, Oracle and VB. Thereafter, the CO issued an Audit Notification letter requesting evidence of recruitment and other required documentation. The Employer responded by submitting copies of its newspaper advertisements, as well as the other required documentation. Thereafter the CO denied certification for several reasons: (1) the Notice of Filing did not contain the location of the job opportunity; and (2) the Employer did not provide adequate documentation of the mandatory print advertisements as requested. Specifically, the tear sheets submitted were not legible. The Employer responded by requesting reconsideration and submitted enlarged, legible copies of its newspaper advertisements. The CO issued a letter of reconsideration indicating that denial was proper because the advertisements contained additional job requirements not listed on the ETA Form 9089. Specifically, the newspaper advertisements stated that travel was required for the position.

PERM Regulation 20 C.F.R. § 656.17(f)(7) controls and it provides:

Advertisements placed in newspapers of general circulation or in professional journals must “not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.”

In the instant case, the advertisements stated that travel was required for the position, which was not listed on Form ETA 9089. In Summary, since the Employer did not include the travel requirement as a requirement for the position on ETA Form 9089, the Employer’s conditions of employment in its newspaper advertisement were less favorable than those offered to the Alien, in violation of 20 C.F.R. § 656.17(f)(7).

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

Matter of Xpedite Technologies, Inc.

BALCA affirms denial of Labor Certification – No Violation of Due Process, PERM Regulations eliminated NOF/Rebuttal procedure found in the pre-PERM regulations

May 28, 2010

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 “Property Real Estate and Community Association Manager.”

The employer filed a LC which was accepted for processing on December 8, 2008. On September 30, 2009, the CO denied the application because the Employer indicated on Form ETA 9089 that it placed its second advertisement on Craigslist, which the CO indicated was not a newspaper or a professional journal. The Employer thereafter requested reconsideration and in its request argued that it was denied due process because it had not been provided adequate notice of the regulatory violation.

PERM Regulation 20 C.F.R. § 656.17(e) controls and it requires that an employer attest to having conducted recruitment prior to filing an application for permanent employment certification. The regulation goes on to provide that applicants involving both professional and non-professional occupations normally require the sponsoring employer to attest to having placed two print advertisements on two different Sundays in a newspaper of general circulation in the area of intended employment. In lieu of one of the Sunday newspaper advertisements, a sponsoring employer is allowed to place an advertisement in a professional journal. In the instant case, the Employer did not attempt to argue that Craigslist was a professional journal, but relied on the argument that it was denied due process because the CO raised an issue for the first time in its final decision, as the Employer based its reasoning on a series of pre-PERM BALCA decisions. Under the pre-PERM regulations, a CO would first issue a “Notice of Findings” (NOF) providing notice to an employer of any deficiencies upon which the CO proposed to deny certification. However, the PERM regulations eliminated the NOF/Rebuttal procedure. The Board found that the CO’s denial of the application without prior notice of the grounds for denial did not violate the PERM regulations.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

Matter of WP Realty Inc.

BALCA Reverses CO’s denial of Labor Certification – Compliance with Requirements for Employee Referral Program

April 15, 2010

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 professional position of “Key Accountant Manager/ICSD."

The employer filed a LC and ETA Form 9089 indicated that one of its recruitment steps was to advertise with its employee referral program from July 26, 2006 to September 30, 2006. The CO issued an Audit Notification letter on December 14, 2006 indicating that the reason prompting the audit was a foreign language requirement. The Employer responded to the Audit Notification with a package of materials. Thereafter the CO issue a denial letter on the sole ground that the Employer had failed to provide documentation of its use of an employee referral program consistent with the regulations. The employer requested reconsideration arguing that the audit notification had not been directed at the employee referral system and that a document explaining the company’s employee referral program was inadvertently omitted from the Recruitment materials. Although the document had been omitted, the employer further argued that it was not an omission in recruitment, which had been completed and reported on a timely basis. The document explaining the program and its incentives was included in the Employer’s Motion for Reconsideration. The CO issued a letter of reconsideration indicating that the Employer had failed to provide evidence of an Employee Referral Program that provided dated copies of the employer notice or memorandum advertising the program; specifically, documenting the incentives that would be offered to the employees.

PERM Regulation 20 C.F.R. § 656.17 (e)(1)(ii)(G) controls and it provides that when an employer files an application for permanent alien labor certification under the basic process for a professional position, the regulations require it to have conducted certain recruitment steps prior to the filing and be prepared to document those steps. One type of recruitment that may be used to support an application is use of an employee referral program with incentives. The way an employer can document this type of recruitment is “by providing dated copies of the employer notices or memoranda advertising the program and specifying the incentives offered”. In the instant case, the Employer’s attorney admitted that it inadvertently omitted the documentation describing the Employer’s employee referral system. However, it is simply not clear whether the CO was affirming the earlier denial based on the Employer’s incomplete audit response, or on the basis that the documentation provided by the Employer with its motion for reconsideration was inadequate under the regulations. Upon review of the entire record, BALCA stated that the Employer was in compliance with the requirements for an employee referral program and met all of the required steps in the PERM process.

Accordingly, the Board reversed the decision of the CO in denying labor certification.

Matter of Clearstream Banking S.A.

BALCA upholds denial of Labor Certification – Employer Inappropriately Used Wage Range in Recruitment Efforts

April 9, 2010

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 “Supervisor, Laundry."

The employer filed a LC which was accepted for processing on October 25, 2005. ETA Form 9089 indicated that the State Workforce Agency (SWA) prevailing wage determination was $19.04 per hour and the foreign alien was being offered a wage of $19.04 per hour. The CO issued an Audit Notification letter requesting documentation of recruitment efforts. The Employer responded by providing a copy of its New York job order listing a range of $18.00 to $19.50 per hour. Thereafter the CO issue a denial letter because the job order listed a wage that was less than the wage offered to the Alien, and that was less than the prevailing wage. The Employer thereafter requested reconsideration arguing that it was their practice to compensate applicants according to their experience – the reason for the range, and that the offer of $19.04 per hour was offered to the Alien and to any American worker. The CO issued a letter of reconsideration establishing that the denial was valid because the low end of the range was less than the prevailing wage determination.

PERM Regulation 20 C.F.R. § 656.17(e) controls and it provides that most sponsoring employers are required to attest to having conducted requirement prior to filing an application for permanent employment certification. Among other requirements, the employer must have placed a job order with the SWA serving the area of intended employment. Furthermore, the employer must attest that the offered wage equals or exceeds the prevailing wage. In the instant case, the job order placed with the SWA states a wage range, the lower end of the wage range being $1.04 less per hour than the SWA’s prevailing wage determination. An employer can use a wage range in its printed recruitment efforts and in its notice of filing; however, the bottom of the range can be no less than the prevailing wage rate. BALCA stated that although the PERM regulations do not expressly state that the SWA job order must not state a wage lower than the PWD, the regulatory requirement that an employer attest to offering at least the prevailing wage and the statutory requirement that an employer pay 100% of the prevailing wage make it clear that the DOL will permit the use of wage ranges in recruitment only when the lower end of the range exceeds the prevailing wage rate.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

Matter of Marcel Cleaners, Inc.

BALCA upholds denial of Labor Certification – Employer Offered Terms and Conditions of Employment Less Favorable than those Offered to the Foreign Worker

March 23, 2010

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 “Production Worker."

The employer filed a LC which was accepted for processing on December 15, 2006. ETA Form 9089 indicated a requirement of three months of experience in the job offered and that the job opportunity’s requirements were normal for the position. The CO issued an Audit Notification letter requesting evidence of recruitment and other required documentation. The Employer responded by submitting copies of its newspaper advertisements, as well as the other required documentation. Thereafter the CO denied certification because the newspaper advertisements offered terms and conditions of employment less favorable than those offered to the Alien, in violation of 20 C.F.R. §656.17(f)(7). Specifically, the advertisements contained criminal background checks, not listed on Form ETA 9089. The Employer responded by requesting reconsideration stating that it was amending Form ETA to attest to its requirement for a criminal background check, the employer amended the form by changing the answer in section H-12 from “yes” to “no”. The CO asserted that by amending its response to “NO” in Section H-12, the Employer did not indicate that a criminal background check was required. The CO issued a letter of reconsideration indicating that denial was proper because the newspaper advertisements offered terms and conditions of employment to the U.S. worker that were less favorable than those listed on ETA Form 9089 for the foreign worker.

PERM Regulation 20 C.F.R. § 656.17(f)(7) controls and it provides:

Advertisements placed in newspapers of general circulation or in professional journals must “not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.”

In the instant case, the advertisements contained a requirement for criminal background checks, which were not listed on Form ETA 9089. In Summary, the Employer did not amend its application to include this requirement, but instead changed its answer to question H-12, indicating that a job opportunity’s requirements were not normal for the occupation. This change did not cure the deficiency.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

Matter of Noll Pallet & Lumber Co.

BALCA upholds denial of Labor Certification – Employer Failed to Post Job Order for the Mandatory 30 day period

March 11, 2010

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 “Mixing and Blending Machine Setters, Operators & Tenders."

The employer filed a LC which was accepted for processing on May 17, 2007. ETA Form 9089 indicated that the position was a nonprofessional occupation. The CO denied certification on the grounds that the job order was not placed with the State Workforce Agency (SWA) for a period of 30 days in violation of the regulations. The Employer responded by requesting reconsideration stating that it had placed two different job orders but did not provide any supporting evidence that reflected proof of either of the posting dates listed on Form 9089. The Employer further added that “any errors are immaterial and minor in the overall effect and outcome of the labor certification.” The CO issued a letter of reconsideration finding that the application was denied because the job order placed with the SWA was not posted for a period of 30 days.

PERM Regulation 20 C.F.R. § 656.17 (e) controls and it provides:

(2) Nonprofessional occupations: If the application is for a nonprofessional occupation, the employer must at a minimum, place a job order and two newspaper advertisements within 6 months of filing the application. The steps must be conducted at least 30 days but no more than 180 days before the filing of the application.

(i) Job Order. Placing a job order with the SWA serving the area of intended employment for a period of 30 days. The start and end dates of the job order entered on the application serve as documentation of this step.

In the instant case, the Employer did not place the job order with the SWA for a period of 30 days. As Form 9089 indicates, the first job order was placed for only a period of 29 days, and the second job order would have run afoul of the regulations, as it was filed less than 30 days before submission of the application. Additionally, the Employer did not produce any evidence of either of the job orders. BALCA stated that failure to post a job order for a period of thirty days is a substantive violation of the regulations.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

Matter of Monir Attar, Inc.

BALCA upholds denial of Labor Certification – Employer Failed to Submit Proper Documentation to satisfy the Business Necessity Requirement

March 9, 2010

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 “Truck Driver."

The employer filed a LC which was accepted for processing on June 1, 2007. ETA Form 9089 indicated that knowledge of a foreign language was required to perform the job duties. The CO issued an Audit Notification letter requesting further documentation justifying the business necessity for this job requirement. The Employer responded by stating that the “job opportunity requires the capability to speak a foreign language because the products that the company hauls are shipped to Cuauhtemoc, Chihuahua, Mexico.” The Employer added that the community speaks either Spanish or German, and a truck driver who did not speak either of those languages would be at a disadvantage. Further, the employer asserted that the truck drivers it currently employs are fluent in English, Spanish and German. Thereafter the CO issued a denial letter; the Employer responded by requesting reconsideration and asked the CO what type of evidence it needed to submit to address the business necessity requirement and that it would be willing to provide any and all supporting documentation needed. The CO issued a letter of reconsideration indicating that the Employer had not justified its foreign language requirement by demonstrating business necessity.

PERM Regulation 20 C.F.R. § 656.17(h) controls and it provides:

(2) A foreign language requirement can not be included, unless it is justified by business necessity. Demonstrating business necessity for a foreign language requirement may be based upon the following:

(i) the nature of the occupation (e.g., translator); or
(ii) the need to communicate with a large majority of the employer’s customers, contractors, or employees who can not communicate effectively in English, as documented by:

(A) the employer furnishing the number and proportion of its clients, contractors, or employees who can not communicate in English, and/or a detailed plan to market products or services in a foreign country; and
(B) a detailed explanation of why the duties of the position for which certification is sought requires frequent contact and communication with customers, employees or contractors who can not communicate in English and why it is reasonable to believe the allegedly foreign-language-speaking customers, employees, and contractors can not communicate in English.

In the instant case, there is no evidence establishing that the occupation of “Truck Driver” normally requires a foreign language requirement, and only mere assertions were made to attempt to satisfy the business necessity requirement without any actual supporting documentation provided by the employer. BALCA stated that the Employer did not meet its burden of justifying the foreign language requirement by demonstrating a business necessity.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

Matter of UMC Logistics, Inc.

BALCA vacates denial of Labor Certification – Fundamental Fairness requires Employer be given a Second Opportunity to Produce the Relevant Document

February 12, 2010

The Board of Alien Labor Certification Appeals (BALCA) recently vacated and remanded the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the Professional position of “Photographer."

The employer filed a LC which was accepted for processing on May 21, 2007. ETA Form 9089 indicated that the State Workforce Agency (SWA) determined the prevailing wage to be $7.31 per hour, and the skill level, “Professional.” Additionally, the employer did not provide a name or date of the second newspaper or professional journal advertisement. The Employer had attached several documents to ETA Form 9089, including documents showing the Alien’s qualifications and visa status; a March 2007 job order placed with the NY State Department of Labor; a print out of a www.flcdatacenter.com web page showing the Occupational Employment Statistics (OES) wages for a photographer in the Middleton, NY area; tear sheets from one newspaper advertisement; and resume and interview notes for a couple of the rejected job applicants. The CO thereafter issued a letter denying certification based on the fact that the Employer had not selected a proper Skill Level, and did not provide the name of the second advertisement or professional journal. The employer then requested reconsideration by submitting a copy of the OES print out indicating that no skill level was set for the position of Photographer, and provided evidence of several additional newspaper advertisements. The record indicates that the Employer was asked to provide a copy of the SWA PWD to the DOL analyst and submitted a new SWA PWD for 2009, instead of one dated for 2007. The CO determined that its basis for denial was valid and forwarded the appeal file to BALCA.

PERM Regulation 20 C.F.R. § 656.24(a) controls and it provides that the employer must request a prevailing wage determination from the SWA having jurisdiction over the proposed area of intended employment. The SWA must enter its wage determination on the form it uses and return the form with its endorsement to the employer. Furthermore, the employer must maintain the SWA PWD in its files and be prepared to submit it if requested in the course of an audit.
In the instant case, the Employer should have obtained a PWD from the SWA prior to filing ETA Form 9089, and entered the skill level assigned by the SWA on Form 9089. However, the Board found that it may be possible that the Employer did not understand that what the CO was asking for was the 2007 PWD that the Employer should have obtained prior to filing and not a new PWD. Subsequently, the Board provided that fundamental fairness requires that the Employer be given a second opportunity to produce the relevant PWD.

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

Matter of Galaxy Studios, Inc.

BALCA reverses denial of Labor Certification – Employer Omissions on ETA Form 9089 were not material as other information provided on the Form answered the essential question posed by the Form

February 5, 2010

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 Household Assistant.

The employer filed a LC which was accepted for processing on June 5, 2006. On September 20th, the CO denied the application because several required selections on the form had not been made by the Employer. The Employer thereafter requested reconsideration at the end of October. In its request for reconsideration, the Employer’s attorney provided responses to the omissions and believed that the request for reconsideration was to determine that the 30 day deadline had not elapsed. The Employer argued that each of the omissions was not material to the adjudication of the application as other information provided within the form answered the essential questions posed by the form. The Employer clearly stated in the motion for reconsideration that it was providing reasons for omissions in the event that the CO accepted the motion despite its lack of timeliness. Thereafter the CO accepted the Employer’s explanations for several of the selections, but found that the denial was valid because the Employer still did not provide information on what should be completed for the omitted selections. On appeal, the CO moved to dismiss the appeal on the ground that it was not timely. The Employer thereafter filed a response opposing the CO’s motion to dismiss.

PERM Regulation 20 C.F.R. § 656.17(a) controls and it requires that an employer who desires to apply for a labor certification on behalf of an alien must file a completed Department of Labor (DOL) Application for Permanent Employment Certification (ETA Form 9089). The regulation goes on to provide that incomplete applications will be denied. In the instant case, the Board found that the CO waived the issue of timeliness and made their decision based upon the materiality of the omissions. The Board recognized that some omissions may not be material to the review of the substance of an application and stated that the Employer made reasonable arguments as to why, in context, the omissions all were not material; however, the CO proffered no explanation for why the omissions prevented a complete review of the application.

Accordingly, the Board declined to affirm the decision of the CO in denying labor certification and returned the matter to the CO for the issuance of a labor certification.

Matter of Ben Pumo

BALCA upholds denial of Labor Certification – Employer Failed to Timely Address Business Necessity Issue

January 13, 2010

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 “Dental Assistant."

The employer filed a LC which was accepted for processing on January 16, 2007. ETA Form 9089 indicated that the job required a high school education and twenty-four (24) months of experience in the job offered. The CO issued an Audit Notification letter indicating that the O*Net indicates that one (1) year of experience is normal for the occupation and specifically directed the Employer to establish business necessity for its two (2) year requirement. The Employer responded to the Audit Notification but failed to address the business necessity issue. Thereafter the CO issue a denial letter, the Employer responded by requesting reconsideration and submitted a letter regarding why two (2) years experience was required for the position. The CO issued a letter of reconsideration indicating that the new letter constituted new evidence that was not in the record at the time that the application was filed and on which the denial was based.

PERM Regulation 20 C.F.R. § 656.20(b) controls and it provides that when an application is audited, the audit procedure specifies that a substantial failure by the employer to provide required documentation will result in that application being denied. In the instant case, the CO’s Audit Notification specifically requested that the Employer document the business necessity for its two (2) year experience requirement. BALCA stated that the failure to address the business necessity was clearly a substantial failure to provide documentation required by the audit notification. In addition, the regulations governing motions for reconsideration provided that the request for reconsideration may not include evidence not previously submitted.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

Matter of Dr. Haig Rickerby Dental Office

BALCA upholds denial of Labor Certification – Job Order Placed 184 days prior to CO’s date stamp

October 21, 2009

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 nonprofessional position of “Drywall taper."

The employer filed a LC which was mailed on September 20, 2006 and accepted for processing on September 22, 2006. ETA Form 9089 indicated that the State Workforce Agency (SWA) job order was run from March 22, 2006 through March 26, 2006. The CO issued a denial letter on July 5, 2007 on the basis that the job order was completed more than 180 days prior to the submission of the labor application.

PERM Regulation 20 C.F.R. § 656.17(e)(2) controls and it provides that if the application is for a nonprofessional occupation, the employer must place a job order no more than 180 days before the filing of the application. Furthermore, the filing date for a mailed application is the date the CO stamps it as received, not the postmark date. In the instant case, the SWA job order was placed 184 days prior to the CO’s date stamp. Even if the date was calculated from when the employer shipped the application, the SWA job order was still untimely.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

Matter of The Drywall Doctors

BALCA upholds denial of Labor Certification – FEIN Discrepancy

October 19, 2009

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 Electrical Helper.

The employer filed a LC on behalf of an alien worker and in November of 2007, the CO denied the application because he was unable to verify the Employer as a bona fide business entity. The Employer requested reconsideration by submitting its 2006 Federal Corporate Tax Return, its Business Certificate Registration and two utility bills. The Federal Employer Identification Number (FEIN) provided on the 2006 Tax Return only matched the first two digits of the FEIN previously provided on Form ETA 9089. Furthermore, the utility bills and the tax return provided a different address from that on the Business Certificate Registration. Thereafter, the CO issued a letter denying reconsideration because the FEIN on the corporate tax return did not match the FEIN on ETA Form 9089. The CO then forwarded the case to BALCA. The Employer filed a letter stating that its company had two addresses, one for its motor shop and the other for its main office, the CO did not file an appellate brief with the Board.

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. An employer MUST possess a valid FEIN when applying for labor certification pursuant to PERM regulation 20 C.F.R. § 656.3. In the present case, there was a discrepancy in the FEIN provided in ETA Form 9089 and in the 2006 tax return; however, the Employer failed to explain the discrepancy.

Accordingly, since the discrepancy in the FEINS was not clarified, the Board affirmed the CO’s denial of certification.

BALCA upholds denial of Labor Certification – Application Filed Less Than 30 Days After Job Order Ended

October 9, 2009

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 “Care Provider."

The employer filed an application for LC which was accepted for processing on January 30, 2008. On February 15, 2008, the CO denied certification on several grounds, one being that the Job Order was placed less than 30 days prior to the date the application was filed in violation of the governing regulations.

PERM Regulation 20 C.F.R. § 656.17(e) controls and it provides that if the application is for a nonprofessional occupation, the employer must at a minimum, place a job order and two newspaper advertisements within 6 months of filing the application. The steps must be conducted at least 30 days but no more than 180 days before the filing of the application. The employer must place a job order with the State Workforce Agency (SWA) serving the area of intended employment for a period of 30 days. The start and end dates of the job order entered on the application serve as documentation of this step.

The Employer acknowlegded the timing fact, but blamed its non-compliance on the SWA; however, it is the employer's responsibility to comply with filing requirements. As such, the Board found that the CO properly denied certification.

To read the entire decision: Maria's Home for the Aged

BALCA upholds denial of Labor Certification – Job Order Placement Period Insufficient

October 1, 2009

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 “Financial Manager."

The employer filed an application for LC which was accepted for processing on April 12, 2007. Form 9089 provided that the State Workforce Job Order had a start date of February 5, 2005 and an end date of February 13, 2005. The CO thereafter denied certification on several grounds, one being that the Job Order was not placed for a period of 30 days as required by the governing regulations.

PERM Regulation 20 C.F.R. § 656.17(e)(1)(i)(A) controls and it provides that an employer must place a job order with the SWA serving the area of intended employment for a period of 30 days for professional occupations. The start and end dates of the job order entered on the application shall serve as documentation of this step.

The Employer failed to address the timing issue, and as such, the Board had to affirm the decision of the CO in denying labor certification.

To read the entire decision: Matter of Pacific Lumber Supply, Inc.

BALCA upholds denial of Labor Certification – Notice of Posting Inadequate

September 29, 2009

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 “Specialty Cook/Italian."

The employer filed a LC which was accepted for processing on June 13, 2006. Thereafter, the CO issued an audit notification letter requesting among other documents, the Employer’s Notice of Filing. The employer submitted its Notice of Filing, yet the Notice failed to provide the CO’s address or any other means of contacting the CO. As such, the CO issued a denial letter.

PERM Regulation 20 C.F.R. § 656.10(d)(3) controls and it provides that the Notice of Filing must (i) State that the notice is being provided as a result of the filing of an application for permanent alien labor certification for the relevant job opportunity; (ii) State that any person may provide documentary evidence bearing on the application to the Certifying Officer of the Department of Labor; (iii) Provide the address of the appropriate Certifying Officer; and (iv) Be provided between 30 and 180 days before filing the application.

The purpose of the regulation is to allow any person to submit documentary evidence bearing on the application for certification to the Certifying Officer (such as information on available workers, information on wages and working conditions, and information on the Employer’s failure to meet the terms and conditions with respect to the employment of alien workers and co-workers). By omitting the CO’s address and contact information, the purpose of the Notice of Filing was defeated.

As such, the Board had to affirm the decision of the CO in denying labor certification.

To read the entire decision: Matter of Ron Lopes, LLC

BALCA upholds denial of Labor Certification – Employer Submitted Labor less than 30 days after end of SWA job order

August 31, 2009

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 “Office Clerk, General."

The employer filed a LC which was accepted for processing on October 16, 2006. Form ETA 9089 provided that the State Workforce Agency (SWA) job order had been placed from September 5, 2006 until October 6, 2006. On August 10, 2007, the CO denied labor certification because the application was filed less than 30 days after the end of the job order. The Employer then submitted a request for review, requesting that its previous SWA job order, commencing on August 22, 2006, be used instead of the job order placed on September 5, 2006. Accordingly, in October of 2008, the CO thereafter denied reconsideration on the ground that the employer’s evidence did not support a changing of the SWA job orders.

The CO then forwarded the case to BALCA. The Employer filed a Statement of Intent to Proceed with the appeal, but did not file an appellate brief. The CO filed a brief arguing that its decision should be affirmed by the Board.

Continue reading "BALCA upholds denial of Labor Certification – Employer Submitted Labor less than 30 days after end of SWA job order" »

BALCA upholds denial of Labor Certification – Notice of Filing failed to provide “Rate of Pay”

August 25, 2009

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 “Computer Software Engineer, Applications."

The employer filed a LC on behalf of an alien worker and in June of 2007, thereafter the CO issued an Audit Notification letter requesting among other documents, its Notice of Filing. The Employer complied with the request; however the Notice of Filing failed to provide the rate of pay for the proffered position. In March of 2008, the CO issued a letter denying certification. In April of 2008, the Employer submitted an appeal to the Board, but failed to provide any argument as to the failure to provide the rate of pay. The CO issued a letter of reconsideration affirming the denial and provided that the grounds for denial were valid because of a violation of 20 C.F.R. § 656.10(d)(4), which requires that the Notice of Filing provide a rate of pay.

The CO then forwarded the case to BALCA. The Employer filed a Statement of Intent to Proceed, but did not file an appellate brief. The CO filed a letter brief arguing that its decision should be affirmed by the Board.

Upon BALCA review, regulation 20 C.F.R. § 656.10(d)(4) controls and provides that the Notice of Filing “must state the rate of pay (which much equal or exceed the prevailing wage entered by the SWA on the prevailing wage request form).” The purpose of the Notice of Filing is to implement the statutory requirement provided by Section 122(b) of the Immigration Act of 1990, which provides that “any person may submit documentary evidence bearing on the application for certification (such as information on available workers, information on wages and working conditions, and information on the employer’s failure to meet the terms and conditions with respect to the employment of alien workers and co-workers).” Here, the Employer’s Notice of Filing failed to provide the rate of pay and the Employer failed to provide any explanation as to its omission. The Board further provided that a failure to list the rate of pay wage in the Notice of Filing constitutes grounds for denial of certification.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

BALCA upholds denial of Labor Certification – PERM: Recruitment not conducted in accordance with Regulations

August 12, 2009

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 “Dietitian and Nutritionist."

The employer filed a LC on behalf of an alien worker in December of 2006, where the Employer indicated that it had based its recruitment on the requirements for a non-professional position. In August of 2007, the CO denied certification because the Employer improperly relied upon the non-professional position requirements for recruitment, when the professional position recruitment requirements should have been conducted. The CO explained that the particular position was listed in Appendix A of the Preamble to 20 C.F.R. Part 656 as a Professional occupation, and recruitment should have been conducted accordingly. The Employer then filed a Motion to Reconsider arguing that a bachelor’s degree was not required. The CO stated that when a position is listed on Appendix A, the Employer must conduct the recruitment required for professional occupations, the mere listing as a non-professional position, and not requiring a bachelor’s degree were irrelevant to the discussion. Since the additional recruitment steps were not taken, the CO had the authority to deny certification.

The CO then forwarded the case to BALCA. The Employer informed BALCA of its intent to proceed with an appeal, but did not file an appellate brief. The CO filed a brief arguing that its decision should be affirmed by the Board because the occupation was listed on Appendix A, and therefore recruitment in a manner prescribed for a professional position was required pursuant to the regulations.

Upon BALCA review, it was determined that professional recruitment requires a few additional steps not required for nonprofessional positions. Appendix A of the Preamble to 20 C.F.R. Part 656 provides an extensive list of professional occupations, which are defined as “occupations for which the attainment of a bachelor’s or higher degree is a usual educational requirement, however, the educational degree is not determinative of whether an Appendix A occupation is considered a professional position. Thus, if an occupation is found on Appendix A, the employer must recruit the position under the criteria for professional occupations, even if the employer does not consider the position to be a professional one and does not require the attainment of a bachelor’s degree. Here, the Employer did not require a bachelor’s degree, but the position was listed in Appendix A, and the Employer was required to conduct the additional steps required for professional recruitment. In the present case, the Employer failed to conduct those additional steps and denial by the CO was proper.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

BALCA upholds denial of Labor Certification – PERM: Failure to Prove Business Necessity

August 6, 2009

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 “Supervisor/Service Manager.”

The employer filed a LC requiring seven years of experience in the job offered, and the case was later selected for audit. The Audit letter requested that the Employer provide proof of business necessity for the excessive experience requirement, and submission of its recruitment report, among other documents. After the Employer submitted its response, the CO denied certification based on failure to prove business necessity.

The CO then forwarded the case to BALCA. The Employer filed an Appeal by letter which included an argument from the Employer’s President explaining why the Employer needed the Alien’s skills in speaking English, French and Spanish, but did not address why the experience requirement was so long. The CO filed a letter brief arguing that its decision should be affirmed by the Board.

Upon BALCA review, regulation 20 C.F.R. § 656.17(h)(1) controls and provides that “The job opportunity's requirements, unless adequately documented as arising from business necessity, must be those normally required for the occupation and must not exceed the Specific Vocational Preparation level assigned to the occupation as shown in the O*NET Job Zones. To establish a business necessity, an employer must demonstrate that the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer's business and are essential to perform the job in a reasonable manner.” In the present case, the Employer’s requirement of seven years experience exceeded the O*Net Job Zone SVP for the position. The Board agreed with the CO that the Employer failed to provide an explanation as to why the requirement was excessive.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

BALCA upholds denial of Labor Certification – PERM: Professional and nonprofessional position recruitment

August 5, 2009

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 “Assistant Director."

The employer filed a LC on behalf of an alien worker in August of 2006, where the Employer indicated that it had based its recruitment on the requirements for a non-professional position. In November of 2008, the CO denied certification because the Employer improperly relied upon the non-professional position requirements for recruitment, when the professional position recruitment requirements should have been conducted. The CO explained that the particular position was listed in Appendix A of the Preamble to 20 C.F.R. Part 656 as a Professional occupation, and recruitment should have been conducted accordingly. The Employer then filed a Motion to Reconsider arguing that the CO’s allegation was made in error, that he did not file for a professional position, and that a bachelor’s degree was not required. The CO stated that when a position is listed on Appendix A, the Employer must conduct the recruitment required for professional occupations, the mere listing as a non-professional position, and not requiring a bachelor’s degree were irrelevant to the discussion. Since the additional recruitment steps were not taken, the CO had the authority to deny certification.

The CO then forwarded the case to BALCA. The Employer filed a Statement of Intent to Proceed with the appeal, and filed a brief arguing the same positions as listed above. The CO filed a letter brief arguing that its decision should be affirmed by the Board because the occupation was listed on Appendix A, and therefore recruitment in a manner prescribed for a professional position was required pursuant to the regulations.

Upon BALCA review, it was determined that professional recruitment requires a few additional steps not required for nonprofessional positions. Appendix A of the Preamble to 20 C.F.R. Part 656 provides an extensive list of professional occupations, which are defined as “occupations for which the attainment of a bachelor’s or higher degree is a usual educational requirement, however, the educational degree is not determinative of whether an Appendix A occupation is considered a professional position. Thus, if an occupation is found on Appendix A, the employer must recruit the position under the criteria for professional occupations, even if the
employer does not consider the position to be a professional one and does not require the attainment of a bachelor’s degree. Here, the Employer did not require a bachelor’s degree, but the position was listed in Appendix A, and the Employer was required to conduct the additional steps required for professional recruitment. In the present case, the Employer failed to conduct those additional steps and denial by the CO was proper.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

BALCA upholds denial of Labor Certification – PERM: Failure to follow Recruitment time restrictions for filing

August 4, 2009

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 “Accounting/Bookkeeping Assistant."

On March 2, 2007, the employer filed a LC on behalf of an alien worker, indicating that the position was a professional occupation. In August of 2007, the CO denied certification for many reasons, mainly that the application was incomplete. By September, the Employer had resubmitted the labor application correcting most of the deficiencies, and submitted evidence of recruitment. In November of 2008, the CO issued a letter of reconsideration providing that one of the reasons for denial was that the job order was not conducted within the time frame required by the regulations. Additionally, one of the three additional recruitment steps was conducted outside of the time frame.

The CO then forwarded the case to BALCA. The Employer filed a Statement of Intent to Proceed with the appeal, and did not file a brief. The CO filed a letter brief arguing that its decision should be affirmed by the Board because the Job Order was not completed at least 30 days prior to filing the application, and the fact that one of the three additional recruitment steps was conducted 5 months after filing, clearly in violation of the regulations.

Upon BALCA review, regulation 20 C.F.R. § 656.17(e) controls and provides that “an employer must have attest to having conducted the following recruitment prior to filing the application: (1) …the employer must conduct recruitment steps within six (6) months of filing the application…,(2) a job order must be placed with the State Workforce Agency (SWA) serving the area of intended employment for a period of 30 days, the state and end dates of the job order entered on the application shall serve as documentation of this step… Here, the Employer placed the job order six (6) months after filing the application, which is a clear violation, because the job order must be filed at least thirty (30) days prior to filing the application. Additionally, the third additional recruiting step was not completed until five (5) months after filing, when it should have been completed within 30 days prior to filing.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

BALCA upholds denial of Labor Certification – PERM: Failure to follow Newspaper Advertisement Regulations

August 3, 2009

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 “Food Preparation Worker."

The employer filed a LC and had checked the box on Form 9089 indicating that there was a Sunday edition of a newspaper available in the area of intended employment. The Employer’s report of its newspaper advertisements showed that the first ad was placed on Tuesday, August 22, 2006, and a second advertisement was placed on Saturday-Sunday, October 21-22, 2006, in a different newspaper. In January of 2007, the CO denied labor certification for failure to comply with the Sunday newspaper advertisement regulations. The Employer then submitted a letter indicating that it had re-advertised for the position on Sunday, January 28, 2007. Accordingly, the CO thereafter denied reconsideration on the ground that the 2007 newspaper advertisement was not “in the record” at the time the application was denied.

The CO then forwarded the case to BALCA. The Employer filed a Statement of Intent to Proceed with the appeal, and did not file a brief. The CO filed a letter brief arguing that its decision should be affirmed by the Board.

Upon BALCA review, regulation 20 C.F.R. § 656.17(e) controls, providing that the Employer must have attested to having placed two print advertisements on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity. Here, the denial was based upon the Employer’s failure to run the second advertisement in a Sunday edition newspaper of general circulation. The Employer did not argue that it had or had not complied with the regulations, but argued that it re-advertised the position correctly after the denial, and that certification should be granted based upon that act. The Board stated that the CO is not required to permit an employer to cure a deficiency by filing a motion for reconsideration supported by a new recruitment conducted after the CO denied the application. The Employer’s remedy in this case is to file a new labor certification.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

BALCA upholds denial of Labor Certification – Newspaper Advertisement omitted Employer’s Name

July 23, 2009

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 “Brickmason."

The employer filed a LC on behalf of an alien worker and in October of 2007, the CO issued an Audit Notification letter requesting among other documents, its recruitment documentation. The Employer complied with the request; however a newspaper advertisement failed to contain the Employer’s name. In May of 2008, the CO issued a letter denying certification. In June of 2008, the Employer filed a request for reconsideration providing that if anything the omission was harmless error, as they had received three resumes in response to the advertisement, and compared their case to the Board’s decision in HealthAmerica. The CO issued a letter of reconsideration but affirmed the denial for the deficiency in including the Employer’s name in the newspaper advertisement. The CO further provided that inclusion of the Employer’s name allows potential applicants to identify the employer and determine if they will apply, and that some applicants may be unwilling to blindly apply for a position in which they do not know the identity of the Employer.

The CO then forwarded the case to BALCA. The Employer filed a brief providing that applicants were not prevented from applying as the company received three resumes in response to the advertisement, and further relied upon HealthAmerica, providing that “one innocent omission should not be the basis for the entire application to crumble.” The CO filed a letter brief arguing that its decision should be affirmed by the Board, and that HealthAmerica was distinguishable from the present case because it involved a typographical error, not a clear failure to follow the regulations governing advertisements.

Upon BALCA review, regulation 20 C.F.R. § 656.17(f)(1) controls and provides that “advertisements placed in newspapers of general circulation or in professional journals before filing the Application for Permanent Employment Certification must: (1) Name the employer and (2) Direct applicants to report or send resumes, as appropriate for the occupation, to the employer….” Here, the Employer’s newspaper advertisements failed to contain the Employer’s name, in violation of the regulation. The Board stated that the Employer’s argument that applicants were not prevented from applying because they received three resumes was not convincing. The Board reviewed and relied upon the reasoning of the CO, and also found HealthAmerica as distinguishable from the present case.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

BALCA upholds denial of Labor Certification – Failure to provide documentation requested in Audit Notification Letter

July 21, 2009

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 “Cook."

The employer filed a LC on behalf of an alien worker and in November of 2007, the CO issued an Audit Notification letter requesting among other documents; Notice of Filing, the recruitment report, the prevailing wage determination, and documentation of recruitment. The Employer’s attorney filed a response indicating that it had a prior approved labor certification for the same position with the exact same requirements, therefore the present application warranted an approval for certification, and if not, the CO needed to thoroughly explain why. In January of 2008, the CO issued a letter denying certification. In February of 2008, the Employer filed a request for review arguing that the CO’s determination was unfair and arbitrary. The CO issued a letter of reconsideration in February of 2009 and provided that the Employer failed to comply with the Audit therefore, the denial was appropriate.

The CO then forwarded the case to BALCA. The Employer filed a brief on the same basis as its earlier argument (the prior approval of the earlier application for the same position, same requirements warranted an approval of the present application). The CO filed a letter brief arguing that its decision should be affirmed by the Board.

Upon BALCA review, regulation 656.20(b) controls and provides that a “substantial failure by the
employer to provide required documentation will result in that application being denied
under § 656.24 ….” Here, the CO requested that the Employer provide certain documents in response to its audit notification letter. The Employer failed to provide the requested documents, and failed to give a reason for not providing the documents. The Board further provided that although similar applications have been certified in the past, it does not in any way excuse an employer from producing documentation in response to an Audit Notification.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

BALCA upholds denial of Labor Certification – AUDIT: Failure to provide Recruitment Report

July 20, 2009

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 “Beautician."

The employer filed a LC on behalf of an alien worker and in March of 2008, the CO issued an Audit Notification letter requesting among other documents, the recruitment report. The Employer complied with the request for other documents, but failed to submit the recruitment report. In May of 2008, the CO issued a letter denying certification. In October of 2008, the CO issued a letter of reconsideration in which it thoroughly reviewed the applicant’s file and still could not find the recruitment report. Accordingly, since the Employer failed to comply with the Audit (submission of the recruitment report), the denial was appropriate.

The CO then forwarded the case to BALCA. The Employer filed a Statement of Intent to Proceed with the appeal, and did not file a brief. The CO filed a letter brief arguing that its decision should be affirmed by the Board.

Upon BALCA review, regulation 20 C.F.R. § 656.17(g) controls and provides that, the employer is required to “prepare a recruitment report signed by the employer or the employer's representative noted … describing the recruitment steps undertaken and the results achieved, the number of hires, and, if applicable, the number of U.S. workers rejected, categorized by the lawful job related reasons for such rejections.” Further, when PERM application is selected for the audit procedure, failure to provide requested documents to the CO will result in the application being denied. Here, the CO specifically identified the requested documents, and the recruitment report was not submitted. Thereafter, the Employer had the ability to make an argument on appeal, but failed to do so. Without a report, the CO could not determine whether the recruitment procedures complied with the regulations.

Accordingly, the Board had to affirm the decision of the CO in denying labor certification.

BALCA vacates CO’s denial of Labor Certification involving Employer’s FEIN

July 6, 2009

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 “Cook."

The employer filed a LC on behalf of an alien worker in February of 2006. In November of 2007, the CO denied certification under 20 C.F.R. § 656.3 because he was unable to verify the Employer as a bona fide entity. The CO did not explicitly request proof of the employer’s Federal Employer Identification Number (FEIN). In response to the denial, the Employer submitted a copy of a prior approved labor certification arguing that it was for the same employer, same address, same telephone number, and same FEIN. The Employer also submitted a Yellow Pages advertisement for the company, and the company’s business license in a request to the CO for reconsideration. Thereafter, in March of 2009, the CO issued a letter of reconsideration providing that the application would be denied because the applying company could not be verified as a bona fide entity under the regulations. Specifically, the CO stated that the other application contained a FEIN different from the application presently under review; therefore it did not serve as verification of a bona fide entity. Accordingly, since the Employer failed to provide proof of a valid FEIN, the denial was appropriate.

The CO then forwarded the case to BALCA. The Employer submitted an appellate brief arguing that at no time did the CO clarify that he wanted proof of a valid FEIN, and furthermore, never requested such proof. The CO filed a letter brief arguing that its decision should be affirmed by the Board because the Employer did not provide a valid FEIN as required under the regulations.

Upon BALCA review, regulation 20 C.F.R. § 656.3 controls, it provides that to be considered an “Employer” for the permanent labor certification program, an entity must possess a valid FEIN. The Board agreed with the CO that the two application’s FEIN’s did not match, but determined that the Employer’s argument regarding the absence of a request for the FEIN had some merit. The Board determined that the CO’s denial did not address the issue sufficiently to provide the Employer an opportunity to appropriately address the situation. The Board concluded that fundamental fairness was required, and ordered the CO to allow the Employer to clear up the inconsistency in its FEINs submitted.

Accordingly, the CO’s denial was vacated for further proceedings consistent with the Board’s decision.

BALCA upholds denial of Labor application – Employer failed to comply with Notice of Filing requirements

June 1, 2009

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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BALCA upholds denial of Labor application – Employer failed to obtain a proper PWD

May 26, 2009

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.

BALCA upholds denial of Labor application – Employer failed to comply with PERM regulations

May 21, 2009

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.

BALCA upholds denial of Labor application – Employer failed to comply with Prevailing Wage Determination Instructions

May 19, 2009

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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BALCA affirms denial of Labor application - Employer Failed to Comply with Notice of Filing requirements

May 5, 2009

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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BALCA affirms denial of Labor application – Lack of Employer’s Name on Notice of Filing is not harmless error

May 4, 2009

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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BALCA vacates denial of Labor application – Lack of Kellogg Language would offend fundamental fairness and procedural due process

April 30, 2009

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.

In Lieu of Recent BALCA Decisions, a Message from the MVP Law Group, P.A.

April 24, 2009

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.

BALCA upholds denial of Labor application – Did Not Comply with “Notice of Filing” Requirements

April 24, 2009

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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BALCA upholds denial of Labor application – Incomplete, Missing Required Information

April 23, 2009

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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BALCA upholds denial of Labor application – Employer Did Not Comply with PERM Regulations

April 22, 2009

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.

BALCA upholds denial of Labor application – No On-Site Hire Exception to Advertising Requirements

April 21, 2009

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.

BALCA upholds denial of Labor application – Employer Placed Job Order after receiving denial

April 10, 2009

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.

BALCA upholds denial of Labor application – Employer failed to comply with PERM process

April 9, 2009

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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BALCA dismisses Appeal based upon PERM audit regulation 20 C.F.R. § 656.20(a)(3)

April 9, 2009

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.

BALCA upholds denial of Labor Certification, No valid FEIN

April 8, 2009

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.

BALCA affirms priority date for PERM application

April 7, 2009

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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BALCA upholds denial of Labor application – Misinterpretation of Statutory Regulations

April 7, 2009

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.

BALCA upholds denial of Labor application – Employer failed to comply with advertisement regulations

April 6, 2009

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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BALCA upholds denial of Labor application – Employer failed to rebut NOF

April 2, 2009

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.

BALCA reverses denial of Labor Certification

March 31, 2009

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.

BALCA upholds denial of Labor application – Excessive requirement

January 12, 2009

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.

BALCA upholds denial of Labor application – Unduly restrictive job requirements

December 9, 2008

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 .

BALCA upholds denial of Labor application – not good faith recruitment

December 8, 2008

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 .

BALCA upholds denial of Labor application – minimalist approach to recruitment

November 21, 2008

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.

BALCA upholds denial of Landscaper Application - seasonal employment

November 17, 2008

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.

BALCA upholds denial of Landscaper application – not permanent, full-time employment

November 14, 2008

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.

BALCA remands LC for supervised recruitment due to failure of Employer to recruit in good faith

November 7, 2008

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.

BALCA upholds denial of LC because Employer failed to establish position was permanent full-time employment

November 6, 2008

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 .

BALCA upholds denial of LC because Employer failed to establish lawful-job related reasons for rejecting otherwise qualified U.S. workers

November 3, 2008

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.

BALCA upholds denial of LC based on suspension of counsel

October 31, 2008

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.

BALCA upholds denial of LC because proffered position not full-time as required by regulations

October 27, 2008

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.

BALCA upholds Final Determination finding lack of good faith in recruitment

October 24, 2008

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.

BALCA vacates Final Determination and remands for proper procedures to re-advertise

October 23, 2008

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.

BALCA upholds denial of LC for failure to obtain Federal Employer Identification Number (FEIN)

October 6, 2008

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.

BALCA upholds denial of LC based upon failure to comply with PERM advertising rules

September 30, 2008

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.

BALCA affirms PERM filing date and vacates CO's denial of the application

September 29, 2008

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.

BALCA upholds denial of LC based on submission of Incomplete Application

September 26, 2008

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.

BALCA remands case – Pro se employer not given adequate rebuttal notice

September 5, 2008

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.

Unlawful Rejection of U.S. Workers: BALCA affirms Certifying Officer's denial of labor certification

September 3, 2008

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.

Recruitment Efforts: Employer cannot reject otherwise qualified candidates based on resume alone

September 2, 2008

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.

BALCA affirms denial of Labor Certification based on lack of requested evidence

August 26, 2008

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.