H1B Visa Lawyer Blog

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

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.