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

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.