BALCA upholds denial of LC based on submission of Incomplete Application

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.