BALCA Affirms CO’s Denial – Employer Website Posting Insufficient

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 “Applications Engineer.”

The Employer’s Application was accepted by the CO on October 10, 2007 and listed that the Employer had advertised on its website for the position from May 29, 2007 to July 19, 2007. An Audit Notification was issued by the CO. In the Employer’s response, extensive evidence of the website posting was given. However, the CO denied certification citing the job posting on the website was dated September 24, 2007-outside the date the Employer reported on ETA Form 9089. On, October 15, 2009 the Employer argued for reconsideration because the Vice President submitted an affidavit attesting to the fact that he posted the job opportunity on the website during the dates provided above. The Employer also argued that in light of the fact the date on the website print out was September 24, 2007, the advertisement was posted for at least one day within the 30 days prior to the date the application was submitted. The case was forwarded to BALCA.

PERM regulation 20 C.F.R. § 656.17(e)(1)(ii)(B) controls and it provides that one of the additional recruitment efforts for a professional position can be a website positing which can be documented by providing dated copies of pages from the site that advertise the occupation involved in the application.

In the instant case, BALCA found the Employer’s audit response insufficient under the regulation. Although the letter from the Vice President was proof, it was not adequate evidence to persuade the CO and BALCA that the Vice President was the official within the employer’s organization responsible for the posting of such occupations on the company website.

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