BALCA Remands for Materiality Assessment of Section M-1

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.