BALCA on Definition of College or University Teacher

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 “Instructional Coordinator.”

After reviewing an Employer’s Application for Permanent Labor Certification, the CO denied the application, without audit or a request for additional information, stating that the position did not qualify as a college or university teacher. The CO considered the Instructional Coordinator position as a professional occupation for which the Employer was required to conduct additional mandatory recruitment efforts.

The Employer sent a reconsideration request to the CO. In its argument, the Employer reaffirmed that the position was a university instructor. They submitted additional documentation to support their claim. They provided a detailed description of the position covering the job duties and experience qualifications. This description mentioned “effective teaching in the library instruction program.” The second piece of evidence included a memorandum from the Dean of the University Libraries. In his memorandum, the Dean summarized the Applicant’s position as a Faculty Member in the Division of Library Services, discussed the Applicant’s responsibilities as an Assistant Professor and referred to the Applicant as “an excellent classroom teacher providing effective, creative and critical learning experiences for our students.”

*These two pieces of evidence were allowed for consideration, under § 656.24(g)(2)(ii) because they existed at the time of filing, and were maintained to support the application. The CO had not previously given the Employer an opportunity to present these documents as evidence, so the Employer properly submitted them in its request for reconsideration.

The CO forwarded the case to BALCA for review stating the additional evidence did not change his decision. He stressed that the job duties were not those involved in “teaching, evaluating and advising students within an assigned instructor workload in a classroom setting.” The CO’s statements were not supported by any documentation. Regulation § 656.18 does not define “college and university teachers,” nor does it refer to any required principal duties or job description.

After BALCA’s assessment of the case, the Labor application was sent back to the CO for processing. The Board believed that the Employer presented enough information to illustrate that the “Instructional Coordinator” position was that of a university professor under PERM regulations § 656.18.