BALCA Finds No Regulatory Violation in Wage Error on ETA 9089

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 “Software Engineer.”

After obtaining & examining an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification ordering the Employer to submit its Prevailing Wage Determination (PWD) and other requested documentation. The Employer replied to the Audit by providing the PWD as well as the other documents.

The CO denied the labor certification stating the prevailing wage on the ETA form 9089 did not match the one listed on the PWD. He cited a violation of PERM Regulations 656.10(c) (1), 656.40 AND 656.41. In addition, the Employer’s Notice of Filing did not contain the job requirements or duties as listed on the ETA Form 9089. The Employer requested a reconsideration of the denial stating the prevailing wage inconsistency was an unintentional harmless error. The Employer also believed all of its audit response materials were compliant with PERM regulations.

The CO forwarded the case to BALCA for review. The CO raised an entirely new issue in its transmittal letter for denial of the Employer’s application.

Upon review, BALCA reversed the denial because the CO inappropriately referred to inapplicable PERM regulations in his labor application denial. BALCA stated that the Employer did not violate any of the PERM regulations. In agreement with PERM regulation 656.10 (c)(1), the Employer presented the worker a salary that surpasses the prevailing wage. As required by PERM 656.40, the Employer kept his PWD on file and submitted it upon request. As to the new issue brought forward by the CO, since the Employer was not provided sufficient notice of the CO’s denial and was not able to present any evidence, BALCA believed that in the interest of due process and fundamental fairness, the Employer’s labor application should not be denied, as they did not have an opportunity to present evidence that would overcome the denial.