BALCA Reverses Denial, Finds Prevailing Wage Variance De Minimus

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 “Computer SW Engineers, Applications.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. He requested the Employer provide its recruitment documentation and a copy of its Prevailing Wage Determination (PWD). The Employer responded and the CO denied certification on two grounds. First, the wage offered in the Notice of Filing and job order was lower than the PWD. The Employer offered $59,467 and the PWD was $59.467.20. In addition, the CO stated the Employer failed to make available copies of employer notices on its employee referral program with incentives.

The Employer sent a reconsideration request to the CO arguing the 0.0003% discrepancy should not cause their labor application to be denied. They indicated their use of “the Department of Foreign Labor’s Foreign Labor Certification (FLC) Data Center Online Wage Library to determine the appropriate annual wage.” The Employer also stated that it had provided a flier of its Employee Referral Program as well as data in its Recruitment Report about the program. Despite the Employer’s claims, the CO delivered a second denial and forwarded the case to BALCA for assessment.

Upon review of this case, BALCA ordered the CO to grant certification. They believed the certification should not be denied for a “minor variance below the prevailing wage.” The INA’s requirement – that an alien be paid 100% of the required PWD – is not violated where the employer advertised a wage that was 99.9997% of the PWD, and when that rate was chosen after seeking out additional guidance from the DOL’s Foreign Labor Certification Data Center Online Wage Library. BALCA’s decision is limited to the facts and circumstances of this particular case. The Board also believed that the documentation the Employer provided concerning its Employee Referral Program with incentives satisfied the regulatory requirements.