BALCA Finds Omission of Notarized Statement in Audit Response Immaterial

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 “Indian Vegetarian Cook.”

After receiving and reviewing the Employer’s Application for Permanent Labor Certification, the CO issued an Audit. He directed the Employer to present a signed notarized statement attesting to the sponsorship of the Alien. In addition, the CO requested answers to several questions concerning the position and the Foreign Worker. The Employer responded to the Audit request in a timely manner.

Once the CO received the audit materials, he denied certification of the application. The Employer did not provide the notarized statement that was requested in the Audit Notification Letter. The Employer sent a reconsideration request to the CO. The Employer stated that “by signing and submitting the ETA Form 9089, it had attested it had a job opportunity available.” The CO re-affirmed his decision and stated that the Employer’s failure to send back a notarized letter with the Audit was a valid reason for denying certification. The CO forwarded the case to BALCA for review.

After BALCA’s examination of the case, the denial was overturned. The Board sided with the Employer. By filling out and signing Section N of the ETA Form, the Employer under “penalty of perjury” attested to the sponsorship of the foreign worker. Even though the notarized statement was a reasonable request, the CO did not offer any explanation as to why the omission of it would materially affect the review of the Labor Application. The Board believed that denial of labor certification was not appropriate in the case. The BALCA panel remanded the case back to the CO for certification.