BALCA Upholds Denial of Certification Where Travel Not Mentioned in Ad

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Accountants and Auditors.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. Once the Employer responded, the CO denied certification of the application for multiple reasons. First and foremost, the job description listed in its recruitment advertising did not match the one listed on the Employer’s ETA Form 9089 in violation of PERM Regulations 20 C.F.R. § 656.10 and 656.17 (f)(3). These regulations require that an advertisement “provide a description of the vacancy specific enough to apprise a US worker of the job opportunity for which certification is sought.” The CO also cited the employer’s website advertising neglected to mention travel requirements that were listed on its ETA Form 9089. On the Employer’s ETA Form, it specified, “various unanticipated Deloitte locations and client sites nationally.”

The Employer sent a reconsideration request to the CO. In its argument, the Employer stated the U.S. Department of Labor (DOL) made a mistake in its ruling. The CO delivered a second denial and forwarded the case to the BALCA for review.

After BALCA’s examination of the case, the board sided with the CO. The Board deemed the Employer clearly violated the PERM regulations “by not specifically apprising US workers of the job opportunity.” On the ETA Form 9089, the Employer clearly listed the travel requirements but neglected to mention these requirements in its Philadelphia Inquirer newspaper advertisements. In its defense, the Employer argued the language listed on the form was not travel requirements but should have been interpreted as the position was open at various nationwide locations. BALCA firmly believed US workers did not view an accurate description of the job in any of the Employer’s advertising.