BALCA Says ETA 9089 Lacks “Free Form Space” for Clarifying Eligibility

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 “AMI Montessori Elementary Teacher.”

After reviewing an Employer’s Application for Permanent Labor Certification, the CO denied certification of the application. He believed the Alien Worker did not meet either the “primary or alternative educational requirements” that were listed on the labor application. In Section J.11, the Employer checked ‘OTHER’ on the application under Highest Level of Education and later clarified in Section J.11.A that ‘OTHER’ classification was AMI Certification.

The Employer sent a reconsideration request to the CO. In its argument, the Employer stated the AMI Certification is “higher than a Bachelor’s but lower than a Master’s or Doctorate.” In addition, they submitted a letter from the Montessori Training Center that one of its admission requirements for their program is a Bachelor’s Degree. The Employer also sent an Educational Assessment document which determined the Alien Worker had “the equivalent of a US Bachelor’s Degree based on work experience and postsecondary education.”

After reconsideration, the CO once again denied certification because the ETA Form filled out by the employer did not contain all of the information required to determine if the foreign worker satisfied the Employer’s minimum requirements for the position. He believed there was ample free space within the form to explain the Alien worker’s certification and educational background. The CO forwarded the case to BALCA for review.

After the explanation provided and the evidence submitted in the reconsideration request, BALCA believed the CO should have approved the application. The Panel found the CO’s decision was unreasonable and unsupported by the regulations. They overturned the CO’s denial and sent it back for purposes of certification.