BALCA Says CO May Order New PWD During Supervised Recruitment

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 “Nursery Manager.”

After reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. He wanted the Employer to submit a copy of the State Workforce Agency’s (SWA) Prevailing Wage Determination (PWD). The Employer submitted a PWD from “The Survey Group” along with a letter from this company that provided a job description which was similar to the Nursery Manager’s position, specifically, the position was titled – Nursery Technician.

The CO then informed the Employer that they would need to conduct supervised recruitment. The CO ordered the company “to obtain an updated PWD from the National Prevailing Wage Center.” The CO asserted the PWD listed on the Employer’s 9089 Form was no longer valid. As part of its response to the Supervised Recruitment, the Employer insisted that the CO did not have the authority to instruct them to obtain a new PWD. The Employer also sent a draft advertisement that included the original PWD. The CO issued a Draft Advertisement Correction because “the wage offer was lower than the current prevailing wage.” He directed them to send a new advertisement with a PWD that was equal to or surpassed the current PWD.

The Employer sent the CO a letter with their refusal to raise the wage. They resubmitted the original draft ad that included the same PWD. The CO issued a denial letter citing PERM regulation 20 CFR 656.21(f). This regulation, states “The employer shall supply the CO with the required documentation or information within 30 days of the date of the request. If the employer does not do so, the CO shall deny the application.”

The Employer then requested BALCA review. Once BALCA reviewed the case, the Board sided with the CO. The Board found the Employer failed to obtain a proper PWD from the SWA. They also believed the CO had the proper authority to request a new PWD under Supervised Recruitment. In order to accurately test the US labor market and to permit the CO to make the statutorily mandated determination that the employment of the alien in the job opportunity will not adversely affect the wages and working conditions of works in the US similarly employed, use of a current PWD rather than a stale PWD is essential. BALCA affirmed the CO’s decision to deny certification.