BALCA Remands, Says Ads Would Not Prevent U.S. Workers from Applying

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 “Support Engineer”.

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification directing the Employer to present its recruitment records. In the Notice of Filing (NOF), the Employer lists the position “requires a BA/BS or MA/MS degree or equivalent in Computer Science, Engineering, Physics, Math, Information Systems, Business or related field; Team Manager Positions are available.” The Washington State Workforce Agency (SWA) job order stated “qualifications may include a MA/MS degree or equivalent or a BA/BS degree or equivalent in Computer Science, Engineering, Math, Physics, Information Systems, Business or related field; Multiple positions available.”

The Employer complied with the Audit request and ultimately the CO denied certification of the application. The position communicated in its NOF and SWA did not match the one listed on the Employer’s ETA Form 9089 in violation of PERM Regulation 20 C.F.R. § 656.17 (f)(6). On the Employer’s NOF and SWA, it listed a Master’s degree that surpassed the requirements recorded on the ETA Form.

The Employer requested reconsideration. In its argument, the Employer stated that neither the NOF nor SWA indicated a Master’s degree was a requirement for the position. The terms “may include a BA/BS or MA/MS” or “requires a BA/BS or MA/MS” were used to clarify that some of the positions could necessitate a Master’s degree.

After BALCA’s examination of the case, BALCA sided with the Employer. The Board thought any job applicant could clearly view that multiple positions were available with varying qualifications. Specifically, the Employer’s job description was written in plural term and it was clear from the inclusion of the team manager positions in the ad that the various positions had differing educational requirements. BALCA believed the Employer’s advertisements were not misleading or would have stopped any US applicant from applying to these jobs. The labor application was sent back to the CO for certification.