BALCA Affirms Denial Where Web Ad Differed from ETA 9089

The Board of Alien Labor Certification Appeals (BALCA) affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Multi-Media Artists & Animators.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. After the Employer responded, the CO denied certification of the application for multiple reasons. First and foremost, the position advertised 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 revealed that the employer’s web advertising specified the position required a minimum of a high school diploma. On the Employer’s ETA Form 9089, it listed a Bachelor’s degree plus 24 months, or 4 years of work experience as an alternative to the degree.

The Employer sent a reconsideration request to the CO. In its argument, the Employer stated the government made a clear error in denying the labor application. The CO delivered a second denial and forwarded the case to BALCA for review.

After BALCA’s examination of the case, they affirmed the CO’s denial of labor certification. The Board deemed the Employer clearly violated the PERM regulations “by not specifically apprising US workers of the job opportunity.” In the web advertising, the position advertised to applicants stated only a high school diploma was required. However, the ETA form mentioned a higher level of education. In its defense, the Employer believed the difference in listings would have caused a problem for applicants if the advertised job would have required stricter educational prerequisites. BALCA thought US workers viewed different requirements for the position then what was listed on the ETA Form. BALCA believed prospective applicants may have overlooked the ad because they thought they may be overqualified for the job.