BALCA Upholds Denial in Case Involving Home Office

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 “Field Service Engineer.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. One of the issues present was the fact that the main worksite address on the ETA Form 9089 was the same as the alien’s address. In its Audit response, the Employer provided its recruitment documentation and explained that the position allows its “Field Service Engineer to work from home and to travel to client sites as needed.”

Once the Employer responded, the CO denied certification. The CO indicated the position communicated in its recruitment efforts did not offer the condition to work from home to US workers. This was a violation of PERM Regulation 20 CFR 656.17(f)(7). This regulation requires that an advertisement “must not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.”

The Employer sent a reconsideration request to the CO. In its argument, the Employer argued that there is not a PERM regulation that requires advertisements to indicate that the geographic location is a home office. The CO affirmed its initial denial and forwarded the case to BALCA for review.

After BALCA’s examination of the case, the panel sided with the CO. BALCA believed the Employer’s advertisements were unduly restrictive, misleading and could have prevented prospective U.S. applicants from applying for the position.