BALCA Upholds Denial in Case Involving “On the Job” Experience

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 “Electronics Engineer.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification requesting evidence of the employee’s work experience. The Employer sent back its recruitment documentation as well as the worker’s educational information, among other documents.

Upon review of the Audit response, the CO denied the Labor Certification. The CO believed the applicant’s credentials did not match the position’s minimum job requirements recorded on the Labor application. He stated the worker did not have a Master’s degree or 60 months experience at the time of his hire and only received his Master’s degree after he started working for the company. Overall, the CO declared “the Employer’s job requirements listed on Form 9089 did not represent the Employer’s actual minimum requirements.”

The Employer sent a reconsideration request to the CO. In its argument, the Employer stated that the employee had acquired his Master’s degree while he was employed in a different position, as an associate member of the employer’s technical staff. He was later promoted to a different position, promoted to the position of member of the technical staff. For clarification purposes, the employer stated they wanted to certify the worker for the member of technical staff position.

Once again, the CO denied certification for the Employer’s failure to list the various titles held by the foreign worker while employed by the Employer. The CO forwarded the case to the BALCA.

After BALCA’s examination of the case, they affirmed the CO’s denial. The Board believed the “Employer failed to demonstrate that the foreign worker possessed the minimum requirements” as listed on ETA Form 9089.