BALCA Indicates that ETA 9089 Errors Might Be Addressed in Audit

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 “R & D Manager/Chemist.”

After receiving and reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. The Employer responded with details of its recruitment efforts as well as summary chart. After reviewing the Audit materials, the CO denied certification of the application. The Employer provided recruitment efforts that did not match the one as listed on the Employer’s ETA Form 9089. In its ETA Form, the Employer indicated it advertised the job opening through its “employee referral program, a job search website and its own website.” In the Audit materials, the Employer failed to provide any documentation of the referral program. It included an advertisement with ecampusrecruiter.com sponsored by the University of Pittsburgh, which was not listed on ETA Form 9089. Since the Employer failed to provide any evidence of the employer referral program, the CO had no choice but to deny certification of the labor application.

The Employer sent a reconsideration request to the CO. The Employer argued that it had made a clerical mistake by listing the referral program on its ETA Form. In its request for reconsideration, it also submitted a corrected ETA Form 9089. The CO re-affirmed its denial and forwarded the case to the BALCA for review.

After BALCA’s examination of the case, the board sided with the CO. The Employer clearly failed to list the correct recruitment activity. Since they made this error, it prevented the CO from having the right information to make a fair decision on the labor application. Furthermore, the Employer had the opportunity in its Audit response to address this issue and failed to do so.