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 “Assistant Accountant.”
After examining an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification ordering the Employer to submit documentation of the Foreign Worker’s knowledge of various programs at the time of hire. The Employer replied to the Audit with a personal statement from the Foreign Worker stating she had the mandatory understanding of these programs. Also included was a letter from the Employer’s Comptroller confirming at the time of hire the foreign worker possessed the minimum requirements for the job position.
The CO sent a denial letter because he believed the Employer failed to provide substantial evidence of the Foreign Worker’s knowledge of the programs (i.e., he wanted documentation – certifications, licenses, a notarized statement.) He cited PERM Regulation 20 CFR 656.20(b) as the authority of his denial, which states, “a substantial failure by the employer to provide required documentation will result in the application being denied.”
The Employer requested reconsideration. The CO forwarded the case to BALCA for review. The CO declared the Employer should have provided a “notarized affidavit, certifications, licenses, or any other substantive proof” of the worker’s knowledge. The Board believed that the CO’s denial was unwarranted. The CO requested documentation but failed to specify what types of documentation would be sufficient for the Employer to satisfy its burden. As a result, the BALCA panel found the Employer complied with the Audit request and could not deny the application for failure to submit specific types of documentation that were not identified in the Audit request. The case was reversed and granted certification.