BALCA Affirmed Denial of Unsigned ETA 9089 Submitted by Mail

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Cook.”

After accepting an application for Permanent Employment Certification on August 28, 2007, the CO issued a denial of the application citing nine different reasons. The Employer requested review of the case on September 14, 2007 and argued that although portions of the application had been “mistakenly overlooked,” he had complied with all the regulations. The letter of request for review from the Employer did not satisfy the CO and the case was forwarded to BALCA on January 6, 2010. The official denial from the CO stated the application was denied on the grounds that the alien did not sign Section L-2 of ETA Form 9098 and the offered wage was lower than the prevailing wage noted on ETA Form 9098. Following a Notice of Docketing issued by BALCA, the Employer filed an appellate brief arguing that they were unable to submit ETA 9098 with the alien’s signature because the alien lives in a remote area of Kosovo with limited mail service. Additionally, the Employer noted in the brief that the higher end of the salary range offered does coincide with the prevailing wage determination listed on ETA Form 9098.

PERM regulation 20 C.F.R. § 656.17(a) controls and it provides that it is the Employer’s responsibility when applying for labor certification on behalf of an alien to submit a fully completed ETA Form 9098 which includes signatures from the employer, alien, and attorney/agent.

In the instant case, BALCA found the burden to be on the Employer as he failed to ensure the application was fully complete upon submission. Without signatures from all necessary parties, a visa petition cannot be processed and is therefore denied.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.