BALCA Affirmed Denial – Proof of Job Order Placement Required

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 “Maintenance and Repair Workers, General.”

The Employer’s Application for Permanent Employment Certification was denied on August 28, 2007 by the CO who cited that in section H of Form ETA 9089, the job opportunity listed was not offered to the alien in section J of Form ETA 9089. In the Employer’s request for review, he stated it was a careless mistake to check the “no” box in Section H16 instead of the yes “box”, referencing the view of Matter of Health America. An additional request was submitted by the Employer on September 11, 2008. An audit was then issued and the Employer was requested to provide documentation of the job order placed with the State Workforce Agency (SWA), a copy of the job order issued by the SWA or other evidence to prove publication by the SWA. The documentation submitted by the Employer was found unsatisfactory to the CO in proving the SWA ran the job order and certification was denied on August 26, 2009. After the case was forwarded to BALCA, the Employer filed a Statement of Intent to Proceed on January 12, 2010.

PERM regulation 20 C.F.R. § 656.17(e)(1)(i)(A) controls and it provides that one of the ways an Employer must inform US workers about a job opportunity is by placing a job order with the SWA in the area of intended employment for 30 days.

In the instant case, the Employer did not provide any of the documentation specifically requested by the CO’s Audit Notification to verify the job order placed with the SWA serving the area of intended employment. The documents the Employer did provide were not sufficient enough to conclude that the job order was received and published by the SWA.

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

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