BALCA Affirms CO’s Denial – NOF Contained A Wage Less Than That Offered to the Alien

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 “Production Planning/Scheduling Manager.”

The Employer listed the offered wage for the position as $67,000 per year and required a Master’s degree in Industrial Engineering plus six months of experience on the Application which was accepted by the CO on July 24, 2007. The CO requested the Employer’s Notice of Filing (NOF) when an Audit Notification was issued. The CO additionally requested that the Employer submit proof of business necessity. The Employer listed on the NOF an annual salary of $66,435 for the position in its response to the Audit Notification. The CO denied labor certification on December 19, 2008. Labor certification was denied because the wage the Employer listed on the NOF was less than yearly wage offered to the alien. The requirements for the position also surpassed the Specific Vocational Preparation (SVP) level assigned by O*Net and the Employer did not provide significant documentation in its response to prove the additional requirements were necessary. After reviewing the denial, the Employer argued the Office of Foreign Labor Certification (OFLC) gave the impression that the NOF didn’t have to include the wage offered to the alien, it was only necessary to include the prevailing wage. The Employer further argued the CO never specifically asked for proof of business necessity and as a result the Employer did not know to submit it. On February 17, 2010 the case was forwarded by the CO to BALCA.

PERM regulation 20 C.F.R. §656.17(f)(7) controls and it provides that when filing an application for permanent labor certification notification the advertisement must not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.

In the instant case, BALCA found the CO’s denial was appropriate as the Employer’s NOF contained a wage lower than the wage offered to the alien.

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

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