BALCA Affirms Denial of Labor Certification – NOF did not meet regulation requirements

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 “Chef.”

The applicants’ Employer Application for Permanent Employment Certification was originally accepted by the CO on December 1, 2006 but the application was then denied on December 14 due to the fact that alien did not meet the minimum education, training and experience requirements. The CO issued an audit notification and request for Notice of Filing (NOF) on January 15, 2009 after the Employer asked for a review of the case. On February 11, 2009 the alien’s employer provided all of the information that was questioned in the initial denial as well as the NOF which stated the position was posted from September 1 to September 13. The CO again denied the application on March 16 citing that neither the Employer’s name nor sufficient contact information was provided in the posting. Even though the Employer asked for reconsideration and provided evidence that the posting was sufficient, the CO stuck by the denial. The CO’s main reason for denial was that even though the NOF contained the name and title of the Employer, the information was only added after the initial posting. In the appellate brief filed, the CO reiterated the fact that the information was added to the document after it had already been posted. The CO also mentioned the ambiguity in regards to how many companies resided at that location.

PERM Regulation 20 C.F.R. § 656.10(d) controls and provides that the Employer give notice of filing of the Employer Application for Permanent Employment Certification and that the posting must contain the required information. It is the employer’s responsibility to submit thorough documentation, interpret requests broadly and to be confident that the documentation submitted will support the application. In this case, the Employer’s application did not contain the business name on the NOF and the NOF did not the fully meet all requirements.
Accordingly, the Board affirmed the decision of the CO in denying labor certification.

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