BALCA Finds CO’s Claim that ETA 9089 was Incomplete Untenable

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 “Computer Software Engineer.”

The CO denied the application stating that the Labor application is incomplete and inconsistent with the submitted information from the employer and the applicant. On the Labor application, the Employer’s physical address is listed as Martinsburg, West Virginia but their phone number’s area code is Arlington, Virginia. The applicant’s home address is listed in Martinsburg, West Virginia but his phone number’s area code -571 is representative of Leesburg, Virginia. As additional proof, the CO declared the Employer had signed in Section N, of the LCA, that the information submitted was “true and accurate to the best of its knowledge.”

Perm regulations require an employer seeking to apply for permanent labor to file an ETA Form 9089.20 C.F.R. & 656.17(a). These regulations state that any incomplete applications will be denied.

The Employer stated that in the past, the company was located in the Falls Church area but moved to West Virginia. After the move, the company wanted to maintain the same phone number. This phone number is internet based by Vonage instead of a physical telephone line. In order to try to prove the information was accurate, the Employer submitted phone records and Lease agreements that displayed the address and phone number.

In the case of the Applicant, the Employer responded that the Alien lives in Martinsburg but uses a cellular telephone with the 571 area code. The Employer submitted AT & T phone records, the applicant’s rental agreement and driver’s license reflecting the Martinsburg address.

The CO forwarded the case to BALCA for review. Upon review of the case, the administrative judge ordered that “the denial of labor certification in this matter is vacated.” BALCA believed the evidence submitted by the Employer to be highly persuasive.

The judge sent the application back to the CO for further processing.

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