BALCA Finds SWA Job Order Must Comply with §656.17(f)

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 “High School Science Teacher.”

After the Employer neglected to respond to an Audit Notification, the CO denied certification on February 27, 2007. The Employer then proceeded to argue that they had never received the Audit Notification and requested a review of the case. Once the CO re-issued the Audit Notification on May 27, 2008 the Employer did respond. Following a review of the Employer’s response, the CO denied certification on the grounds that the requirements for the job didn’t match on ETA Form 9089 and the order placed with the State Workforce Agency (SWA). The ETA Form 9089 listed a wage lower than that on the job order as well as the fact that the Employer did not submit two recent letters of recommendation to fulfill the requirement of the ad placed on In a request for review, the Employer argued the requirement difference on the forms occurred as a result of SWA’s mistake and the ad shouldn’t have asked for two letters of recommendation. The case was then forwarded to BALCA on November 18, 2009 and a Notice of Docketing was issued. In a Statement of Position, the CO explained the case was denied because the SWA requirements are greater than those listed on ETA Form 9089 and the requirements on the website ad exceed those listed on the application as well.

PERM regulation 20 C.F.R. § 656.17(f)(6) controls and it provides: “advertisements must not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089.”

In the instant case, the SWA job order violated the above regulation because the requirements exceeded those stated on ETA Form 9089. Additionally, BALCA found it was the Employer’s responsibility to make sure the job order complies with the filing requirements even if the SWA made a mistake when entering the information.

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

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