H1B Visa Lawyer Blog
The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Senior Commissioning Engineer.”
After obtaining & examining an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification ordering the Employer to submit “a copy of the Prevailing Wage Determination received from the State Workforce Agency (SWA), along with a copy of the request for the determination submitted to the SWA.” The Employer responded to the Audit but did not include the SWA prevailing wage determination or a copy of the request.
The CO denied labor certification citing the Employer’s failure to provide the prevailing wage determination as issued by the SWA. He cited PERM regulation 20 CFR 656.20(b) as the source of his denial. PERM regulation 20 CFR 656.20(b) provides “a substantial failure by the employer to provide required documentation will result in that application being denied…”
The Employer requested reconsideration of the denial stating that it inadvertently forgot to include the documents in its Audit response. They said they had obtained a Prevailing Wage Determination from the SWA in Georgia and included a copy in their request for reconsideration.
Once again, the CO denied the labor certification application and forwarded the case to the BALCA board for review of the case. The documentation sent by the Employer constituted evidence not in the record on which the denial was based.
Upon review, the BALCA panel affirmed the denial because the Employer neglected to present the mandatory documentation requested by the CO.