BALCA Reverses Denial Finding Job Order Form Deficient

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 “Business Development Manager-IV.”

After receiving and reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit. He directed the Employer to present copies of its recruitment records. The Employer responded with its New Jersey State Workforce Agency (SWA) Job order that was administered through America’s Job Exchange (AJE).

Once the CO received the audit materials, he denied certification of the application. The CO cited the position communicated in its recruitment advertising did not match the one listed on the Employer’s ETA Form 9089 in violation of PERM Regulations 656.17 (f)(6). In its Labor Application, the Employer stated the position required “a Master’s Degree and 12 months of experience in the job offered.” In its SWA job order, the experience requirement listed “Mid-Career (2-15 years).”

The Employer sent a reconsideration request to the CO. In its argument, the Employer stated it had entered 12 months on the New Jersey job order but the AJE system converted it to 2-15 years. As evidence, the Employer printed a copy of the AJE instructions that mentions the automatic conversion of anything entered from 12 to179 months to mid-career. The CO denied the request. Even though the AJE may alter the experience into a pre-determined scale, the CO declared that the job submission form incorporated a free-form field so the employer could enter its own requirements.

After BALCA’s examination of the case, it was overturned. The Board believed the Employer made an effort to run its recruitment in compliance with PERM regulations. They believed there was no way to avoid the AJE system of conversion. BALCA felt the CO speculated that the Employer could have inserted information into a free-form field, but there was nothing in the record to support such speculation. The case was remanded for certification.

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