BALCA Reverses Denial, Finds Nexus between Ads and Position on ETA 9089

The Board of Alien Labor Certification Appeals (BALCA) recently reversed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Business Development Specialist.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied certification because the job title recorded in the two newspaper advertisements communicated the job title as “Business Development VP” as an alternative to “Business Development Specialist.” The CO thought this inconsistency was an infringement of PERM regulations 20 C.F.R. § 656.10 and 20 C.F.R. § 656.17(f)(3).

PERM regulation 20 C.F.R. § 656.10(c) (8) requires the petitioning employer to demonstrate that the job has been visibly accessible to any U.S. worker. The PERM regulation § 656.17(f)(3) requires any print advertisement to specifically detail the job requirements in order to give US workers the chance to apply for the position.

The Employer requested reconsideration of the denial arguing that the job titles were significantly the same. They believed that any job hunter would have clearly understood the posting. The Employer stated the term “VP” is regularly used in job listings because it is more enticing than the word “Specialist.” By using the word “VP”, the Employer believed they would get more candidates to apply for the position.

Upon reconsideration of the employer’s arguments, the CO confirmed his denial of the labor certification. In a letter, he stated the job headings in the ads were drastically distinctive from the headings in the Labor Certification Application. The Employer requested BALCA review of the CO’s denial repeating the same information that they listed in the reconsideration.

In each of the CO’s denials, he did not analyze the Employer’s claims. Even though the Employer made logical arguments, the CO believed the job titles were distinct and it was the end of the story. He did not seem to want to hear the Employer’s opinions.

After a review of the case, BALCA sided with the Employer. They thought the job titles in the advertisements did not unfairly take away job opportunities for US workers. Denial of labor certification in this matter was reversed and the Labor application given back to the CO for certification.

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