BALCA Says Content Requirements for Ads Do Apply to SWA Job Orders

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 Managing Consultant.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. He instructed the Employer to submit its recruitment documents. Once the Employer responded, the CO denied certification of the application for multiple reasons. First and foremost, the position communicated in its State Workforce Agency job order did not match the one listed on the Employer’s ETA Form 9089 in violation of PERM Regulation 656.17 (f)(4) – the CO initially denied the application citing under 656.17(f)(6), which was incorrect. The CO cited the employer’s SWA job order neglected to mention travel requirements that were listed on its Form 9089. On the Employer’s form, it specified, “the work will be performed at various client sites throughout the US.” The CO stated a second reason for denial, as he believed the Employer did not “provide adequate documentation to show that it advertised the job opportunity on its website.”

The Employer sent a reconsideration request to the CO. In its argument, the Employer stated the ETA form did contain material that surpasses the job conditions on the SWA job order rather than the other way around. The CO delivered a second denial stating that the SWA job order did not list “the work will be performed at various client sites throughout the US,” yet this statement was written on Form ETA 9089. He forwarded the case to the BALCA.

After BALCA’s examination of the case, the board sided with the CO. The Board deemed the Employer clearly violated the PERM regulations because ‘the geographic area of employment contained in the SWA job order did not match the geographic area of employment described in the ETA Form 9089.’ On the Form 9089, the Employer clearly lists the geographic location as Somers, NY and includes “various client sites throughout the US.” However, the SWA job order neglects to mention it. BALCA affirmed the denial of the labor certification based on these grounds.

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