BALCA upholds denial of Labor application – Employer failed to comply with Prevailing Wage Determination Instructions

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Cook, Private Household.

The Employer submitted the application by mail. The application was accepted for processing in January of 2006. In the application, the Employer indicated that the prevailing wage determination (PWD) was based on an ‘Employer Conducted Survey.’ The application failed to include the determination and expiration dates for the prevailing wage determination. In April of 2006, the CO denied certification based on the failure to complete the section dealing with the prevailing wage determination. The CO received the Employer’s request for reconsideration in May of 2006. The Employer stated in its request that it did not receive a response from the State Workforce Agency (SWA), and thereafter decided to adopt its own prevailing wage determination based upon speaking with other similarly situated Employers. The Employer submitted along with the request a new version of Form 9089, in which it indicated ‘PW based on Employer Conducted Survey,’ and a copy of the fax to the Maryland, SWA. On reconsideration, the CO denied the application because the Employer failed to indicate the expiration date of the prevailing wage determination. The CO then forwarded the case to the Board. Counsel for the Employer did not file an appellate brief, whereas the CO did file an appellate brief stating that even when an Employer bases its PW determination on a survey, the survey itself must be submitted to the SWA, who then decides whether the survey was acceptable and issues the prevailing wage determination.

Upon BALCA review it was determined that the PERM regulations provide that an Employer must request a prevailing wage determination from the SWA having jurisdiction over the area of intended employment. The regulations provide that the SWA must specify the determination date and expiration date of the PW determination. The regulations at 20 C.F.R. § 656.40(c) state that if an Employer uses a SWA PWD, the Employer must file the petition or begin recruitment within the validity period of the PWD.

Entry of the expiration date for the SWA PWD on Form 9089 is essential to the CO’s determination of whether the case was filed or recruitment began within the authorized period. If, like in the present case, there is no expiration date for the PWD, it is impossible for the CO to make a determination on the validity of the PWD. Additionally, if an Employer elects to use a survey for the PWD, the regulations indicate that an Employer can only request that the SWA use its survey for the PWD. With its request to the SWA, the Employer must provide documentation to establish that the survey is valid. Still, it is the SWA who makes the ultimate PWD, not the Employer. Only the SWA has the authority to issue PWDs.

Accordingly, the CO properly denied certification.