BALCA upholds denial of Labor Certification – Failure to provide documentation requested in Audit Notification Letter

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

The employer filed a LC on behalf of an alien worker and in November of 2007, the CO issued an Audit Notification letter requesting among other documents; Notice of Filing, the recruitment report, the prevailing wage determination, and documentation of recruitment. The Employer’s attorney filed a response indicating that it had a prior approved labor certification for the same position with the exact same requirements, therefore the present application warranted an approval for certification, and if not, the CO needed to thoroughly explain why. In January of 2008, the CO issued a letter denying certification. In February of 2008, the Employer filed a request for review arguing that the CO’s determination was unfair and arbitrary. The CO issued a letter of reconsideration in February of 2009 and provided that the Employer failed to comply with the Audit therefore, the denial was appropriate.

The CO then forwarded the case to BALCA. The Employer filed a brief on the same basis as its earlier argument (the prior approval of the earlier application for the same position, same requirements warranted an approval of the present application). The CO filed a letter brief arguing that its decision should be affirmed by the Board.

Upon BALCA review, regulation 656.20(b) controls and provides that a “substantial failure by the employer to provide required documentation will result in that application being denied under § 656.24 ….” Here, the CO requested that the Employer provide certain documents in response to its audit notification letter. The Employer failed to provide the requested documents, and failed to give a reason for not providing the documents. The Board further provided that although similar applications have been certified in the past, it does not in any way excuse an employer from producing documentation in response to an Audit Notification.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.