BALCA upholds denial of Labor application – Unduly restrictive job requirements

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 Dispatcher. This LC was filed prior to the effective date of the “PERM” regulations.

The employer, a limousine company filed a LC on behalf of the alien worker in March of 2005. The employer described the job position and requirements in the application as: coordinate schedules of limousines; report disruption to service using radiotelephone, and inspect mechanical malfunctions of vehicles along route and direct repair. Additionally, the employer required four years of experience for the position offered. In March of 2007, the CO issued a Notice of Findings (NOF) proposing to deny certification since the experience requirement exceeded the Specific Vocational Preparation (SVP) for the job as set forth in the Dictionary of Occupational Titles (DOT). The DOT listed the experience for the position as “over 1 year and up to 2 years” for Dispatchers, Except Police, Fire and Ambulance. The CO concluded that the job opportunity included an unduly restrictive job requirement in violation of the regulations. The CO provided three ways in which the employer could rebut its findings: submit evidence that the requirement arises from a business necessity; or show that the job requirement bears a reasonable relationship to the occupation in the context of the employer’s business and is essential to perform the job duties described by the employer, and that the job as currently described existed before the alien was hired; or reduce the requirements to the DOT standard. On rebuttal, the employer submitted no evidence in regards to what the CO had requested. The employer argued that the occupational title of Traffic Inspector – Dispatcher with an SVP of two to four years more closely matched the duties listed in the application. The employer based his argument on the similarities of the job duties. Thereafter, the CO issued its final determination denying certification. The CO found that the Employer’s rebuttal was a request to re-code the position to Traffic Inspector-Dispatcher, and the CO declined to approve that request. Subsequently, the Employer requested BALCA review.

Upon BALCA review, it was determined that where the employer cannot document that the job requirement is normal for the occupation or that it is included in the DOT, the employer must establish business necessity for the requirement. The basis of the employer’s argument was that the job opportunity should have been coded as Traffic Inspector-Dispatcher which has a SVP 7 or two to four years of experience. The job requires coordinating the schedules of streetcars, buses, or railway transportation systems, and includes negotiations with local governmental personnel to eliminate hazards. However, the CO concluded that the position was that of Dispatcher which more closely resembled the job duties listed within the application for labor certification. Upon review of the three job descriptions, the Board agreed with the CO that the proper job code for the occupation in the application is that of Dispatcher.

Additionally, according to the regulations, an employer’s rebuttal evidence must rebut all of the findings in the NOF and that all findings not rebutted shall be deemed admitted. The Employer did not rebut the CO’s findings set forth in the NOF.

Accordingly, the CO properly denied labor certification .