BALCA upholds denial of Labor Certification – Employer Offered Terms and Conditions of Employment Less Favorable than those Offered to the Foreign Worker

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification (LC) for three alien workers for the position of “Senior Programmer Analyst.”

The employer filed a LC which was accepted for processing on August 15, 2007. ETA Form 9089 indicated that the job duties consisted of “design, develop, plan, coordinate and implement advance software module components in complex computing environment. For specific skills, the employer required: C++, ASP, COM/DCOM, Scripting, Win NT/2000/98, UNIX, Oracle and VB. Thereafter, the CO issued an Audit Notification letter requesting evidence of recruitment and other required documentation. The Employer responded by submitting copies of its newspaper advertisements, as well as the other required documentation. Thereafter the CO denied certification for several reasons: (1) the Notice of Filing did not contain the location of the job opportunity; and (2) the Employer did not provide adequate documentation of the mandatory print advertisements as requested. Specifically, the tear sheets submitted were not legible. The Employer responded by requesting reconsideration and submitted enlarged, legible copies of its newspaper advertisements. The CO issued a letter of reconsideration indicating that denial was proper because the advertisements contained additional job requirements not listed on the ETA Form 9089. Specifically, the newspaper advertisements stated that travel was required for the position.

PERM Regulation 20 C.F.R. § 656.17(f)(7) controls and it provides:

Advertisements placed in newspapers of general circulation or in professional journals must “not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.”

In the instant case, the advertisements stated that travel was required for the position, which was not listed on Form ETA 9089. In Summary, since the Employer did not include the travel requirement as a requirement for the position on ETA Form 9089, the Employer’s conditions of employment in its newspaper advertisement were less favorable than those offered to the Alien, in violation of 20 C.F.R. § 656.17(f)(7).

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

Matter of Xpedite Technologies, Inc.

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