BALCA upholds denial of Labor application – Employer failed to comply with advertisement regulations

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 Horse Trainer.

The Employer submitted the application by mail. In the application, the Employer indicated that the job was first advertised in the New York Post on November 11, 2005 (three days, Friday, Saturday, Sunday) and the second advertisement was run on December 17, 2005 (three days, Saturday, Sunday, Monday). The CO had the mailed in application re-keyboarded, and the new version only stated 11/11/2005 and 12/17/2005 as the first and second dates that the advertisements were run. Subsequently, in November of 2006, the CO issued a denial letter on two grounds. The first reason related to the dates of the placement of a State Workforce Agency (SWA) job order, and the other reason related to whether the position was advertised in a Sunday edition of a newspaper of general circulation. Thereafter, the Employer filed a motion for reconsideration. The Employer submitted tear sheets establishing that a Sunday advertisement was run in the New York Post on November 13, 2005 and on December 18, 2005. In June of 2008, the CO denied reconsideration providing that the tear sheets revealed that the advertisements did not name the Employer, did not indicate the geographic area of employment, and did not contain a wage rate at least equal to the prevailing wage. Thus, the CO declared that the denial was valid because the employer had not provided evidence that it placed a qualifying advertisement meeting all regulatory requirements. The CO then forwarded the case to the Board. Counsel for the Employer did not file an appellate brief to address the problems the CO identified in regards to the advertisements, whereas the CO did file an appellate brief detailing the applicable statutory regulation and the Employer’s alleged violation.

Upon BALCA review, it was determined that the advertisements submitted to support the motion for reconsideration were clearly in violation of the PERM regulations. They did not specify an employer, or a geographic area of employment, and the wage stated was substantially lower than the prevailing wage for the position. The Board held that there was a fundamental lack of compliance with the regulatory requirements for newspaper advertisements. The Board noted that the Employer was given an opportunity to contest this issue by submitting an appellate brief, but failed to take advantage of the opportunity. Accordingly, the CO properly denied certification.