H1B Visa Lawyer Blog
The Board of Alien Labor Certification Appeals (BALCA) recently vacated 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 in February of 2006. In November of 2007, the CO denied certification under 20 C.F.R. § 656.3 because he was unable to verify the Employer as a bona fide entity. The CO did not explicitly request proof of the employer’s Federal Employer Identification Number (FEIN). In response to the denial, the Employer submitted a copy of a prior approved labor certification arguing that it was for the same employer, same address, same telephone number, and same FEIN. The Employer also submitted a Yellow Pages advertisement for the company, and the company’s business license in a request to the CO for reconsideration. Thereafter, in March of 2009, the CO issued a letter of reconsideration providing that the application would be denied because the applying company could not be verified as a bona fide entity under the regulations. Specifically, the CO stated that the other application contained a FEIN different from the application presently under review; therefore it did not serve as verification of a bona fide entity. Accordingly, since the Employer failed to provide proof of a valid FEIN, the denial was appropriate.
The CO then forwarded the case to BALCA. The Employer submitted an appellate brief arguing that at no time did the CO clarify that he wanted proof of a valid FEIN, and furthermore, never requested such proof. The CO filed a letter brief arguing that its decision should be affirmed by the Board because the Employer did not provide a valid FEIN as required under the regulations.
Upon BALCA review, regulation 20 C.F.R. § 656.3 controls, it provides that to be considered an “Employer” for the permanent labor certification program, an entity must possess a valid FEIN. The Board agreed with the CO that the two application’s FEIN’s did not match, but determined that the Employer’s argument regarding the absence of a request for the FEIN had some merit. The Board determined that the CO’s denial did not address the issue sufficiently to provide the Employer an opportunity to appropriately address the situation. The Board concluded that fundamental fairness was required, and ordered the CO to allow the Employer to clear up the inconsistency in its FEINs submitted.
Accordingly, the CO’s denial was vacated for further proceedings consistent with the Board’s decision.