BALCA Vacates Denial in the Interest of Fundamental Fairness

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

After accepting the Employer’s Application for Permanent Certification on October 26, 2007, the CO issued an Audit Notification which requested documentation of the Notice of Filing. The Employer responded to the Audit and submitted three pieces of evidence, but an actual copy of the Notice of Filing was not included. A status update of the case was requested by the Employer on June 9, 2008 since no reply had been given since the submission of the audit response. A second request for a status update was sent on November 25, 2008. The denial of the case was issued on December 9, 2008 by the CO who cited failure to produce a copy of the Notice of Filing as well as a difference in the wages listed on the Prevailing Wage Determination (PWD) and ETA Form 9089. The Employer submitted a request for review that included copies of the Notice of Filing and PWD. The Employer also stated in his request for review that the two documents were previously submitted in the audit response. Additionally, the Employer clarified a second PWD was acquired when it was realized the state department of labor had left the prevailing wage blank. However, the CO concluded the denial was valid on November 17, 2009. The CO argued that the Employer did not originally submit the Notice of Filing following the Audit Notification and the copy included in the request for review could not be considered as it was new evidence; however, the CO did accept the Employer’s explanation as to why the wage on the PWD and Form 9089 did not match. The case was then forwarded to BALCA and a Notice of Docketing was issued on December 7, 2009. In the appellate brief, the Employer argued that the Notice of Filing was included in the Audit response, suggesting it may have been lost. The Employer’s attorney also contested there was a copy of the Notice of Filing in her copy of the audit response.

PERM regulation 20 C.F.R. § 656.20(b) controls and it provides that an application can be denied by the CO if the Employer fails to provide the requested documentation following an Audit Notification.

In the instant case, the Employer did respond to the Audit Notification in a timely manner but the documentation submitted did not include the Notice of Filing, which the Employer suggests may have been lost or accidently left out of the response. BALCA found that the Notice of Filing was fully intended to be included in the audit response and its absence was either due to mistake by the sender or recipient.

Accordingly, the Board vacated the decision of the CO in denying labor certification and returned the case to the CO for complete processing.

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