BALCA Vacates Denial Notwithstanding Incomplete ETA 9089

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Medical & Clinical Laboratory Technologist”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification demanding the employee’s work credentials. The Employer sent the worker’s qualifications including prior work experience from his former employer to the CO for review.

Upon review of the Audit response, the CO denied the Labor Certification Application. The CO believed the credentials recorded on the application did not match the position’s minimum job requirements. The Employer sent a reconsideration request to the CO. In the argument, the Employer stated that the employee had the required two years of previous work experience, and included again for the record, documentation of the beneficiary’s previous work experience. Additionally, since the company opened in 1998, they had not hired anyone with less than two years’ experience for this position.

Once again, the CO denied certification because the Employer did not list the employee’s qualifying experience on the Labor application. The CO forwarded the case to BALCA for review requesting confirmation of his rejection.

After BALCA’s examination of the case, the administrative judge sent the case back to the CO for processing. The Board believed that the CO declined to study all of the Employer’s documentation prior to reaching his decision to deny. Even though the Employer did not include the entire employee’s prior work experience in the Labor Application, BALCA took into consideration the evidence submitted in the Audit & reconsideration responses. This evidence clearly indicated the employee’s qualifications exceeded the minimum requirements for the position.

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