BALCA Vacates Denial of Labor Certification – NOF posted on Saturday & Sunday

The Board of Alien Labor Certification Appeals (BALCA) recently vacated and remanded the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Chefs and Head Cooks.”

The CO originally denied certification on May 5, 2008 because the sponsorship of the immigrant worker could not be verified by the Employer. On June 2, 2008, reconsideration was requested by the Employer due to the fact that the immigrant worker’s contact individual had recently stopped working for the restaurant. An Audit Notification was filed by the CO on December 23, 2009 requesting the Employer to provide its Notice of Filing and recruitment documents as well as present evidence to justify the foreign language requirement. Certification was denied by the CO on February 9, 2010 on the grounds that the Notice of Filing was “posted for fewer than 10 consecutive business days.” The Employer submitted another request for reconsideration, citing that the restaurant is in fact open seven days a week, making the dates supplied (May 14, 2007 to May 24, 2007) sufficient enough for a Notice of Filing posting requirement. Even though the Employer gave evidence that Saturdays and Sundays are the busiest days at the restaurant and that there is a need for employees on those days, the CO still denied labor certification stating business days are only defined by Monday through Friday, excluding federal holidays and weekends.

PERM regulations 20 C.F.R. § 656.10(d) controls and its provides the posting of a Notice of Filing by an Employer must be posted “for at least 10 consecutive business days” but does not specify what determines a business day. The CO denied certification based on the fact the Notice of Filing was not posted for at least 10 business days but the Employer provided evidence that the restaurant operated on Saturdays and Sundays, therefore requesting weekends be considered business days. BALCA disagreed with the CO saying business days are not confined to Monday through Friday. The Employers requirement was fulfilled because the Notice of Filing was posted for 10 consecutive days when “employees [were] on the worksite.” BALCA is giving the Employer another opportunity to demonstrate its Notice of Filing requirement due to the fact that the restaurant is open on the weekends.

Accordingly, the BOARD vacated the decision of the CO in denying labor certification and remanded for further proceedings consistent with this decision.

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