BALCA vacates denial of Labor Certification – Fundamental Fairness requires Employer be given a Second Opportunity to Produce the Relevant Document

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 Professional position of “Photographer.”

The employer filed a LC which was accepted for processing on May 21, 2007. ETA Form 9089 indicated that the State Workforce Agency (SWA) determined the prevailing wage to be $7.31 per hour, and the skill level, “Professional.” Additionally, the employer did not provide a name or date of the second newspaper or professional journal advertisement. The Employer had attached several documents to ETA Form 9089, including documents showing the Alien’s qualifications and visa status; a March 2007 job order placed with the NY State Department of Labor; a print out of a web page showing the Occupational Employment Statistics (OES) wages for a photographer in the Middleton, NY area; tear sheets from one newspaper advertisement; and resume and interview notes for a couple of the rejected job applicants. The CO thereafter issued a letter denying certification based on the fact that the Employer had not selected a proper Skill Level, and did not provide the name of the second advertisement or professional journal. The employer then requested reconsideration by submitting a copy of the OES print out indicating that no skill level was set for the position of Photographer, and provided evidence of several additional newspaper advertisements. The record indicates that the Employer was asked to provide a copy of the SWA PWD to the DOL analyst and submitted a new SWA PWD for 2009, instead of one dated for 2007. The CO determined that its basis for denial was valid and forwarded the appeal file to BALCA.

PERM Regulation 20 C.F.R. § 656.24(a) controls and it provides that the employer must request a prevailing wage determination from the SWA having jurisdiction over the proposed area of intended employment. The SWA must enter its wage determination on the form it uses and return the form with its endorsement to the employer. Furthermore, the employer must maintain the SWA PWD in its files and be prepared to submit it if requested in the course of an audit.
In the instant case, the Employer should have obtained a PWD from the SWA prior to filing ETA Form 9089, and entered the skill level assigned by the SWA on Form 9089. However, the Board found that it may be possible that the Employer did not understand that what the CO was asking for was the 2007 PWD that the Employer should have obtained prior to filing and not a new PWD. Subsequently, the Board provided that fundamental fairness requires that the Employer be given a second opportunity to produce the relevant PWD.

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

Matter of Galaxy Studios, Inc.

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