Articles Posted in BALCA Decisions

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Nursery Manager.”

After reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. He wanted the Employer to submit a copy of the State Workforce Agency’s (SWA) Prevailing Wage Determination (PWD). The Employer submitted a PWD from “The Survey Group” along with a letter from this company that provided a job description which was similar to the Nursery Manager’s position, specifically, the position was titled – Nursery Technician.

The CO then informed the Employer that they would need to conduct supervised recruitment. The CO ordered the company “to obtain an updated PWD from the National Prevailing Wage Center.” The CO asserted the PWD listed on the Employer’s 9089 Form was no longer valid. As part of its response to the Supervised Recruitment, the Employer insisted that the CO did not have the authority to instruct them to obtain a new PWD. The Employer also sent a draft advertisement that included the original PWD. The CO issued a Draft Advertisement Correction because “the wage offer was lower than the current prevailing wage.” He directed them to send a new advertisement with a PWD that was equal to or surpassed the current PWD.

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 “Assistant Accountant.”

After examining an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification ordering the Employer to submit documentation of the Foreign Worker’s knowledge of various programs at the time of hire. The Employer replied to the Audit with a personal statement from the Foreign Worker stating she had the mandatory understanding of these programs. Also included was a letter from the Employer’s Comptroller confirming at the time of hire the foreign worker possessed the minimum requirements for the job position.

The CO sent a denial letter because he believed the Employer failed to provide substantial evidence of the Foreign Worker’s knowledge of the programs (i.e., he wanted documentation – certifications, licenses, a notarized statement.) He cited PERM Regulation 20 CFR 656.20(b) as the authority of his denial, which states, “a substantial failure by the employer to provide required documentation will result in the application being denied.”

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 “Electrical Helper.”

Procedural Case History – Case was originally accepted by DOL on December 3, 2007. June 11, 2008 CO denied certification. Appeal File was sent to BALCA on April 30, 2010. On April 21, 2011, BALCA vacated the denial and remanded for further processing. This labor application was for a nonprofessional position.

The Atlanta National Processing Center issued a letter directing the employer to provide evidence that it was a bona fide business entity. Additionally, the CO issued an Audit notification in June 2011. The CO asked the employer for copies of the newspaper tear sheets from its Sunday newspaper advertisements. The CO gave the Employer a one month deadline to submit its response. The Employer provided its response as well as a note asking for a 30 day extension on the tear sheets. The employer’s lawyer stated they had requested it but had not received it at the time of mailing the response.

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 “AMI Montessori Elementary Teacher.”

After reviewing an Employer’s Application for Permanent Labor Certification, the CO denied certification of the application. He believed the Alien Worker did not meet either the “primary or alternative educational requirements” that were listed on the labor application. In Section J.11, the Employer checked ‘OTHER’ on the application under Highest Level of Education and later clarified in Section J.11.A that ‘OTHER’ classification was AMI Certification.

The Employer sent a reconsideration request to the CO. In its argument, the Employer stated the AMI Certification is “higher than a Bachelor’s but lower than a Master’s or Doctorate.” In addition, they submitted a letter from the Montessori Training Center that one of its admission requirements for their program is a Bachelor’s Degree. The Employer also sent an Educational Assessment document which determined the Alien Worker had “the equivalent of a US Bachelor’s Degree based on work experience and postsecondary education.”

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Director of Sales.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied certification of the application for multiple reasons. Most importantly, the Employer did not include their name on their Notice of Filing (NOF) in violation of PERM regulation 656.10(d). PERM regulation 656.17 (f)(1) mandates that the advertisements “name the employer.”

The Employer sent a reconsideration request to the CO. In its argument, the Employer stated the NOF was acceptable regardless of the omission of their name. The Employer argued that public access to its building is limited and it is very plausible that only the company’s three employees would have access to the filing. With its request, the Employer submitted multiple documents including their articles of incorporation; federal tax return; photographs of the facility & bulletin posting area; certifications of accreditation; Florida Resale Certificate for Sales Tax; lease agreements; Google Map print-outs; and Miami.Dade.gov Property Information. With its Reconsideration Request, the Employer relied upon the Stone Tech decision.

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 “Maid.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied certification. He cited the Employer’s failure to “make a selection for Section H-1” of the 9089 form as grounds for the denial. The Employer submitted a reconsideration request stating that they had completed Section H-1.

The CO issued “a request for information about the bona fides of the Employer’s business.” In addition, he sent an Audit notification to the company’s attorney. After the deadline had passed to receive the Audit response, the CO affirmed its initial denial of labor certification. The Employer sent a reconsideration request to the CO arguing that it never received the Audit notification or the request for information. In its argument, the Employer sent a letter from their General Manager that stated he had never received a letter. They also provided email documentation from the Atlanta Processing Center which cited the Employer’s attorney’s response to the request for information from a request initially made in 2008. The CO denied reconsideration stating the Audit notification was mailed to the address on record, no change of address was recorded within the file, and the other letters were delivered and responded to with no problem.

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 “Forman.”

Upon evaluating an Employer’s Application for Permanent Labor Certification which provided that the employer was a closely held corporation, partnership, or sole proprietorship in which the alien has an ownership interest, or …there is a familial relationship between the owners, stockholders, partners, corporate officers, incorporators, and the alien, the CO issued a “Request for Additional Information.” In 30 days, he needed the following evidence: (1) Proof of a federal employer identification number; (2) Proof that the company was a business entity; and (3) Proof of the physical location of the company. It appears from the record that most of the information requested by the CO already accompanied the Application.

A few months later, the CO delivered a “Notice of Supervised Recruitment.” The Employer was required, in 30 days, to send a draft job advertisement, corporate financial & structure documentation as well as any family relationship the Alien has to the Employer. In a timely fashion, the Employer responded by providing their business license, operating agreement, IRS FEIN number, organization certificate from the Virginia State Corporation Commission, and a letter from the Company’s owner describing his relationship to the Alien.

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of Vice President, Mergers & Acquisitions.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO informed the Employer that he would need to oversee their PERM recruitment. As part of the process, the CO sent the employer separate instructions for its advertisement and recruitment report. In the instructions for the recruitment report, he requested the Employer to “state the names, addresses and provide resumes (other than those sent to the employer by the CO) of the U.S. workers who applied for the job opportunity.

A few months later, the Employer presented the outcomes of its PERM recruitment in its recruitment report. The Employer indicated they had received 70 applications from U.S. Workers; and 7 applications from non-U.S. workers. Out of the 70 U.S. candidates, only three of the candidates were interviewed for the position. Based on the interviews, the Employer decided none of the applicants were qualified because they lacked the required critical experience and skills. In the recruitment report, the Employer identified the name of each applicant and provided the reason each candidate was disqualified. However, in the actual report, the Employer did not state the addresses of the applicants. In the report, they wrote a note to the CO that specified the following, “The resumes of the applicants who responded directly to JP Morgan Chase are attached to this report. Please note that the resumes, which are part of this recruitment report, include the name and address of each applicant.”

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 “Software Engineer.”

After obtaining & examining an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification ordering the Employer to submit its Prevailing Wage Determination (PWD) and other requested documentation. The Employer replied to the Audit by providing the PWD as well as the other documents.

The CO denied the labor certification stating the prevailing wage on the ETA form 9089 did not match the one listed on the PWD. He cited a violation of PERM Regulations 656.10(c) (1), 656.40 AND 656.41. In addition, the Employer’s Notice of Filing did not contain the job requirements or duties as listed on the ETA Form 9089. The Employer requested a reconsideration of the denial stating the prevailing wage inconsistency was an unintentional harmless error. The Employer also believed all of its audit response materials were compliant with PERM regulations.

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Multi-Media Artists & Animators.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. After the Employer responded, the CO denied certification of the application for multiple reasons. First and foremost, the position advertised did not match the one listed on the Employer’s ETA Form 9089 in violation of PERM Regulations 20 C.F.R. § 656.10 and § 656.17 (f)(3). These regulations require that an advertisement “provide a description of the vacancy specific enough to apprise a US worker of the job opportunity for which certification is sought.” The CO revealed that the employer’s web advertising specified the position required a minimum of a high school diploma. On the Employer’s ETA Form 9089, it listed a Bachelor’s degree plus 24 months, or 4 years of work experience as an alternative to the degree.

The Employer sent a reconsideration request to the CO. In its argument, the Employer stated the government made a clear error in denying the labor application. The CO delivered a second denial and forwarded the case to BALCA for review.