Articles Posted in BALCA Decisions

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 “Marketing Manager.”

Upon evaluating an Employer’s Application for Permanent Labor Certification, the CO ordered the Employer to present copies of its recruitment efforts. The Employer provided a copy of its notice of filing, job order with the Washington State Workforce Agency (SWA), as well as newspaper ads placed in the Seattle Times. In addition, they submitted a copy of the company’s recruitment report.

After reviewing the recruitment data, the CO denied Certification because he believed it violated PERM regulation 20 CFR 656.17(f)(6), which provides that additional language not found on the ETA Form 9089 exceeds the job requirements for the position. The CO stated the Employer’s Notice of Filing (NOF), SWA job order, newspaper advertisements and web advertisements all listed “may require employer-reimbursed travel.” The phrase was not listed on the Employer’s 9089 form.

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 “Instructional Coordinator.”

After reviewing an Employer’s Application for Permanent Labor Certification, the CO denied the application, without audit or a request for additional information, stating that the position did not qualify as a college or university teacher. The CO considered the Instructional Coordinator position as a professional occupation for which the Employer was required to conduct additional mandatory recruitment efforts.

The Employer sent a reconsideration request to the CO. In its argument, the Employer reaffirmed that the position was a university instructor. They submitted additional documentation to support their claim. They provided a detailed description of the position covering the job duties and experience qualifications. This description mentioned “effective teaching in the library instruction program.” The second piece of evidence included a memorandum from the Dean of the University Libraries. In his memorandum, the Dean summarized the Applicant’s position as a Faculty Member in the Division of Library Services, discussed the Applicant’s responsibilities as an Assistant Professor and referred to the Applicant as “an excellent classroom teacher providing effective, creative and critical learning experiences for our students.”

The Board of Alien Labor Certification Appeals (BALCA) recently reversed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Business Development Specialist.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied certification because the job title recorded in the two newspaper advertisements communicated the job title as “Business Development VP” as an alternative to “Business Development Specialist.” The CO thought this inconsistency was an infringement of PERM regulations 20 C.F.R. § 656.10 and 20 C.F.R. § 656.17(f)(3).

PERM regulation 20 C.F.R. § 656.10(c) (8) requires the petitioning employer to demonstrate that the job has been visibly accessible to any U.S. worker. The PERM regulation § 656.17(f)(3) requires any print advertisement to specifically detail the job requirements in order to give US workers the chance to apply for the position.

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.

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 “Home Health Care Aide”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. He asked the employer to provide more information about their print advertising for the job.

The CO denied the application declaring that the Employer failed to deliver sufficient documentation for the mandatory print advertisements. The Employer did not provide copies of the advertisement that contained both the name of the newspaper as well as the date of publication, He cited the Employer was in violation of PERM regulation 20 C.F.R. 656.17(e)(1)(i)(B)(3) and 656.17(e)(2)(ii)(C).

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 “Producer.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. It required the Employer to show proof of the State Workforce Agency’s (SWA) job order as well as all resumes received in connection with the position. The Employer responded and the CO continued to review the application.

The CO denied the application based on two different PERM regulations. PERM regulation 20 C.F.R. 656.17 (e)(1)(i) requires that “two print advertisements are mandatory for all applications involving professional occupations.” These advertisements must run on two different Sundays in the area of intended employment. The Employer placed the ad for the Producer position in the Wall Street Journal (WSJ), which does not qualify as a professional journal, and could not be used in lieu of the mandatory Sunday advertisements as required by the PERM regulations, because the ad was not run on a Sunday. Furthermore, the CO indicated in his denial that the employee did not meet the minimum requirements of the position. He cited PERM regulation 20 C.F.R. 656.17(i)(1).

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 “Literary & Media Specialist”.

The CO denied the application stating that the Employer failed to provide sufficient documentation of a radio advertisement. He cited it was in violation of PERM regulation 20 C.F.R. 656.17(e)(1)(ii)(J).

PERM regulation 20 C.F.R. 656.17(e)(1)(ii)(J) expects employers to provide a copy of an advertisement as well as a written confirmation from the radio or television station stating when the ad was aired.

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 “Battery Engineer.”

The CO denied the application stating that the Employer’s web posting did not identify the job location. He cited it was in violation of PERM regulation 20 C.F.R. 656.17(f). PERM regulation 20 C.F.R. 656.17 (f) requires that an advertisement must indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.

The Employer requested a review of the CO’s denial stating that the company conducted four additional recruitment steps rather than just the three that are required. In the recruitment process, they posted the position on a job search website, advertised in a local newspaper, advertised through their employee referral program, and posted the job position on their company website.

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 “Senior Commissioning Engineer.”

After obtaining & examining an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification ordering the Employer to submit “a copy of the Prevailing Wage Determination received from the State Workforce Agency (SWA), along with a copy of the request for the determination submitted to the SWA.” The Employer responded to the Audit but did not include the SWA prevailing wage determination or a copy of the request.

The CO denied labor certification citing the Employer’s failure to provide the prevailing wage determination as issued by the SWA. He cited PERM regulation 20 CFR 656.20(b) as the source of his denial. PERM regulation 20 CFR 656.20(b) provides “a substantial failure by the employer to provide required documentation will result in that 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 “Computer Software Engineer.”

The CO denied the application stating that the Labor application is incomplete and inconsistent with the submitted information from the employer and the applicant. On the Labor application, the Employer’s physical address is listed as Martinsburg, West Virginia but their phone number’s area code is Arlington, Virginia. The applicant’s home address is listed in Martinsburg, West Virginia but his phone number’s area code -571 is representative of Leesburg, Virginia. As additional proof, the CO declared the Employer had signed in Section N, of the LCA, that the information submitted was “true and accurate to the best of its knowledge.”

Perm regulations require an employer seeking to apply for permanent labor to file an ETA Form 9089.20 C.F.R. & 656.17(a). These regulations state that any incomplete applications will be denied.