Articles Posted in BALCA Decisions

The Board of Alien Labor Certification Appeals (BALCA) affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Design Engineer-Mechanical.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. The Employer responded by sending its recruitment report as well as resumes from U.S. applicants. In response, the CO informed the Employer that they would be required to conduct supervised recruitment. As part of the process, the Employer could only advertise the position in permitted publications and abide by specific advertising conditions. The Employer sent the CO a copy of the proposed job advertisement that was approved by the CO. A few weeks later, the Employer sent copies of the Arkansas State Workforce Agency job order; newspaper ads, on-line job postings from its company web page and a job search website. The CO told the Employer about the resumes that he had received as well.

A few months later, the CO told the Employer that the recruitment time had concluded. In 30 days, the employer was required to submit a comprehensive written report about the recruitment process and the outcomes. In a timely manner, the Employer presented its recruitment results. In the report, the Employer noted it had received resumes from 45 applicants. During the review of the resumes, the Employer cited it considered job applicants based on their education, training, experience as well as trainability. The Employer believed that none of the applicants fulfilled the minimum job requirements and therefore, were not qualified 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 “Senior Systems Analyst.”

Upon evaluating an Employer’s Application for Permanent Labor Certification, the CO denied the Labor Application because he believed it violated PERM regulation 20 CFR 656.17(f)(4). The CO denied certification because “the newspaper advertisement failed to list the correct geographical area of employment with enough specificity to apprise applicants of any travel requirements.” He pointed out the physical area of employment contained in the employer’s job ad in the San Francisco Chronicle as well as hotjobs.yahoo.com does not match the one listed on the ETA Form. The ad lists San Francisco, while Fremont is recorded on the ETA Form. The CO stated these two cities are located in different “Metropolitan Statistical Areas” (MSA).

The Employer filed an appeal to BALCA. They declared that the CO made an error in thinking Fremont and San Francisco were in different MSA’s. The Employer argued that the “advertisements complied with PERM requirements and DOL guidelines for roaming positions.” As evidence, the Employer requested BALCA to take administrative notice of a printout from the Census Bureau’s website which lists the MSA’s, among other evidence. In addition, they wanted the Board to review a “County to County” commuting chart from the San Francisco Bay area. The Employer explained that Fremont is the company’s headquarters but the locations of the job are yet unknown.

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 “Operating Engineer.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied certification of the application because the Employer had placed their State Workforce Agency (SWA) job order more than 180 days prior to the filing of their ETA Form 9089.

The Employer sent a reconsideration request to the CO arguing that “the 180 day period should be calculated based on the end date of the SWA, rather than the date it commenced.” To interpret the regulations otherwise would penalize employers who wanted to run their SWA’s for longer than 180 days. The CO did reconsider but afterwards, he confirmed the denial. Not happy with the outcome, the Employer appealed the decision to BALCA and restated its argument.

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 “Electronics Engineer.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification requesting evidence of the employee’s work experience. The Employer sent back its recruitment documentation as well as the worker’s educational information, among other documents.

Upon review of the Audit response, the CO denied the Labor Certification. The CO believed the applicant’s credentials did not match the position’s minimum job requirements recorded on the Labor application. He stated the worker did not have a Master’s degree or 60 months experience at the time of his hire and only received his Master’s degree after he started working for the company. Overall, the CO declared “the Employer’s job requirements listed on Form 9089 did not represent the Employer’s actual minimum requirements.”

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 “Travel Agent.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. It required the Employer to present the notice of filing documentation. The Employer sent back a copy of the Notice of Filing (NOF).

The CO denied the application for multiple reasons. He stated that the employer did not name the location of where the NOF was posted, as a result, they violated PERM regulation 20 C.F.R. 656.10 (d) (1) (ii). This regulation requires that “the NOF must be posted at employer’s facility or location in two conspicuous places where the employer’s US workers can readily read the posted notice on their way to or from their place of employment.” The regulations also provide that “the documentation requirement may be satisfied by providing a copy of the posted notice and stating where it was posted.”

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 “Field Service Engineer.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. One of the issues present was the fact that the main worksite address on the ETA Form 9089 was the same as the alien’s address. In its Audit response, the Employer provided its recruitment documentation and explained that the position allows its “Field Service Engineer to work from home and to travel to client sites as needed.”

Once the Employer responded, the CO denied certification. The CO indicated the position communicated in its recruitment efforts did not offer the condition to work from home to US workers. This was a violation of PERM Regulation 20 CFR 656.17(f)(7). This regulation requires that an advertisement “must not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.”

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 “Business Development Manager-IV.”

After receiving and reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit. He directed the Employer to present copies of its recruitment records. The Employer responded with its New Jersey State Workforce Agency (SWA) Job order that was administered through America’s Job Exchange (AJE).

Once the CO received the audit materials, he denied certification of the application. The CO cited the position communicated in its recruitment advertising did not match the one listed on the Employer’s ETA Form 9089 in violation of PERM Regulations 656.17 (f)(6). In its Labor Application, the Employer stated the position required “a Master’s Degree and 12 months of experience in the job offered.” In its SWA job order, the experience requirement listed “Mid-Career (2-15 years).”

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination
of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Specialty Chef.

The Employer filed a LC on behalf of an alien worker and it was accepted for processing in September of 2005. In March of 2006, the CO denied the application because of numerous deficiencies. The appeal before the Board only addressed one of the deficiencies, the failure of the Employer to specify the expiration date of the State Workforce Agency (SWA) prevailing wage determination. The Employer’s original petition provided November 2003, as the determination date and stated “N/A” for the expiration date of the SWA prevailing wage determination. The CO’s denial letter addressed the issue concerning the absence of the expiration date. Thereafter, the Employer’s attorney filed a request for review. The Employer’s attorney provided answers for a number of the omissions and submitted additional documentation. In regards to the expiration date of the SWA prevailing wage determination, the Employer’s attorney stated 2004. Subsequently, the CO issued a letter of reconsideration in August of 2008. The CO found that the Employer’s attorney had successfully rebutted several of the deficiencies, but still affirmed the denial of certification based upon a number of reasons. The CO provided that the expiration date of the prevailing wage determination was an important piece of information that needed to be provided in a month, day and year format, consistent with the regulations. The CO then forwarded the case to BALCA. The Employer did not submit an appellate brief in support of its position, but the CO did file a brief urging denial based on the fact that the application was incomplete.
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The Board of Alien Labor Certification Appeals (BALCA) overturned the decision of a Certifying Officer (CO) to deny Labor Certification.

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 (PWD) received from the State Workforce Agency (SWA) along with a copy of the request for the determination. The Employer replied to the Audit by providing a copy of the PWD issued from the Pennsylvania Bureau of Workforce Development Partnership. It did not contain a copy of its original request for a prevailing wage as submitted to the Pennsylvania SWA.

The CO denied labor certification citing the Employer’s failure to provide the request for the PWD in a timely manner. He referred to PERM Regulation 20 C.F.R. § 656.20(b) as his reason for denial. PERM Regulation 656.20(b) declares, “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 “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.

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