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 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) 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 “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) 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.

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 “Hardwood Floor Installer.”

Upon evaluating the Employer’s Application for Permanent Labor Certification, an Audit was issued. In this Audit Notification, the CO asked the Employer to explain why US workers were rejected. After reviewing the Audit response, the CO denied the labor certification stating the Employer rejected three US applicants for reasons that were not job related. The CO “found the rejections were based on the failure to meet the Employer’s job requirement of having two years of hardwood floor installation experience.” He discovered three of the candidates have other experience in the construction industry that he believed would meet the requirements for the job.

The Employer requested reconsideration and BALCA review. They argued the CO was wrong in judging these three candidates were qualified for the position. Even though the applicants did have experience in “general carpentry/and or construction,” they did not believe this experience was enough to meet the requirements of the Hardwood Floor Installer job. The Employer included a Business Necessity Letter in its Audit response materials. The Employer pointed out that one of the candidates did have skills in hard wood flooring installation but he did not list how he obtained that experience. The employer also provided proof to the CO of letters that they had sent to the US worker applicants asking for them to contact the company with further information on their qualifications. The Employer claimed none of them responded to the letters.

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 “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 “Indian Vegetarian Cook.”

After receiving and reviewing the Employer’s Application for Permanent Labor Certification, the CO issued an Audit. He directed the Employer to present a signed notarized statement attesting to the sponsorship of the Alien. In addition, the CO requested answers to several questions concerning the position and the Foreign Worker. The Employer responded to the Audit request in a timely manner.

Once the CO received the audit materials, he denied certification of the application. The Employer did not provide the notarized statement that was requested in the Audit Notification Letter. The Employer sent a reconsideration request to the CO. The Employer stated that “by signing and submitting the ETA Form 9089, it had attested it had a job opportunity available.” The CO re-affirmed his decision and stated that the Employer’s failure to send back a notarized letter with the Audit was a valid reason for denying certification. The CO forwarded the case to BALCA for review.

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 “Indian Vegetarian Cook.”

After receiving and reviewing the Employer’s Application for Permanent Labor Certification, the CO issued an Audit. He directed the Employer to present a signed notarized statement attesting to the sponsorship of the Alien. In addition, the CO requested answers to several questions concerning the position and the Foreign Worker. The Employer responded to the Audit request in a timely manner.

Once the CO received the audit materials, he denied certification of the application. The Employer did not provide the notarized statement that was requested in the Audit Notification Letter. The Employer sent a reconsideration request to the CO. The Employer stated that “by signing and submitting the ETA Form 9089, it had attested it had a job opportunity available.” The CO re-affirmed his decision and stated that the Employer’s failure to send back a notarized letter with the Audit was a valid reason for denying certification. The CO forwarded the case to BALCA for review.

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 “Cook Assistant, Japanese Cuisine.”

After audit, the CO denied the labor certification stating the prevailing wage on the ETA form 9089 did not match the one listed on the prevailing wage determination (PWD). The Labor application listed “$10.04” per hour and the prevailing wage determination listed “$10.14” per hour. The Employer requested reconsideration of the denial stating the prevailing wage discrepancy was “a minor typographical error”, “a clerical mistake of minor importance,” and that “no potential applicant was exposed to the clerical error.” They cited its Notice of Filing included the accurate wage. The Employer also argued in order to correct and re-file the labor application they would have to re-start the time-consuming recruitment process all over again.

After reviewing the reconsideration, the CO affirmed its denial of certification. He believed that under the PERM regulations, “employers must present an application that is complete and accurate to ensure the integrity of the PERM process.” The CO also pointed out that “$10.04” was typed twice on the application. The CO based his decision on the 20 C.F.R. 656.10(c)(1), which requires employers to certify in applications for permanent employment certification that the “offered wage equals or exceeds the prevailing wage.” The CO forwarded the case to BALCA for review.