H1B Visa Lawyer Blog

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 “Production Supervisor.”

Upon evaluating the Employer’s Application for Permanent Labor Certification, the CO denied the Labor Application because he believed it violated PERM regulation 20 C.F.R. 656.17(f)(3), as made applicable by regulation 20 CFR 656.10(d)(4). The CO stated the Employer’s Notice of Filing (NOF) did not include the requirement of having the “ability to speak Spanish” that was listed on the Employer’s 9089 form. The regulations require that an advertisement “provide a description of the vacancy specific enough to apprise the US workers of the job opportunity for which certification is sought.”

The Employer sent a reconsideration request to the CO. In the argument, the Employer stated their NOF met the criteria, as it provided enough information for job applicants and by omitting the Spanish requirement, it would have allowed more candidates to apply.

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.