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 “Translator.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied certification. The CO cited the Employer’s ETA Form 9089 indicated the job as non-professional; however, the Standard Occupational Classification (SOC) for the occupation listed is found on the list of Professional occupations from Appendix A of the Preamble to 20 CFR 656. The CO stated the Employer did not oversee the appropriate recruitment process.

The Employer sent a reconsideration request to the CO arguing that the position of “Translator” is not located on the Professional Occupations list. They argued their Labor application was correct and their recruitment was suitable for the non-professional position. In response, the CO sent the Employer a “Request for Information.” The Employer offered the requested information. Upon review of this information, the CO sent an Audit notification. The Employer presented the State Workforce Agency (SWA) job order and other documentation as requested.

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 “Landscape Tech.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification requesting the Employer to present documentation of its Notice of Filing (NOF). Once the CO received the Audit materials, he denied the Labor Application on the ground that the Employer failed to confirm that the NOF was posted for ten (10) consecutive business days between 30 and 180 days before filing its ETA Form 9089, in violation of PERM regulation 20 CFR 656.10(d).

The Employer sent a reconsideration request to the CO. In his response to the reconsideration request, the CO requested the Employer, in 30 days, present a complete copy of their ETA Form 9089, a complete copy of the Request for Reconsideration and a complete copy of all of the audit documentation. The Employer provided the documentation; however, the CO denied the Labor Application citing the Employer did not send its materials back in a timely manner. The Employer then filed a second reconsideration request. In its argument, the Employer claimed it was an administrative error on the part of the Department of Labor, and re-submitted all of its materials including the original filing, audit materials and correspondence with the CO.