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 “Tile Setter.”

After obtaining & examining an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification ordering the Employer to submit copies of its State Workforce Agency (SWA) job order. This included a copy of the job order placed with the SWA serving the area of intended employment downloaded from the SWA Internet job listing site, a copy of the job order provided by the SWA, or other proof of publication from the SWA containing the content of the job order. The Employer replied to the Audit by providing a photocopy of a completed “Employer Job Order Information Sheet” from VaEmploy.Com.

The CO denied the labor certification citing the Employer’s failure to provide proof of publication of the job order from the SWA containing the content of the job order. He believed the copy of the VaEmploy.Com sheet did not indicate the ultimate content of the SWA job order. In addition, the CO thought the “Order Information” sheet did not prove the SWA published the job order. He cited PERM regulation 20CFR 656.20(b) as the governing source of his denial. PERM regulations require “an employer filing for permanent labor certification to place a job order with the State Workforce Agency (SWA) serving the area of intended employment” for a period of 30 days.

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 “Accountants and Auditors.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. Once the Employer responded, the CO denied certification of the application for multiple reasons. First and foremost, the job description listed in its recruitment advertising 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 also cited the employer’s website advertising neglected to mention travel requirements that were listed on its ETA Form 9089. On the Employer’s ETA Form, it specified, “various unanticipated Deloitte locations and client sites nationally.”

The Employer sent a reconsideration request to the CO. In its argument, the Employer stated the U.S. Department of Labor (DOL) made a mistake in its ruling. The CO delivered a second denial and forwarded the case to the 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 “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.”