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 “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) recently 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.