H1B Visa Lawyer Blog

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 “R & D Manager/Chemist.”

After receiving and reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. The Employer responded with details of its recruitment efforts as well as summary chart. After reviewing the Audit materials, the CO denied certification of the application. The Employer provided recruitment efforts that did not match the one as listed on the Employer’s ETA Form 9089. In its ETA Form, the Employer indicated it advertised the job opening through its “employee referral program, a job search website and its own website.” In the Audit materials, the Employer failed to provide any documentation of the referral program. It included an advertisement with ecampusrecruiter.com sponsored by the University of Pittsburgh, which was not listed on ETA Form 9089. Since the Employer failed to provide any evidence of the employer referral program, the CO had no choice but to deny certification of the labor application.

The Employer sent a reconsideration request to the CO. The Employer argued that it had made a clerical mistake by listing the referral program on its ETA Form. In its request for reconsideration, it also submitted a corrected ETA Form 9089. The CO re-affirmed its 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 “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 final determination of a Certifying Officer (CO) denying labor certification for the position of “Latin American Refining Prospect Director.”

An Audit Notification was issued by the CO to the Employer requesting them to submit its recruitment documentation. A response to the request was submitted by the Employer. The Employer stated that it conducted three additional steps in its recruitment process, including listing the job opportunity with a private employment firm. In the response, they explained they were unable to find applicants and received zero resumes that met the minimum qualifications for the position. The job requirements were a Master’s Degree in Business Administration or Chemical Engineering and 10 years of experience in the position or a managerial/executive position in the petroleum/refining industry. In its response, the Employer also submitted a copy of the Recruiting Firms’ advertisement. The ad included an extensive job description, educational & experience requirements as well as the location of the job opportunity. However, the advertisement did not mention the company by name.

The CO stood by his original decision citing the Employer failed to provide adequate documentation of its recruitment through the Recruiting Firm. In addition, the recruiting firm failed to identify the name of the Employer in its advertisements. The CO cited 20 C.F.R. & 656.10(c). It provides “the employer to attest that the job opportunity has been and is clearly open to U.S. workers.” In addition, the CO listed 20 C.F.R. & 656.17(f) (1) for the regulatory bases for denial. It “requires that advertisements name the employer.”