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 “Senior Software Engineer.”

The CO denied the labor certification stating the alternative requirements for the position were different (not substantially equivalent) from the primary job requirements on the ETA Form 9089. The Employer mentions as an alternative requirement for this position – 12 years of related experience as being equivalent to possessing a Bachelor’s degree. On the Form, the Employer lists the “primary requirements of a Bachelor’s degree in Engineering, Electronic Engineering, or a closely related field, and 60 months of experience” in the job offered. The CO cited a violation of PERM Regulation 20 C.F.R. § 656.17(h)(4)(i).

The Employer requested reconsideration of the denial stating it only listed one education and experience requirement; therefore, it did not accept an alternative combination of education & experience. They argued that their recognition of 12 years of experience as the equivalent of a bachelor’s degree is a widely used standard in the IT industry and amongst U.S. educational institutions.

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 “Business Development Manager-IV.”

After receiving and reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit. He directed the Employer to present copies of its recruitment records. The Employer responded with its New Jersey State Workforce Agency (SWA) Job order that was administered through America’s Job Exchange (AJE).

Once the CO received the audit materials, he denied certification of the application. The CO cited the position communicated in its recruitment advertising did not match the one listed on the Employer’s ETA Form 9089 in violation of PERM Regulations 656.17 (f)(6). In its Labor Application, the Employer stated the position required “a Master’s Degree and 12 months of experience in the job offered.” In its SWA job order, the experience requirement listed “Mid-Career (2-15 years).”