H1B Visa Lawyer Blog

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.”