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 “Industrial/Organizational Psychologist.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. The Employer presented its response and the CO issued a Notification of Supervised Recruitment. A few weeks later, the Employer sent a copy of the proposed job advertisement as well as a copy of the foreign worker’s Master’s degree and school transcripts. In response, the CO requested a signed sworn statement and documentation that explains why training is not realistic to meet the requirements for the particular position. The Employer responded with the required documents. The CO sent the Employer the resumes it had received from advertising. Two months later, the Employer submitted its recruitment report and accompanying records.

Upon review of the recruitment report, the CO denied certification of the labor application. He stated the Employer turned down qualified U.S. job applicants for “non-lawful job-related reasons.” The CO believed there were at least three fitting candidates for the job opening that were refused because the Employer believed they did not meet the minimum requirements. In his denial, the CO cited the Employer’s statement on the ETA Form 9089, “will accept any suitable combination of education, training and experience.”

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 “Bilingual Programmer.”

After obtaining & examining an Employer’s application for Permanent Labor Certification, the CO issued an Audit notification ordering the Employer to submit a copy of the State Workforce Agency’s (SWA) job order. The Employer replied to the Audit within 30 days.

The CO denied labor certification stating “the SWA offered employment terms and conditions of employment that were less favorable than those offered to the alien.” On the SWA job order, the position “required drug testing/screening and background checks.” These requirements were not listed on the Employer’s ETA Form 9089. The Employer requested reconsideration and attached an amended copy of the ETA Form 9089 that listed the required drug testing/screening and background checks.

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 Food Technologist.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied the application. He believed that the Washington Examiner, where the employer placed its Sunday job postings, did not classify as a newspaper of general circulation in the area of intended employment. The CO was certain most job seekers would choose a paper with a larger classified section and job advertisements. He based his denial on PERM regulation 20 C.F.R. 656.17 (e)(1)(i)(B)(1). This regulation mandates newspaper advertisements for recruitment must be placed “in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity; and most likely to bring responses from able, willing, qualified and available U.S. workers.”

After the denial, the Employer requested reconsideration of the case. The Employer argued the Washington Examiner did have a substantial classified section. They stated the newspaper “has a classified section with advertisements for a large number of job opportunities that included both professional & non-professional positions.” In its reconsideration request, the Employer included a “Wikipedia” article about the Washington Examiner. The Employer argued that because of the size of the circulation of the Examiner as reported on the Wikipedia page, it was in fact the newspaper most appropriate to the occupation and workers.