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 (LC) for three alien workers for the position of “Senior Programmer Analyst.”

The employer filed a LC which was accepted for processing on August 15, 2007. ETA Form 9089 indicated that the job duties consisted of “design, develop, plan, coordinate and implement advance software module components in complex computing environment. For specific skills, the employer required: C++, ASP, COM/DCOM, Scripting, Win NT/2000/98, UNIX, Oracle and VB. Thereafter, the CO issued an Audit Notification letter requesting evidence of recruitment and other required documentation. The Employer responded by submitting copies of its newspaper advertisements, as well as the other required documentation. Thereafter the CO denied certification for several reasons: (1) the Notice of Filing did not contain the location of the job opportunity; and (2) the Employer did not provide adequate documentation of the mandatory print advertisements as requested. Specifically, the tear sheets submitted were not legible. The Employer responded by requesting reconsideration and submitted enlarged, legible copies of its newspaper advertisements. The CO issued a letter of reconsideration indicating that denial was proper because the advertisements contained additional job requirements not listed on the ETA Form 9089. Specifically, the newspaper advertisements stated that travel was required for the position.

PERM Regulation 20 C.F.R. § 656.17(f)(7) controls and it provides:

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Property Real Estate and Community Association Manager.”

The employer filed a LC which was accepted for processing on December 8, 2008. On September 30, 2009, the CO denied the application because the Employer indicated on Form ETA 9089 that it placed its second advertisement on Craigslist, which the CO indicated was not a newspaper or a professional journal. The Employer thereafter requested reconsideration and in its request argued that it was denied due process because it had not been provided adequate notice of the regulatory violation.

PERM Regulation 20 C.F.R. § 656.17(e) controls and it requires that an employer attest to having conducted recruitment prior to filing an application for permanent employment certification. The regulation goes on to provide that applicants involving both professional and non-professional occupations normally require the sponsoring employer to attest to having placed two print advertisements on two different Sundays in a newspaper of general circulation in the area of intended employment. In lieu of one of the Sunday newspaper advertisements, a sponsoring employer is allowed to place an advertisement in a professional journal. In the instant case, the Employer did not attempt to argue that Craigslist was a professional journal, but relied on the argument that it was denied due process because the CO raised an issue for the first time in its final decision, as the Employer based its reasoning on a series of pre-PERM BALCA decisions. Under the pre-PERM regulations, a CO would first issue a “Notice of Findings” (NOF) providing notice to an employer of any deficiencies upon which the CO proposed to deny certification. However, the PERM regulations eliminated the NOF/Rebuttal procedure. The Board found that the CO’s denial of the application without prior notice of the grounds for denial did not violate the PERM regulations.