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 an alien worker for the position of “Propagation Supervisor.”
An Audit Notification was issued by the CO to the Employer requesting a copy of the job order placed with the State Workforce Agency (SWA) and any other SWA related documents. A response to the audit was submitted by the Employer. Certification was thereafter denied by the CO on the grounds that the audit response material was insufficient to, “demonstrate that a U.S. worker could not be trained to qualify for the position.” The representative of the Employer requested a review of the case and argued that the owner’s illness, substantial growth and other factors prevented the Employer from training U.S. workers. The CO stood by his original decision and denied certification again. The case was then forwarded to BALCA and a Notice of Docketing was issued. In the Employer’s appellate brief, he argued an acceptable amount of evidence was presented to the show inability to train US workers for the position.
PERM regulation 20 C.F.R. § 656.17 (i)(3) controls and it provides, “the employer cannot require domestic worker applicants to posses training and/or expertise beyond what the alien possessed at the time of hire unless the employer can demonstrate it is no longer feasible to train a worker to qualify for the position.”
In the instant case, the Employer argued a “change in business conditions” was the prohibiting factor in training U.S. workers. In reviewing the case, BALCA did not agree with the Employer’s defense that it was impossible to train U.S. workers. Additionally, BALCA did not find that the Employer’s extenuating circumstances should have prevented the training of U.S. workers.
Accordingly, the Board affirmed the decision of the CO in denying labor certification.