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 “Computer Systems Analyst.”
The CO denied the application stating that the journal used to advertise the position was not a recognized journal on websites and does not qualify as a professional journal. The Employer accordingly made a request for review of the denial stating that it fulfilled its obligation to advertise as indicated in the regulations and that the magazine, Computer, is a recognized professional journal. In its request for review the Employer included six pages of information from the IEEE website, which states that “for more than 40 years, developers, researchers, and managers have relied upon Computer for timely, peer-reviewed information about research, trends, best practices, and changes in the profession.” The CO forwarded the case directly to BALCA as a request for reconsideration was not made by the Employer.
PERM regulations 20 C.F.R. § 656.17(e)(1)(i)(B) and 656.17(e)(2)(ii) control and provide: sponsoring employers are normally required to attest to having placed two print advertisements on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the worker likely to apply for the job opportunity. However, an exception under 20 CFR § 656.17(e)(1)(B)(4) provides that if the job requires experience and an advanced degree and a professional journal would normally be used to advertise the job opportunity, the employer may substitute one of the Sunday advertisements for an ad in the professional journal most likely to bring responses from able, willing, qualified and available U.S. workers.
In the instant case, because the Employer did not initially make a request for reconsideration from the CO, BALCA was limited by 20 CFR § 656.27(c) and had to analyze the record based only on the evidence upon which the CO’s denial was made. Therefore, the six page document provided by the Employer could not be reviewed by BALCA. The Board was forced to affirm the denial even though they believed that the CO was arguably incorrect in his determination that Computer magazine was not a qualifying professional journal.
Accordingly, the Board affirmed the decision of the CO in denying labor certification.