H1B Visa Lawyer Blog
The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Senior Systems Analyst.”
Upon evaluating an Employer’s Application for Permanent Labor Certification, the CO denied the Labor Application because he believed it violated PERM regulation 20 CFR 656.17(f)(4). The CO denied certification because “the newspaper advertisement failed to list the correct geographical area of employment with enough specificity to apprise applicants of any travel requirements.” He pointed out the physical area of employment contained in the employer’s job ad in the San Francisco Chronicle as well as hotjobs.yahoo.com does not match the one listed on the ETA Form. The ad lists San Francisco, while Fremont is recorded on the ETA Form. The CO stated these two cities are located in different “Metropolitan Statistical Areas” (MSA).
The Employer filed an appeal to BALCA. They declared that the CO made an error in thinking Fremont and San Francisco were in different MSA’s. The Employer argued that the “advertisements complied with PERM requirements and DOL guidelines for roaming positions.” As evidence, the Employer requested BALCA to take administrative notice of a printout from the Census Bureau’s website which lists the MSA’s, among other evidence. In addition, they wanted the Board to review a “County to County” commuting chart from the San Francisco Bay area. The Employer explained that Fremont is the company’s headquarters but the locations of the job are yet unknown.
After BALCA’s examination of the case, they reversed the CO’s decision. BALCA believed that the advertisement on hotjobs.yahoo.com did not misinform any US workers of the job site. Furthermore, job applicants would understand the job duties could take place anywhere within the San Francisco area. Since the ad mentioned the position may entail long-term assignments within the area, it complied with PERM regulation 656.17 (f)(4). BALCA sent the case back to the CO for certification.