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 “Financial Analyst-Senior”
After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. Specifically, he requested information on US Workers that had been recently laid off. The Employer presented its response in a timely manner. Upon review of the information, the CO denied certification. He stated the Employer turned down a qualified U.S. worker. The CO believed there was at least one fitting candidate for the job opening. One of the laid off workers had been a Financial Analyst Senior and possessed a Bachelor’s Degree in Economics with experience in business applications.
The Employer requested reconsideration of the denial, the CO denied reconsideration of the case and the case was forwarded to BALCA. The CO noted that the Employer wrote in the Request for Reconsideration that “the most critical skill for the position is advanced programming skills.” Yet, that qualification was not listed on ETA Form 9089.
After BALCA’s examination of the case, they reversed the CO’s decision. Form 9089 requested specific experience using SQL, Online Analytical Processing, MS Query and Excel, SAS on Unix, SAS on Windows and SAS/Graph, and use of an HTML interface, etc. The laid off worker did not have experience with any of the programs listed on the ETA Form except for Microsoft Excel. The Employer did evaluate the laid off US workers education and experience against the position’s minimum qualifications. The Board found the applicant lacked the computer experience and skills required for the position. The Employer rejected the US worker for lawful job related reasons. The case was sent back to the CO to grant labor certification.