Articles Posted in BALCA Decisions

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Senior Managing Consultant.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. He instructed the Employer to submit its recruitment documents. Once the Employer responded, the CO denied certification of the application for multiple reasons. First and foremost, the position communicated in its State Workforce Agency job order did not match the one listed on the Employer’s ETA Form 9089 in violation of PERM Regulation 656.17 (f)(4) – the CO initially denied the application citing under 656.17(f)(6), which was incorrect. The CO cited the employer’s SWA job order neglected to mention travel requirements that were listed on its Form 9089. On the Employer’s form, it specified, “the work will be performed at various client sites throughout the US.” The CO stated a second reason for denial, as he believed the Employer did not “provide adequate documentation to show that it advertised the job opportunity on its website.”

The Employer sent a reconsideration request to the CO. In its argument, the Employer stated the ETA form did contain material that surpasses the job conditions on the SWA job order rather than the other way around. The CO delivered a second denial stating that the SWA job order did not list “the work will be performed at various client sites throughout the US,” yet this statement was written on Form ETA 9089. He forwarded the case to the BALCA.

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Travel Agent.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. It required the Employer to present the notice of filing documentation. The Employer sent back a copy of the Notice of Filing (NOF).

The CO denied the application for multiple reasons. He stated that the employer did not name the location of where the NOF was posted, as a result, they violated PERM regulation 20 C.F.R. 656.10 (d) (1) (ii). This regulation requires that “the NOF must be posted at employer’s facility or location in two conspicuous places where the employer’s US workers can readily read the posted notice on their way to or from their place of employment.” The regulations also provide that “the documentation requirement may be satisfied by providing a copy of the posted notice and stating where it was posted.”

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 “Translator.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied certification. The CO cited the Employer’s ETA Form 9089 indicated the job as non-professional; however, the Standard Occupational Classification (SOC) for the occupation listed is found on the list of Professional occupations from Appendix A of the Preamble to 20 CFR 656. The CO stated the Employer did not oversee the appropriate recruitment process.

The Employer sent a reconsideration request to the CO arguing that the position of “Translator” is not located on the Professional Occupations list. They argued their Labor application was correct and their recruitment was suitable for the non-professional position. In response, the CO sent the Employer a “Request for Information.” The Employer offered the requested information. Upon review of this information, the CO sent an Audit notification. The Employer presented the State Workforce Agency (SWA) job order and other documentation as requested.

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 “Landscape Tech.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification requesting the Employer to present documentation of its Notice of Filing (NOF). Once the CO received the Audit materials, he denied the Labor Application on the ground that the Employer failed to confirm that the NOF was posted for ten (10) consecutive business days between 30 and 180 days before filing its ETA Form 9089, in violation of PERM regulation 20 CFR 656.10(d).

The Employer sent a reconsideration request to the CO. In his response to the reconsideration request, the CO requested the Employer, in 30 days, present a complete copy of their ETA Form 9089, a complete copy of the Request for Reconsideration and a complete copy of all of the audit documentation. The Employer provided the documentation; however, the CO denied the Labor Application citing the Employer did not send its materials back in a timely manner. The Employer then filed a second reconsideration request. In its argument, the Employer claimed it was an administrative error on the part of the Department of Labor, and re-submitted all of its materials including the original filing, audit materials and correspondence with the CO.

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Field Service Engineer.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. One of the issues present was the fact that the main worksite address on the ETA Form 9089 was the same as the alien’s address. In its Audit response, the Employer provided its recruitment documentation and explained that the position allows its “Field Service Engineer to work from home and to travel to client sites as needed.”

Once the Employer responded, the CO denied certification. The CO indicated the position communicated in its recruitment efforts did not offer the condition to work from home to US workers. This was a violation of PERM Regulation 20 CFR 656.17(f)(7). This regulation requires that an advertisement “must not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.”

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Instructional Coordinator: Computer Cluster.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. Once the Employer responded, the CO denied certification of the application. He stated the position communicated in its recruitment efforts did not match the one listed on the Employer’s ETA Form 9089 in violation of PERM Regulation 20 CFR 656.17(f)(7). This regulation requires that an advertisement “must not contain wages or terms and conditions of employment which are less favorable than those offered to the alien.”

The employer’s ETA form 9089 contained the following language, not listed in any of its recruitment efforts – “occasional day travel within San Antonio Metropolitan area and/or to Corpus Christi, Texas. No Overnights.” The Employer sent a reconsideration request to the CO. In its argument, the Employer argued that it did not violate 656.17(f)(7) because it did not mention any travel in its recruitment advertising. They also stated by “not listing a travel requirement it makes the terms and conditions of employment offered to US workers more favorable.” The CO affirmed its initial denial and forwarded the case to BALCA for review.

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 “Maid.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied certification. He cited the Employer’s failure to “make a selection for Section H-1” of the 9089 form as grounds for the denial. The Employer submitted a reconsideration request stating that they had completed Section H-1.

The CO issued “a request for information about the bona fides of the Employer’s business.” In addition, he sent an Audit notification to the company’s attorney. After the deadline had passed to receive the Audit response, the CO affirmed its initial denial of labor certification. The Employer sent a reconsideration request to the CO arguing that it never received the Audit notification or the request for information. In its argument, the Employer sent a letter from their General Manager that stated he had never received a letter. They also provided email documentation from the Atlanta Processing Center which cited the Employer’s attorney’s response to the request for information from a request initially made in 2008. The CO denied reconsideration stating the Audit notification was mailed to the address on record, no change of address was recorded within the file, and the other letters were delivered and responded to with no problem.

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 “Production Supervisor.”

Upon evaluating the Employer’s Application for Permanent Labor Certification, the CO denied the Labor Application because he believed it violated PERM regulation 20 C.F.R. 656.17(f)(3), as made applicable by regulation 20 CFR 656.10(d)(4). The CO stated the Employer’s Notice of Filing (NOF) did not include the requirement of having the “ability to speak Spanish” that was listed on the Employer’s 9089 form. The regulations require that an advertisement “provide a description of the vacancy specific enough to apprise the US workers of the job opportunity for which certification is sought.”

The Employer sent a reconsideration request to the CO. In the argument, the Employer stated their NOF met the criteria, as it provided enough information for job applicants and by omitting the Spanish requirement, it would have allowed more candidates to apply.

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Cook Assistant, Japanese Cuisine.”

After audit, the CO denied the labor certification stating the prevailing wage on the ETA form 9089 did not match the one listed on the prevailing wage determination (PWD). The Labor application listed “$10.04” per hour and the prevailing wage determination listed “$10.14” per hour. The Employer requested reconsideration of the denial stating the prevailing wage discrepancy was “a minor typographical error”, “a clerical mistake of minor importance,” and that “no potential applicant was exposed to the clerical error.” They cited its Notice of Filing included the accurate wage. The Employer also argued in order to correct and re-file the labor application they would have to re-start the time-consuming recruitment process all over again.

After reviewing the reconsideration, the CO affirmed its denial of certification. He believed that under the PERM regulations, “employers must present an application that is complete and accurate to ensure the integrity of the PERM process.” The CO also pointed out that “$10.04” was typed twice on the application. The CO based his decision on the 20 C.F.R. 656.10(c)(1), which requires employers to certify in applications for permanent employment certification that the “offered wage equals or exceeds the prevailing wage.” The CO forwarded the case to BALCA for review.

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Computer & Information Systems Manager.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. Once the Employer responded to the Audit, the CO denied certification of the application for failing “to respond to the audit notification within the required time.”

The Employer sent a reconsideration request to the CO. In its argument, the Employer submitted its audit response documentation that included a copy of its job posting from its website with an unreadable handwritten note displaying the dates of posting. In addition, the recruitment report signed by the Company’s President was submitted. In the report, the time frame for the job posting on the employer’s website was listed as November 30 to December 30, 2008.