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 “Software Quality Engineer.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. After the Employer responded, the CO denied certification of the application for violating PERM Regulation 20 CFR 656.17 (f)(4) among other grounds. PERM regulation 656.17 (f)(4) requires that newspaper ads “must indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.” The Employer’s Notice of Filing and recruitment efforts listed Santa Clara, California ONLY; however, the ETA Form 9089 mentioned Santa Clara, California, and “various unanticipated locations throughout the U.S.”

Even though the Employer sent a reconsideration request to the CO, he delivered a second denial and forwarded the case to BALCA for review. The Employer argued that the position did not necessitate travel and only listed it on the ETA Form to “allow for participation in events outside of the employer’s offices.” They insisted that the travel requirement was optional.

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 “Accountants and Auditors.”

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 for multiple reasons. First and foremost, the job description listed in its recruitment advertising did not match the one listed on the Employer’s ETA Form 9089 in violation of PERM Regulations 20 C.F.R. § 656.10 and 656.17 (f)(3). These regulations require that an advertisement “provide a description of the vacancy specific enough to apprise a US worker of the job opportunity for which certification is sought.” The CO also cited the employer’s website advertising neglected to mention travel requirements that were listed on its ETA Form 9089. On the Employer’s ETA Form, it specified, “various unanticipated Deloitte locations and client sites nationally.”

The Employer sent a reconsideration request to the CO. In its argument, the Employer stated the U.S. Department of Labor (DOL) made a mistake in its ruling. The CO delivered a second denial and forwarded the case to the 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 “Marketing Manager.”

Upon evaluating an Employer’s Application for Permanent Labor Certification, the CO ordered the Employer to present copies of its recruitment efforts. The Employer provided a copy of its notice of filing, job order with the Washington State Workforce Agency (SWA), as well as newspaper ads placed in the Seattle Times. In addition, they submitted a copy of the company’s recruitment report.

After reviewing the recruitment data, the CO denied Certification because he believed it violated PERM regulation 20 CFR 656.17(f)(6), which provides that additional language not found on the ETA Form 9089 exceeds the job requirements for the position. The CO stated the Employer’s Notice of Filing (NOF), SWA job order, newspaper advertisements and web advertisements all listed “may require employer-reimbursed travel.” The phrase was not listed on the Employer’s 9089 form.

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 “Tile Setter.”

After obtaining & examining an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification ordering the Employer to submit copies of its State Workforce Agency (SWA) job order. This included a copy of the job order placed with the SWA serving the area of intended employment downloaded from the SWA Internet job listing site, a copy of the job order provided by the SWA, or other proof of publication from the SWA containing the content of the job order. The Employer replied to the Audit by providing a photocopy of a completed “Employer Job Order Information Sheet” from VaEmploy.Com.

The CO denied the labor certification citing the Employer’s failure to provide proof of publication of the job order from the SWA containing the content of the job order. He believed the copy of the VaEmploy.Com sheet did not indicate the ultimate content of the SWA job order. In addition, the CO thought the “Order Information” sheet did not prove the SWA published the job order. He cited PERM regulation 20CFR 656.20(b) as the governing source of his denial. PERM regulations require “an employer filing for permanent labor certification to place a job order with the State Workforce Agency (SWA) serving the area of intended employment” for a period of 30 days.

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 “Instructional Coordinator.”

After reviewing an Employer’s Application for Permanent Labor Certification, the CO denied the application, without audit or a request for additional information, stating that the position did not qualify as a college or university teacher. The CO considered the Instructional Coordinator position as a professional occupation for which the Employer was required to conduct additional mandatory recruitment efforts.

The Employer sent a reconsideration request to the CO. In its argument, the Employer reaffirmed that the position was a university instructor. They submitted additional documentation to support their claim. They provided a detailed description of the position covering the job duties and experience qualifications. This description mentioned “effective teaching in the library instruction program.” The second piece of evidence included a memorandum from the Dean of the University Libraries. In his memorandum, the Dean summarized the Applicant’s position as a Faculty Member in the Division of Library Services, discussed the Applicant’s responsibilities as an Assistant Professor and referred to the Applicant as “an excellent classroom teacher providing effective, creative and critical learning experiences for our students.”

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 “Medical & Clinical Laboratory Technologist”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification demanding the employee’s work credentials. The Employer sent the worker’s qualifications including prior work experience from his former employer to the CO for review.

Upon review of the Audit response, the CO denied the Labor Certification Application. The CO believed the credentials recorded on the application did not match the position’s minimum job requirements. The Employer sent a reconsideration request to the CO. In the argument, the Employer stated that the employee had the required two years of previous work experience, and included again for the record, documentation of the beneficiary’s previous work experience. Additionally, since the company opened in 1998, they had not hired anyone with less than two years’ experience for this position.

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 “Home Health Care Aide”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. He asked the employer to provide more information about their print advertising for the job.

The CO denied the application declaring that the Employer failed to deliver sufficient documentation for the mandatory print advertisements. The Employer did not provide copies of the advertisement that contained both the name of the newspaper as well as the date of publication, He cited the Employer was in violation of PERM regulation 20 C.F.R. 656.17(e)(1)(i)(B)(3) and 656.17(e)(2)(ii)(C).

The Board of Alien Labor Certification Appeals (BALCA) recently reversed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Business Development Specialist.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied certification because the job title recorded in the two newspaper advertisements communicated the job title as “Business Development VP” as an alternative to “Business Development Specialist.” The CO thought this inconsistency was an infringement of PERM regulations 20 C.F.R. § 656.10 and 20 C.F.R. § 656.17(f)(3).

PERM regulation 20 C.F.R. § 656.10(c) (8) requires the petitioning employer to demonstrate that the job has been visibly accessible to any U.S. worker. The PERM regulation § 656.17(f)(3) requires any print advertisement to specifically detail the job requirements in order to give US workers the chance to apply for the position.

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 “Producer.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. It required the Employer to show proof of the State Workforce Agency’s (SWA) job order as well as all resumes received in connection with the position. The Employer responded and the CO continued to review the application.

The CO denied the application based on two different PERM regulations. PERM regulation 20 C.F.R. 656.17 (e)(1)(i) requires that “two print advertisements are mandatory for all applications involving professional occupations.” These advertisements must run on two different Sundays in the area of intended employment. The Employer placed the ad for the Producer position in the Wall Street Journal (WSJ), which does not qualify as a professional journal, and could not be used in lieu of the mandatory Sunday advertisements as required by the PERM regulations, because the ad was not run on a Sunday. Furthermore, the CO indicated in his denial that the employee did not meet the minimum requirements of the position. He cited PERM regulation 20 C.F.R. 656.17(i)(1).

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 “Literary & Media Specialist”.

The CO denied the application stating that the Employer failed to provide sufficient documentation of a radio advertisement. He cited it was in violation of PERM regulation 20 C.F.R. 656.17(e)(1)(ii)(J).

PERM regulation 20 C.F.R. 656.17(e)(1)(ii)(J) expects employers to provide a copy of an advertisement as well as a written confirmation from the radio or television station stating when the ad was aired.