Articles Posted in BALCA Decisions

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 “Personal Finance Advisor.”

After receiving the Employer’s Application, the CO issued an Audit Notification. After receiving the audit response, the CO denied certification citing the fact that the journal the Employer used to advertised the position did not qualify as a professional journal and therefore did not satisfy the regulation. In the request for review, the Employer’s representative argued that the advertisement of the position in The Wall Street Journal did qualify as a professional journal. The case was forwarded to BALCA and the Employer filed a State of Intent to Proceed on June 24, 2010.

PERM regulation 20 C.F.R. § 656.17(e)(1)(B)(4) controls and it provides that if the position being offered requires experience and an advanced degree, a professional journal must be used to advertise the job.

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 “Software Engineer, Applications.”

An Audit Notification was issued by the CO requesting evidence of the Employer’s recruitment efforts. In the response to the audit submitted, the Employer included copies of Form ETA 9089 with original signatures, a statement of business necessity, a copy of the internal Job Posting, and other recruitment documents. The application was denied by the CO on the grounds that the Employer only completed 2 of the required 3 recruitment efforts for professional occupations. A request for review was submitted by the Employer who cited that in the CO’s “Reason for Denial” letter the wrong case number was used. A revised “Reason for Denial” letter was submitted by the CO with the correct case number included and it provided the reason for denial was the fact that the Employer did not submit its recruitment report. In another Request for Review, the Employer argued that the original response to the audit did include the recruitment documentation and recruitment report. The case was then forwarded to BALCA after the CO found the Employer did not overcome the original deficiencies in review of the case.

PERM regulation 20 C.F.R. § 656.17(g) controls and it provides that all employers must prepare a recruitment report, and in the event the CO notifies the employer that its application is to be audited, the employer must submit the report prior to a final determination. This report must also be signed by the employer or the employer’s representative and that individual must be the person who normally interviews or considers, on behalf of the employer, applicants for job opportunities.

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 “Cook.”

On ETA Form 9089 the Employer listed 2 years as the minimum amount of experience required for the position. Certification was denied by the CO on the grounds that the Employer did not select the name of the newspaper for the second advertisement in Section I-11. In a request for review, the Employer argued the omission was inadvertent and the “New York Daily News” should be inserted and included copies of the advertisement. An Audit Notification was then issued by the CO who stated that the minimum requirements set by the Employer exceed the SVP level assigned by O*NET. In order for the Employer to list requirements higher than those set by SVP, he must demonstrate that the additional requirements are essential for the position. The Employer submitted its response to the Audit and explained the business necessity for the additional requirements. The Employer stated that in the past when he had hired individuals with less than two years experience their skills were unsatisfactory and “they lacked knowledge to put together the necessary menus.” However, the CO denied certification due the fact that the Employer did not respond to the Audit before the specified date of 3/31/2008. The Employer wrote back arguing that a response was sent on March 12 and that a Federal Express Receipt show the audit team received it on March 14. Again the CO denied certification going back to the original reason for denial that the Employer exceeded the requirements set by the SVP level and did not adequately prove a business necessity for the additional requirements. In request for review the Employer submitted letters from other restaurant owners who require a minimum of two years experience, pages from the O*NET website and Dictionary of Occupational Titles showing a SVP of 6 for a cook position. The CO found the Employer’s response did not overcome the deficiencies and the documentation the Employer submitted was new evidence. The case was then forwarded to BALCA and a Notice of Docketing was issued.

PERM regulation 20 C.F.R. § 656.17(h)(1) controls and it provides that unless adequately established for business necessity, the job requirements must not exceed those set by the SVP level assigned by O*NET.

The Board of Alien Labor Certification Appeals (BALCA) recently vacated the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Baker.”

Certification was denied by the CO who cited that ETA Form 9089 was incomplete; specifically section F-4 (skill level) and M-3 (preparer’s title) had been left blank. A request for review was issued by the Employer who cited that the fields left blank were too minor to, “consider the form ‘incomplete’ and outright deny [the certification].” The Employer went on to further argue that in the past he had routinely left those same fields blank and certification had never been denied, therefore he should have the chance to correct the form. Included with the request for review, the Employer submitted corrected forms with the previously omitted fields completed. After the case was forwarded to BALCA and a Notice of Docketing was issued, the Employer filed a Statement of Intent to Proceed on April 23, 2010.

PERM regulation 20 C.F.R. § 656.17(a) controls and it provides that an Employer filing for labor certification on behalf of an alien must submit a fully completed ETA Form 9089 (Application for Permanent Employment Certification). Applications that are not complete or that have missing fields will automatically be denied.

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 “Propagation Supervisor.”

An Audit Notification was issued by the CO to the Employer requesting a copy of the job order placed with the State Workforce Agency (SWA) and any other SWA related documents. A response to the audit was submitted by the Employer. Certification was thereafter denied by the CO on the grounds that the audit response material was insufficient to, “demonstrate that a U.S. worker could not be trained to qualify for the position.” The representative of the Employer requested a review of the case and argued that the owner’s illness, substantial growth and other factors prevented the Employer from training U.S. workers. The CO stood by his original decision and denied certification again. The case was then forwarded to BALCA and a Notice of Docketing was issued. In the Employer’s appellate brief, he argued an acceptable amount of evidence was presented to the show inability to train US workers for the position.

PERM regulation 20 C.F.R. § 656.17 (i)(3) controls and it provides, “the employer cannot require domestic worker applicants to posses training and/or expertise beyond what the alien possessed at the time of hire unless the employer can demonstrate it is no longer feasible to train a worker to qualify for the position.”

The Board of Alien Labor Certification Appeals (BALCA) recently vacated the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Animal Trainers.”

The Employer’s Application was denied by the CO who found the company to be illegitimate because the Employer did not have a valid Federal Employer Identification Number (FEIN). The CO did not issue an audit notification. In the Employer’s request for review copies of its business license, FEIN documentation, certificate of liability insurance, and income tax returns were included. In the reconsideration of the decision, the CO stated the Employer did prove sufficient evidence verifying the business license but there was no documentation to support the Employer’s FEIN. The CO also pointed out that no response had been received by the Employer after request had been sent to the Atlanta National Processing Center for proof of the Employer’s FEIN. The case was forwarded to BALCA; however, the Employer did not submit an appellate brief. In the Statement of Position, the CO argued that because the Employer failed to produce any documentation validating its FEIN he was unable to determine whether the company was legitimate and therefore had to deny certification.

PERM regulation 20 C.F.R. § 656.24(g)(2)(i)-(ii) controls and it provides in a request for reconsideration of denial of labor certification an employer may submit documentation requested from the CO or documentation that the Employer did not have the opportunity to present when the application was originally filed.

The Board of Alien Labor Certification Appeals (BALCA) recently vacated the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Programmer Analyst.”

The position advertised listed the minimum level of education required as a bachelor’s degree in computer science, information systems or computer engineering as well as 12 months experience in section H.4 and H.5 of the application. In Section H.8 the Employer also noted that just a bachelor’s with no experience or a foreign education equivalent would be acceptable for the position. Additionally, the Employer listed “system analysis & design, VB, C++, database design & development, MIS, operating systems, etc” in the section for specific skills and other requirements for the position. Certification was denied by the CO on the grounds that the alien only had a bachelor’s degree in information systems, no training or experience was listed to meet the requirements of the Employer. A request for review was submitted by the Employer who cited that a bachelor’s degree with no experience was an acceptable combination of education and experience. The case was then forwarded to BALCA and a Notice of Docketing was issued.

PERM regulation 20 C.F.R. § 656.16(i)(1) controls and it provides that the listed job requirements must match an Employer’s actual minimum job requirements.

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 “Product Manager.”

Certification was denied by the CO who cited the applicant did not meet the position’s education requirements or the minimum experience qualifications. The Employer thereafter requested reconsideration on the grounds that the alien had attended a university for one year and had fourteen and one-half years of experience. The CO noted that with the given information and the employer’s formula, the alien’s education and experience would be equivalent to 17 years. This translates to 12 years of experience required as the equivalent for a Bachelor’s degree plus five years experience. However, according to the Field Memorandum NO. 48-94, Policy Guidance on Labor Certification Issues (FM) a Bachelors’ degree is only equivalent to two years of experience, therefore a Bachelor’s degree plus five years experience is only equivalent to seven years experience. Since the Employer’s requirement of 17 years of experience was not “substantially equivalent” to the primary requirements for the job, the CO denied certification. The case was then forwarded to BALCA and the Employer filed an appellate brief. In the appellate brief, the Employer argued that “17 years of experience” had never been listed on the application for the position of “product manager.” The CO submitted a Statement of Position stating the Employer also submitted the application too many days after the end date of the SWA job order, violating regulation.

PERM regulation 20 C.F.R. § 656.17(i)(1)-(2) controls and it provides that an Employer must represent the actual minimum requirements for the position on an application and an Employer must not hire individuals with less training or experience for a position than set by the requirements.

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 “Software Engineer.”

The Employer was issued an Audit Notification by the CO who requested additional documentation of recruitment as well as its ability to pay foreign workers the wage offered. The evidence requested included state payroll taxes for the last three years, federal income taxes statements for the last three years, list of current employees with their titles, work contracts, etc. The Employer responded to the audit; however the CO denied certification on the grounds that the Employer submitted no documentation to prove the ability to pay the $48, 200 per year offered to the foreign workers. Review was requested by the Employer who argued that because it’s a consulting company the amount of money available depends on the funds generated by clients. Even after the letter of reconsideration, the CO still found that the Employer did not sufficiently prove its ability to pay the wage offered to the foreign worker. The CO cited that the Employer’s 2007 tax return was only $9,855 after operating costs. BALCA issued a Notice of Docketing and the CO’s appellate brief provided evidence to show that the Employer did not “have sufficient funds to pay the wage offered to the Alien.”

PERM regulation 20 C.F.R. § 656.10(c)(3) controls and it provides that one part of the labor certification process is that the Employer must sufficiently prove the ability to pay the salary offered to the alien.

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 “Purchasing Manager.”

On Form ETA 9089 the Employer listed the offered wage and prevailing wage at $67,787.00 per year. An Audit Notification was issued by the CO requesting documentation including a copy of the Notice of Filing (NOF). A copy of the NOF was submitted as the Employer’s response to the Audit, listing the rate of pay as $67,454.00 per year. The application was denied by the CO on the grounds that the NOF listed a lower wage than the prevailing and offered wage. A request for reconsideration was submitted by the Employer arguing that labor certification should not be denied “based solely on the deficiency less than .50% of the prevailing wage.” However, the CO still denied certification after reconsideration and the case was then forwarded to BALCA. In the Employer’s appellate brief, he argued that the amount of $333 difference between the prevailing wage and NOF listed wage should be forgiven, since it equals 99.51% of the prevailing wage.

PERM regulation 20 C.F.R. § 656.17(f)(5) and (7) controls and it provides the Notice of Filing must list a wage equal or exceed the prevailing wage entered by the State Workforce Agency.