Articles Posted in BALCA Decisions

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

In Section M-1 of Form 9089 where the employer is suppose to check whether they completed the application, the Employer failed to check either “yes” or “no”. The CO denied certification of the application on March 23, 2010 citing the fact that Section M-1 was not completed. The case was forwarded to BALCA after the Employer submitted a corrected copy of Form 9089, with Section M-1 complete. The Employer stated he was only seeking reconsideration of the case instead of a formal appeal in a letter to BALCA on August 2, 2010.

PERM regulation 20 C.F.R. § 656.11(b) controls and it provides that after July 16, 2007 no request for modifications to an application will be accepted.

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 “Maintenance and Repair Workers, General.”

The Employer’s Application for Permanent Employment Certification was denied on August 28, 2007 by the CO who cited that in section H of Form ETA 9089, the job opportunity listed was not offered to the alien in section J of Form ETA 9089. In the Employer’s request for review, he stated it was a careless mistake to check the “no” box in Section H16 instead of the yes “box”, referencing the view of Matter of Health America. An additional request was submitted by the Employer on September 11, 2008. An audit was then issued and the Employer was requested to provide documentation of the job order placed with the State Workforce Agency (SWA), a copy of the job order issued by the SWA or other evidence to prove publication by the SWA. The documentation submitted by the Employer was found unsatisfactory to the CO in proving the SWA ran the job order and certification was denied on August 26, 2009. After the case was forwarded to BALCA, the Employer filed a Statement of Intent to Proceed on January 12, 2010.

PERM regulation 20 C.F.R. § 656.17(e)(1)(i)(A) controls and it provides that one of the ways an Employer must inform US workers about a job opportunity is by placing a job order with the SWA in the area of intended employment for 30 days.

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 “Senior SAP Basis Technology Analyst.”

In the Employer’s Application for Permanent Employment Certification, three additional recruitment steps were listed because the job advertised was a professional position. The Employer’s ETA Form 9089 was audited on November 15, 2007. The CO requested recruitment documentation in the Audit Notification and the Employer responded to the audit with a screenshot of its internal job posting website. This screenshot included the dates on which the posting began and ended. Certification was denied by the CO on the grounds that documentation of the additional recruitment steps was insufficient as well as no employer notices or memorandum that specifically indentified incentives offered were submitted. A request for reconsideration was submitted by the Employer on June 18, 2009 who argued the screenshot qualified as sufficient evidence under the regulation. The Employer also sent information detailing the talent referral program in the request for reconsideration. The CO upheld his previous decision in denying certification even after the employer’s request for reconsideration and forwarded the case to BALCA on February 12, 2010. The CO filed his Statement of Position stating the Employer’s inability to submit documentation on time was a just cause for denial.

PERM regulation 20 C.F.R. § 656.24(g)(2)(i) ,(ii) controls and it provides that an Employer’s request for reconsideration may only include documentation that Employer originally did not have to opportunity to present or documentation the CO specifically requested.

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 “Practical Nurse.”

After accepting the Employer’s Application for Permanent Certification on October 26, 2007, the CO issued an Audit Notification which requested documentation of the Notice of Filing. The Employer responded to the Audit and submitted three pieces of evidence, but an actual copy of the Notice of Filing was not included. A status update of the case was requested by the Employer on June 9, 2008 since no reply had been given since the submission of the audit response. A second request for a status update was sent on November 25, 2008. The denial of the case was issued on December 9, 2008 by the CO who cited failure to produce a copy of the Notice of Filing as well as a difference in the wages listed on the Prevailing Wage Determination (PWD) and ETA Form 9089. The Employer submitted a request for review that included copies of the Notice of Filing and PWD. The Employer also stated in his request for review that the two documents were previously submitted in the audit response. Additionally, the Employer clarified a second PWD was acquired when it was realized the state department of labor had left the prevailing wage blank. However, the CO concluded the denial was valid on November 17, 2009. The CO argued that the Employer did not originally submit the Notice of Filing following the Audit Notification and the copy included in the request for review could not be considered as it was new evidence; however, the CO did accept the Employer’s explanation as to why the wage on the PWD and Form 9089 did not match. The case was then forwarded to BALCA and a Notice of Docketing was issued on December 7, 2009. In the appellate brief, the Employer argued that the Notice of Filing was included in the Audit response, suggesting it may have been lost. The Employer’s attorney also contested there was a copy of the Notice of Filing in her copy of the audit response.

PERM regulation 20 C.F.R. § 656.20(b) controls and it provides that an application can be denied by the CO if the Employer fails to provide the requested documentation following an Audit Notification.

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 “Dentist.”

The CO issued an Audit Notification on October 2, 2007 requesting additional documentation in regards to the Employer’s recruitment efforts. The Employer responded to the audit by producing copies of its recruitment report and an ad listed on a job search website. Certification was denied by the CO because the recruitment done through the web site neglected to list the employer’s name, marking it as “confidential”. In a request for review, the Employer argued that the Employer’s full name and address were in fact listed on the ad at the following website http://hotjobs.yahoo.com. Though the Employer tried to prove the “advertisement could clearly be matched to the sponsored job opportunity,” the CO found the Employer did not overcome the original deficiencies of the application’s denial. The case was then forwarded to BALCA on November 19, 2009 and the Employer filed a Statement of Intent to Proceed. In the Statement of Position filed on January 22, 2010, the CO restated the reason for denial as the Employer’s identification as “confidential” on the website advertisement.

PERM regulation 20 C.F.R. § 656.17(f)(1) controls and it provides if an employer places an advertisement on a job search web site other than the employer’s, there are certain requirements such as including the “name of the employer.”

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 “High School Science Teacher.”

After the Employer neglected to respond to an Audit Notification, the CO denied certification on February 27, 2007. The Employer then proceeded to argue that they had never received the Audit Notification and requested a review of the case. Once the CO re-issued the Audit Notification on May 27, 2008 the Employer did respond. Following a review of the Employer’s response, the CO denied certification on the grounds that the requirements for the job didn’t match on ETA Form 9089 and the order placed with the State Workforce Agency (SWA). The ETA Form 9089 listed a wage lower than that on the job order as well as the fact that the Employer did not submit two recent letters of recommendation to fulfill the requirement of the ad placed on Edjoin.com. In a request for review, the Employer argued the requirement difference on the forms occurred as a result of SWA’s mistake and the Edjoin.com ad shouldn’t have asked for two letters of recommendation. The case was then forwarded to BALCA on November 18, 2009 and a Notice of Docketing was issued. In a Statement of Position, the CO explained the case was denied because the SWA requirements are greater than those listed on ETA Form 9089 and the requirements on the website ad exceed those listed on the application as well.

PERM regulation 20 C.F.R. § 656.17(f)(6) controls and it provides: “advertisements must not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089.”

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 “Senior Software Engineer.”

On the Employer’s Application for Permanent Employment Certification, three additional types of recruitment were listed because the job advertised was a professional position. An Audit Notification was issued by the CO on October 5, 2007 requesting documentation on the Employer’s additional recruitment steps which included: listing the job on a job search website, using the employee referral program and listing the job with a private employment firm. The Employer responded to the Audit Notification on October 19, 2007 and submitted documentation which included: a copy of ETA Form 9098, a letter from HR stating the need for the job’s requirements, the posting of the available notice for the job (dated May 21, 2007 to June 1, 2007), the recruitment report, prevailing wage determination, copies of additional postings, list of recruitment agencies used, and a copy of the employee referral program. Certification was denied on February 11, 2008 by the CO who cited failure to provide, “adequate documentation of additional recruitment steps for professional occupations” as the reason for denial. The CO went on to say the Employer lacked evidence to support the company listing minimum requirements for the job that exceeded the SVP level as well as failed to demonstrate the recruitment efforts by the private employment firms. The Employer submitted a request for review on February 29, 2008 arguing the previous evidence submitted was adequate. Following the Employer’s request for review, the CO still denied certification. The CO accepted the Employer’s argument and additional documentation concerning the business necessity but did not accept the evidence to support the recruitment efforts by private employment firms. The case was then forwarded to BALCA and a Notice of Docketing was issued on October 8, 2009. In a Statement of Position, the CO defended the denial of certification, arguing sufficient documentation was not provided by the Employer to show individuals were given the opportunity to apply for the position or, “that any recruitment was done in a timely manner.”

PERM regulation 20 C.F.R. § 656.17(e)(1)(ii)(F) controls and it provides that an employer may consult private employment firms as one of their additional recruitment steps for a professional position. The regulation also stipulates documentation must be provided that is “sufficient to demonstrate that recruitment has been conducted by a private firm for the occupation for which certification is sought.”

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.”

After accepting an application for Permanent Employment Certification on August 28, 2007, the CO issued a denial of the application citing nine different reasons. The Employer requested review of the case on September 14, 2007 and argued that although portions of the application had been “mistakenly overlooked,” he had complied with all the regulations. The letter of request for review from the Employer did not satisfy the CO and the case was forwarded to BALCA on January 6, 2010. The official denial from the CO stated the application was denied on the grounds that the alien did not sign Section L-2 of ETA Form 9098 and the offered wage was lower than the prevailing wage noted on ETA Form 9098. Following a Notice of Docketing issued by BALCA, the Employer filed an appellate brief arguing that they were unable to submit ETA 9098 with the alien’s signature because the alien lives in a remote area of Kosovo with limited mail service. Additionally, the Employer noted in the brief that the higher end of the salary range offered does coincide with the prevailing wage determination listed on ETA Form 9098.

PERM regulation 20 C.F.R. § 656.17(a) controls and it provides that it is the Employer’s responsibility when applying for labor certification on behalf of an alien to submit a fully completed ETA Form 9098 which includes signatures from the employer, alien, and attorney/agent.