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 “Computer Software Engineer.”

The Employer’s Labor Application was accepted by the CO on July 26, 2007, where the prevailing wage was indicated as $50.88 per hour. The Employer also gave evidence of posting for the position on a job search website from February 4, 2007 to February 21, 2007. An audit was issued on September 19, 2007 by the CO requesting additional recruitment documentation. The Employer submitted evidence of its ad posting on monster.com for 17 days, which listed the salary as 50 to 70 dollars per year. Since the wage listed on the ad was lower than that listed on the prevailing wage document, the CO denied certification. On December 12, 2007, the Employer asked for a re-evaluation citing the fact that they submitted the wrong job advertisement, the correct one was an ad placed on NJ.com. On the NJ.com advertisement for the job there was no indication of wage. Again the CO denied certification citing 20 C.F.R. § 656.24(g) which states a review can only include documentation requested from a CO or documentation that that Employer originally did not have the opportunity to present.

PERM regulation 20 C.F.R. § 656.24(g)(2) controls and it provides a request for reconsideration may only include “documentation actually received from the employer in response to a request from the CO” or “documentation that the employer did not previously have the opportunity to present to the CO.”

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 “Pharmacist.”

The CO accepted the Employer’s Application for Permanent Employment Certification which stated the job required a bachelor’s degree in Pharmacy and a “Valid Florida Pharmacist license or ability to obtain a license” for processing on December 31, 2009. To show fulfillment of the advertising and recruitment requirements, the Employer gave evidence of postings in two papers. Citing the ad print in Pharmacy Today, a professional journal, the CO said it did not qualify as the required second advertisement because the job listed didn’t require experience or an advance degree and therefore denied certification. After the Employer reviewed the denial letter from the CO, the Employer asked that the advertisement in Pharmacy Today be allowed in light of the fact that the standards for the job were changed to 6 years in the PharmD program as well as experience in the field. Further, the Employer argued that advertising in that journal offered a larger pool of more highly skilled applicants needed for the job and that finding a qualified person for the job is highly difficult. In the appeal, the CO stuck to the denial of the application stating that even though Pharmacy job requirements have increased, CVS is not asking for someone with those requirements to fill the job. On the other hand in the appeal, the employer argues it only advertised that the job required a bachelor’s degree in order to “recruit based on the largest applicant pool,” which would include those individuals who were not affected by the increase in requirements in 2000 because of a grandfather clause. The Employer goes on to argue that states have different licensure standards for pharmacists before that licensure can be awarded.

PERM regulation 20 C.F.R. 656.17(e)(l)(i)(B)(4) controls and it provides that an employer may advertise in a professional journal in place of a Sunday advertisement if the job in question requires “experience and an advanced degree.”

The Board of Alien Labor Certification Appeals (BALCA) recently granted an Employer reconsideration for a case in which the CO originally denied labor certification (LC) for an alien worker for the position of “Care Taker-Ranch Hand.”

After the Employer filed an LC on June 5, 2009 on behalf of an alien worker, the CO denied certification on February 23, 2010 citing that section M-1, which asks whether the form was completed by the employer, was incomplete. If an individual answers “no” then they must fill out Section M-2 to M-5 which ask questions on whether the information filled out on the application is true and correct to the best of their knowledge. Though neither “yes” nor “no” was checked in Section M-1, at the bottom of Section M-2 to M-5 the Customer Service Coordinator, Collette Reed, signed her name indicating that she prepared the documents. During a request for review on March 18, 2010 the Employer stated the failure to check “yes” or “no” in Section M-1 was a accidental error and submitted a completed form. The appeal was forwarded to the Board without review by the CO. The Employer stated during the appeal that they only wanted reconsideration of the case by the CO, not an appeal to the Board. The CO did not specify how he had chosen to handle the Employer’s request for review; the case was forwarded to the Board without a ruling. The Board tried to determine whether the CO abused his discretion when deciding not to reconsider the denial of the certification. After evaluating previous cases and precedents, BALCA found the Employment and Training Administration (ETA) failed to, “create a workable system to apply in every situation that can arise during the PERM filing process.”

In the instant case, the Board reviewed the Employer’s original request, “Request for Review of Denial of Form ETA 9098” and found that the Employer specifically meant for the CO to reconsider the decision, it was not intended for BALCA review. Further, the Board found that the CO did abuse his discretion by sending the request for review off to BALCA instead of reviewing it personally.

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

The CO originally denied the application on the grounds that the Employer failed to provide evidence of its State Workforce Agency (SWA) job posting subsequent to an audit. The Employer stated that a screenshot of the Oklahoma Job Link Website was in fact submitted. The request for review was sent to the Appeals Board by the CO. In an appellate brief, the Employer continued to argue that the SWA job posting was included in the original audit while the CO stood by its original position that it was not.

Accordingly, the BOARD reversed the decision of the CO, finding that the Employers SWA job posting was clearly included in the audit response. The application was sent back to the CO for issuance of a labor certification.

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 “Chef.”

The applicants’ Employer Application for Permanent Employment Certification was originally accepted by the CO on December 1, 2006 but the application was then denied on December 14 due to the fact that alien did not meet the minimum education, training and experience requirements. The CO issued an audit notification and request for Notice of Filing (NOF) on January 15, 2009 after the Employer asked for a review of the case. On February 11, 2009 the alien’s employer provided all of the information that was questioned in the initial denial as well as the NOF which stated the position was posted from September 1 to September 13. The CO again denied the application on March 16 citing that neither the Employer’s name nor sufficient contact information was provided in the posting. Even though the Employer asked for reconsideration and provided evidence that the posting was sufficient, the CO stuck by the denial. The CO’s main reason for denial was that even though the NOF contained the name and title of the Employer, the information was only added after the initial posting. In the appellate brief filed, the CO reiterated the fact that the information was added to the document after it had already been posted. The CO also mentioned the ambiguity in regards to how many companies resided at that location.

PERM Regulation 20 C.F.R. § 656.10(d) controls and provides that the Employer give notice of filing of the Employer Application for Permanent Employment Certification and that the posting must contain the required information. It is the employer’s responsibility to submit thorough documentation, interpret requests broadly and to be confident that the documentation submitted will support the application. In this case, the Employer’s application did not contain the business name on the NOF and the NOF did not the fully meet all requirements.

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

The CO originally denied certification on May 5, 2008 because the sponsorship of the immigrant worker could not be verified by the Employer. On June 2, 2008, reconsideration was requested by the Employer due to the fact that the immigrant worker’s contact individual had recently stopped working for the restaurant. An Audit Notification was filed by the CO on December 23, 2009 requesting the Employer to provide its Notice of Filing and recruitment documents as well as present evidence to justify the foreign language requirement. Certification was denied by the CO on February 9, 2010 on the grounds that the Notice of Filing was “posted for fewer than 10 consecutive business days.” The Employer submitted another request for reconsideration, citing that the restaurant is in fact open seven days a week, making the dates supplied (May 14, 2007 to May 24, 2007) sufficient enough for a Notice of Filing posting requirement. Even though the Employer gave evidence that Saturdays and Sundays are the busiest days at the restaurant and that there is a need for employees on those days, the CO still denied labor certification stating business days are only defined by Monday through Friday, excluding federal holidays and weekends.

PERM regulations 20 C.F.R. § 656.10(d) controls and its provides the posting of a Notice of Filing by an Employer must be posted “for at least 10 consecutive business days” but does not specify what determines a business day. The CO denied certification based on the fact the Notice of Filing was not posted for at least 10 business days but the Employer provided evidence that the restaurant operated on Saturdays and Sundays, therefore requesting weekends be considered business days. BALCA disagreed with the CO saying business days are not confined to Monday through Friday. The Employers requirement was fulfilled because the Notice of Filing was posted for 10 consecutive days when “employees [were] on the worksite.” BALCA is giving the Employer another opportunity to demonstrate its Notice of Filing requirement due to the fact that the restaurant is open on the weekends.

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 “Chief Executive Officer.”

An Audit Notification was issued by the CO on April 28, 2006 requesting documents showing the company’s finances, recruitments and corporate structure due to the fact that the application showed the employer is “a closely held corporation, partnership or sole proprietorship.” The Employer submitted its Articles of Incorporation, along with other requested documentation on May 23, 2006. The CO denied the certification on November 9, 2007 because the documents submitted by the employer were not adequate and because it was a close partnership where aliens have influence and control, therefore job opportunities were not available to US workers. The CO cited 20 C.F.R. §656.10(c)(8) which states that job opportunities must clearly be open to all US workers. The Employer responded by submitting a request for review arguing that according the Department of Labor a single factor doesn’t control the authenticity of a job opportunity where an alien has influence. The employer went on to argue that the alien was not involved in the recruitment process, holds no management position, and is neither an incorporator nor a founder. On March 26, 2009 the CO filed a letter of reconsideration finding the employer still did not prove the job was open to all US workers and still believed the alien had a significant role in the management of the company.

PERM regulation 20 C.F.R §656.10(c)(8) controls and provides that a job opportunity must be clearly open to any US worker. In the event of an audit of a closely held company where an alien holds an ownership interest the employer must be able to prove the existence of a legitimate job opportunity for all US workers. In the instant case, the employer failed to demonstrate the existence “of a bona fide job opportunity ….available all US workers.” The employer did not overcome the presumption that the alien has power and control in the company as well as over the job opportunity.

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 “Assistant Manager.”

The Employer originally stated on the ETA Form 9098 that the position required a high school education and 24 months of experience in the job but when the alien filed his application he only had a high school education. The application was returned to the Employer by the CO based on the grounds that the Employer failed to indicate the year the education was completed. When the form was returned, it showed the alien did not have any education but on the Form 9098 it still stated that high school completion was a requirement for the job. On the grounds that the alien did not meet the job qualifications of Form 9098 the CO denied the application. A request for reconsideration of the application was submitted; the CO found that the grounds for denial were valid. Since the education level had been changed on the Form 9098, the alien no longer had the required experience for the job.

PERM Regulation 20 C.F.R. § 656. 21 (b)(5) controls and provides that an “employer must demonstrate that the requirements it specifies for the job are its actual minimum requirements and that it has not hired the alien or other workers with less training or experience for jobs similar to the one offered.” When the form was resubmitted showing the alien with no education and the job requiring a high school degree, the CO found that the alien was unqualified for the job. The CO made the decision to deny based on the Form 9098 not based on documents accompanying the form.

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 “Supervisor.”

The employer filed an application for labor certification which was accepted for processing on February 8, 2006. ETA Form 9089 indicated a requirement of thirty-two (32) months of experience in the job offered, and six (6) months of training as a certified welder. The CO issued an Audit Notification letter requesting evidence of recruitment and other required documentation and the employer complied. Thereafter the CO denied certification because the foreign worker did not meet the Employer’s minimum education, training and experience requirements, in violation of 20 C.F.R. §656.17(i). Specifically, the application required 6 months of training as a certified welder and the application did not show that the Alien had this training. The Employer responded by requesting reconsideration stating that the Alien had a total of 13 years of experience in construction work and gave specific dates of employment with other companies. The CO again denied certification on the same basis. The employer submitted another request for reconsideration stating that the Alien was the ONLY applicant to respond to recruitment and met every requirement of the posting including that of a certified welder. The CO issued a letter of reconsideration indicating that denial was proper because the Alien did not meet the minimum requirements and no further evidence was provided to support the employer’s claim that the Alien in fact had the 6 months of required training as a certified welder.

PERM Regulation 20 C.F.R. § 656.17(i)(1) controls and it provides that, “the job requirements, as described, must represent the employer’s actual minimum requirements for the job opportunity.”