Articles Posted in BALCA Decisions

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

In the aforementioned case, the employer, a private household filed a LC on behalf of an alien worker. The employer mailed the Application for Permanent Employment Certification to the Chicago Processing Center. The CO accepted the application for processing on October 24, 2006, and then re-keyed the application into the Department of Labor’s ETA electronic system. Weeks later the CO wrote a letter to the employer that denied the employer access to submit a Form 9089 electronically until the employer submitted proof of a Federal Employer Identification Number (FEIN), proof of a business entity, and proof of a physical location. Subsequently, the CO issued a letter denying certification. The reason for denial was that the employer could not be verified as a bonafide entity. In requesting reconsideration, the Employer asserted that the denial was vague, pointed out that it was a private household and not a company, but ultimately failed to identify how it was verified as a bonafide entity. The employer submitted a passport and her most recent tax return and further argued that neither her nor her legal counsel were ever contacted regarding verification of the employer’s existence. After reviewing the request, the CO denied reconsideration. The CO stated that providing a Social Security number was not a valid substitute for a FEIN. The matter was referred to BALCA for review. In the employer’s brief, she based her argument on a denial of due process.

Upon BALCA review, it was determined that the regulations require the submission of a FEIN on ETA Form 9089 because the FEIN is used to verify whether an employer is a bona fide entity. The PERM regulations at 20 C.F.R. § 656.3 require that an employer possess a valid Federal Employer Identification Number (FEIN) whether they are a private household or a legitimate company. Case law further provides that the use of a social security number as a substitute for a FEIN is prohibited because the Internal Revenue Service (IRS) clearly requires employers to possess a FEIN in order to file tax forms for domestic household employees.

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

In the aforementioned case, the employer filed a LC on behalf of an alien worker. The significant facts of the case were: the alien signed the application on November 19, 2005; the employer’s attorney signed the application on December 13, 2005; the employer’s president signed the application on December 3, 2006; and the employer ran advertisements in a newspaper of general circulation on May 7, 2006 and May 14, 2006, and all of these facts were indicated within the application for labor certification. The CO denied certification because the advertisements used for recruitment did not occur within the requisite timeframe. The PERM regulations clearly state that advertisements for recruitment must occur at least 30 days, but no more than 180 days, prior to the date the application was filed.

The CO received request for reconsideration from the employer’s attorney. In response, the employer’s attorney submitted evidence indicating that advertisements were run in a newspaper and a journal for three consecutive days in June of 2005. Additionally, the employer’s attorney mistakenly had filed the labor application with the State Workforce Agency rather than directly with a federal Certifying Officer, and had to re-file with the latter. The employer’s attorney confessed error in the timing of the advertisements, but urged that they did in fact advertise, and did not receive any responses. The employer’s attorney alleged that the error was procedural. After reviewing the request, the CO denied reconsideration. The employer requested BALCA review.

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the PERM filing date and vacated the Certifying Officer’s (CO) denial of the application.

The employer, an independent school district filed a pre-PERM ETA form 750A application for permanent alien labor certification on October 24, 2004 for the position of Middle School Teacher. The work location was East Houston Intermediate School and the job description involved the language “teach middle school students…” Subsequently, on January 11, 2006, the employer filed a ETA form 9089 under PERM for the same Alien for the position of Elementary School Teacher. The work location for this application was Hilliard Elementary School, and the job description involved the language “teach elementary school students…” On the ETA form 9089, the employer indicated that it was seeking to utilize the filing date from the pre-PERM application, the date of October 24, 2004. Thereafter, the employer received a letter from the Dallas Backlog Elimination Center (BEC) in reference to the pre-PERM application. The BEC gave the employer several options to pursue. The employer responded by withdrawing 20 pre-PERM application, one of which was the present application, because applications had also been filed under PERM and were pending. In January, the following year, the employer received a letter granting certification on the PERM application. The date of acceptance was that of the newly filed PERM application, January 11, 2006. The employer requested that the CO reconsider the earlier pre-PERM application filing date. A request for additional information was issued to the employer, and the employer promptly replied. The CO subsequently denied the motion because the job descriptions, job titles, and job locations in the ETA form 750A and form 9089 were not identical. Regulations require that job descriptions be identical in order for the employer to retain the filing date from an earlier pending pre-PERM application. The CO forwarded the matter to BALCA for review.

Upon BALCA review, it was determined that the CO’s letter denying reconsideration stating that the application had been denied was clearly in error, and that there had been no intent to de-certify the application, leaving the remaining issue of whether the CO correctly determined the filing date for the PERM application.

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination

of a Certifying Office (CO) denying labor certification (LC) for an alien worker for the position of “Home Health Aide.”

In the aforementioned case, the employer, a private household filed a LC on behalf of an alien worker. The CO denied certification of the application on four grounds. The PERM regulations require that employers file completed applications for Permanent Employment Certification. The employer failed to make selections for the following questions on the ETA Form 9089: Section C-6 (Year commenced business); C-7 (Employer FEIN); F-3 (Skill level); and K-5 (Job 3 title). Subsequently, the Employer filed a request for reconsideration. In requesting reconsideration, the Employer asserted that she completed Sections C-6 and C-7 and no further information or explanation was given. After reviewing the request, the CO denied reconsideration. The CO stated that the employer’s request for reconsideration did not overcome all deficiencies noted in the determination letter. The employer requested BALCA review.

The Board of Alien Labor Certification Applications (BALCA) recently affirmed the final determination of the Certifying Officer (CO) denying labor certification.

In the present case, the petitioner (employer), a plumbing and compacting installation service filed an application for labor certification for the position of Plumber on behalf of a foreign alien beneficiary. Following recruitment, the employer filed a recruitment report in which it rejected five U.S. applicants. Only two of the applicants’ qualifications are questioned on appeal. According to the recruitment report, Applicant 1 was rejected because his resume indicated that he did not possess any U.S. experience as a plumber, and the employer thereafter assumed that he/she obviously had no knowledge of state and city plumbing codes, a job requirement for the proffered position. Applicant 2 was rejected because the applicant’s experience as a Plumber dated from the period of 1978 to 1984, after which he/she only worked as a Supervisor to several plumbers and helpers. The Employer stated that they desired the services of a raw plumber not a supervisor.

After thorough review of the documentation presented with the application for labor certification, the CO issued a Notice of Findings (NOF) proposing to deny certification. The CO noted that the employer unlawfully rejected applicants 1 and 2 based on resumes alone. With Applicant 1, it was not altogether established that he/she was not familiar with applicable New York (NY) plumbing codes and specifications and an interview would have clearly established the Applicant’s qualifications for the proffered position. The 2nd Applicant was rejected solely because he was overqualified according to his resume. In response to the NOF, the employer filed a rebuttal letter indicating why Applicants 1 and 2 were not further interviewed. The employer argued that the first applicants resume did not indicate any plumbing experience in NY, and there was no reason to assume that his home improvement experience in NY involved any plumbing. Accordingly, under those circumstances, the employer felt that he was not obliged to interview the applicant. In regards to Applicant 2, the Employer relied upon the applicant’s present occupation and stated that no one willing regresses in their career; therefore the applicant cannot be considered to be willing to be available and willing for the job of raw plumber. Thereafter, the CO issued a final determination denying certification. The CO indicated that the relevant standard in determining whether a resume merits further investigation is whether or not there is a reasonable possibility that an applicant may meet the employer’s minimum requirements despite an apparent shortcoming on the applicant’s resume.