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 “Cook Assistant, Japanese Cuisine.”

After audit, the CO denied the labor certification stating the prevailing wage on the ETA form 9089 did not match the one listed on the prevailing wage determination (PWD). The Labor application listed “$10.04” per hour and the prevailing wage determination listed “$10.14” per hour. The Employer requested reconsideration of the denial stating the prevailing wage discrepancy was “a minor typographical error”, “a clerical mistake of minor importance,” and that “no potential applicant was exposed to the clerical error.” They cited its Notice of Filing included the accurate wage. The Employer also argued in order to correct and re-file the labor application they would have to re-start the time-consuming recruitment process all over again.

After reviewing the reconsideration, the CO affirmed its denial of certification. He believed that under the PERM regulations, “employers must present an application that is complete and accurate to ensure the integrity of the PERM process.” The CO also pointed out that “$10.04” was typed twice on the application. The CO based his decision on the 20 C.F.R. 656.10(c)(1), which requires employers to certify in applications for permanent employment certification that the “offered wage equals or exceeds the prevailing wage.” The CO forwarded the case to BALCA for review.

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for several “Software Engineer” positions.

Upon evaluating an Employer’s Application for Permanent Labor Certification, the CO ordered the Employer to present copies of its recruitment data.

After reviewing the recruitment data, the CO denied the Labor Application because he believed it violated PERM regulations 20 CFR 656.10 (d)(4) and 656.17(f)(6). The CO stated the Employer’s Notice of Filing (NOF) and other recruitment materials included a travel requirement not listed on the Employer’s ETA Form 9089.

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 “Support Engineer”.

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification directing the Employer to present its recruitment records. In the Notice of Filing (NOF), the Employer lists the position “requires a BA/BS or MA/MS degree or equivalent in Computer Science, Engineering, Physics, Math, Information Systems, Business or related field; Team Manager Positions are available.” The Washington State Workforce Agency (SWA) job order stated “qualifications may include a MA/MS degree or equivalent or a BA/BS degree or equivalent in Computer Science, Engineering, Math, Physics, Information Systems, Business or related field; Multiple positions available.”

The Employer complied with the Audit request and ultimately the CO denied certification of the application. The position communicated in its NOF and SWA did not match the one listed on the Employer’s ETA Form 9089 in violation of PERM Regulation 20 C.F.R. § 656.17 (f)(6). On the Employer’s NOF and SWA, it listed a Master’s degree that surpassed the requirements recorded on the ETA 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 “Computer Programmer.”

Upon evaluating an Employer’s Application for Permanent Labor Certification, the CO denied the Labor Application because the Employer ran its recruitment advertising in the Arkansas Democrat Gazette, as he believed it was not the newspaper of general circulation for Bentonville, Arkansas. The company was located in Bentonville, AR and the newspaper was headquartered in Little Rock, AR. He believed that the Arkansas Democrat Gazette would not bring replies from available US workers in the area of intended employment.

The Employer sent a reconsideration request to the CO. In the argument, the Employer declared that “The Arkansas Democrat Gazette is most likely to bring responses from available US workers because it is the most widely circulated newspaper in Bentonville and the most widely circulated Sunday newspaper in all of Arkansas.” They submitted several pieces of evidence to back up their claims including circulation numbers from the Arkansas Democrat Gazette and Mondo Times website. One of these documents stated there is no other newspaper in Bentonville, AR.

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 “Senior Software Engineer.”

The CO denied the labor certification stating the alternative requirements for the position were different (not substantially equivalent) from the primary job requirements on the ETA Form 9089. The Employer mentions as an alternative requirement for this position – 12 years of related experience as being equivalent to possessing a Bachelor’s degree. On the Form, the Employer lists the “primary requirements of a Bachelor’s degree in Engineering, Electronic Engineering, or a closely related field, and 60 months of experience” in the job offered. The CO cited a violation of PERM Regulation 20 C.F.R. § 656.17(h)(4)(i).

The Employer requested reconsideration of the denial stating it only listed one education and experience requirement; therefore, it did not accept an alternative combination of education & experience. They argued that their recognition of 12 years of experience as the equivalent of a bachelor’s degree is a widely used standard in the IT industry and among U.S. educational institutions.

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 “Business Development Manager-IV.”

After receiving and reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit. He directed the Employer to present copies of its recruitment records. The Employer responded with its New Jersey State Workforce Agency (SWA) Job order that was administered through America’s Job Exchange (AJE).

Once the CO received the audit materials, he denied certification of the application. The CO cited the position communicated in its recruitment advertising did not match the one listed on the Employer’s ETA Form 9089 in violation of PERM Regulations 656.17 (f)(6). In its Labor Application, the Employer stated the position required “a Master’s Degree and 12 months of experience in the job offered.” In its SWA job order, the experience requirement listed “Mid-Career (2-15 years).”

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 “MR Clinical Development Leader.”

The CO denied the labor certification without audit stating the alternative requirements for the position were not substantially equivalent to the primary job requirements on the ETA Form 9089. On the form, the Employer mentions as an alternative requirement for this position “any suitable combination of education, training and experience as an MR clinical development leader, MR Applications Production Manager, Clinical Scientist, Radiographer or as a MR Specialist.” However, the Employer lists “Bachelor’s degree in Radiology, Biomedical Engineering, Chemistry or Medical Technology and 60 months of progressively responsible post-bachelor’s experience and some experience with MR equipment, product and/or application development.” The CO believed the “any suitable combination” wording did not specify the minimum acceptable requirement, so he denied the application in violation of PERM Regulation 20 C.F.R. § 656.17(h)(4)(i).

The Employer requested reconsideration of the denial stating the CO misread their answers to the questions on the form. They argued the minimum requirements are substantially the same as the primary requirements listed on the ETA Form. The Employer mentioned PERM regulation 20 C.F.R. § 656.3, “if the employer is willing to accept work experience in lieu of a baccalaureate or higher degree, such work experience…must be stated on the application 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 “Senior Systems Analyst.”

Upon evaluating an Employer’s Application for Permanent Labor Certification, the CO denied the Labor Application because he believed it violated PERM regulation 20 CFR 656.17(f)(4). The CO denied certification because “the newspaper advertisement failed to list the correct geographical area of employment with enough specificity to apprise applicants of any travel requirements.” He pointed out the physical area of employment contained in the employer’s job ad in the San Francisco Chronicle as well as hotjobs.yahoo.com does not match the one listed on the ETA Form. The ad lists San Francisco, while Fremont is recorded on the ETA Form. The CO stated these two cities are located in different “Metropolitan Statistical Areas” (MSA).

The Employer filed an appeal to BALCA. They declared that the CO made an error in thinking Fremont and San Francisco were in different MSA’s. The Employer argued that the “advertisements complied with PERM requirements and DOL guidelines for roaming positions.” As evidence, the Employer requested BALCA to take administrative notice of a printout from the Census Bureau’s website which lists the MSA’s, among other evidence. In addition, they wanted the Board to review a “County to County” commuting chart from the San Francisco Bay area. The Employer explained that Fremont is the company’s headquarters but the locations of the job are yet unknown.

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 “Industrial/Organizational Psychologist.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. The Employer presented its response and the CO issued a Notification of Supervised Recruitment. A few weeks later, the Employer sent a copy of the proposed job advertisement as well as a copy of the foreign worker’s Master’s degree and school transcripts. In response, the CO requested a signed sworn statement and documentation that explains why training is not realistic to meet the requirements for the particular position. The Employer responded with the required documents. The CO sent the Employer the resumes it had received from advertising. Two months later, the Employer submitted its recruitment report and accompanying records.

Upon review of the recruitment report, the CO denied certification of the labor application. He stated the Employer turned down qualified U.S. job applicants for “non-lawful job-related reasons.” The CO believed there were at least three fitting candidates for the job opening that were refused because the Employer believed they did not meet the minimum requirements. In his denial, the CO cited the Employer’s statement on the ETA Form 9089, “will accept any suitable combination of education, training and experience.”

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 “Bilingual Programmer.”

After obtaining & examining an Employer’s application for Permanent Labor Certification, the CO issued an Audit notification ordering the Employer to submit a copy of the State Workforce Agency’s (SWA) job order. The Employer replied to the Audit within 30 days.

The CO denied labor certification stating “the SWA offered employment terms and conditions of employment that were less favorable than those offered to the alien.” On the SWA job order, the position “required drug testing/screening and background checks.” These requirements were not listed on the Employer’s ETA Form 9089. The Employer requested reconsideration and attached an amended copy of the ETA Form 9089 that listed the required drug testing/screening and background checks.