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 “Senior Food Technologist.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied the application. He believed that the Washington Examiner, where the employer placed its Sunday job postings, did not classify as a newspaper of general circulation in the area of intended employment. The CO was certain most job seekers would choose a paper with a larger classified section and job advertisements. He based his denial on PERM regulation 20 C.F.R. 656.17 (e)(1)(i)(B)(1). This regulation mandates newspaper advertisements for recruitment must be placed “in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity; and most likely to bring responses from able, willing, qualified and available U.S. workers.”

After the denial, the Employer requested reconsideration of the case. The Employer argued the Washington Examiner did have a substantial classified section. They stated the newspaper “has a classified section with advertisements for a large number of job opportunities that included both professional & non-professional positions.” In its reconsideration request, the Employer included a “Wikipedia” article about the Washington Examiner. The Employer argued that because of the size of the circulation of the Examiner as reported on the Wikipedia page, it was in fact the newspaper most appropriate to the occupation and workers.

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 “Operating Engineer.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied certification of the application because the Employer had placed their State Workforce Agency (SWA) job order more than 180 days prior to the filing of their ETA Form 9089.

The Employer sent a reconsideration request to the CO arguing that “the 180 day period should be calculated based on the end date of the SWA, rather than the date it commenced.” To interpret the regulations otherwise would penalize employers who wanted to run their SWA’s for longer than 180 days. The CO did reconsider but afterwards, he confirmed the denial. Not happy with the outcome, the Employer appealed the decision to BALCA and restated its argument.

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 SW Engineers, Applications.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. He requested the Employer provide its recruitment documentation and a copy of its Prevailing Wage Determination (PWD). The Employer responded and the CO denied certification on two grounds. First, the wage offered in the Notice of Filing and job order was lower than the PWD. The Employer offered $59,467 and the PWD was $59.467.20. In addition, the CO stated the Employer failed to make available copies of employer notices on its employee referral program with incentives.

The Employer sent a reconsideration request to the CO arguing the 0.0003% discrepancy should not cause their labor application to be denied. They indicated their use of “the Department of Foreign Labor’s Foreign Labor Certification (FLC) Data Center Online Wage Library to determine the appropriate annual wage.” The Employer also stated that it had provided a flier of its Employee Referral Program as well as data in its Recruitment Report about the program. Despite the Employer’s claims, the CO delivered a second denial and forwarded the case to BALCA for assessment.

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 “Hardwood Floor Installer.”

Upon evaluating the Employer’s Application for Permanent Labor Certification, an Audit was issued. In this Audit Notification, the CO asked the Employer to explain why US workers were rejected. After reviewing the Audit response, the CO denied the labor certification stating the Employer rejected three US applicants for reasons that were not job related. The CO “found the rejections were based on the failure to meet the Employer’s job requirement of having two years of hardwood floor installation experience.” He discovered three of the candidates have other experience in the construction industry that he believed would meet the requirements for the job.

The Employer requested reconsideration and BALCA review. They argued the CO was wrong in judging these three candidates were qualified for the position. Even though the applicants did have experience in “general carpentry/and or construction,” they did not believe this experience was enough to meet the requirements of the Hardwood Floor Installer job. The Employer included a Business Necessity Letter in its Audit response materials. The Employer pointed out that one of the candidates did have skills in hard wood flooring installation but he did not list how he obtained that experience. The employer also provided proof to the CO of letters that they had sent to the US worker applicants asking for them to contact the company with further information on their qualifications. The Employer claimed none of them responded to the letters.

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 “Nursery Manager.”

After reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. He wanted the Employer to submit a copy of the State Workforce Agency’s (SWA) Prevailing Wage Determination (PWD). The Employer submitted a PWD from “The Survey Group” along with a letter from this company that provided a job description which was similar to the Nursery Manager’s position, specifically, the position was titled – Nursery Technician.

The CO then informed the Employer that they would need to conduct supervised recruitment. The CO ordered the company “to obtain an updated PWD from the National Prevailing Wage Center.” The CO asserted the PWD listed on the Employer’s 9089 Form was no longer valid. As part of its response to the Supervised Recruitment, the Employer insisted that the CO did not have the authority to instruct them to obtain a new PWD. The Employer also sent a draft advertisement that included the original PWD. The CO issued a Draft Advertisement Correction because “the wage offer was lower than the current prevailing wage.” He directed them to send a new advertisement with a PWD that was equal to or surpassed the current PWD.

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 “Hardwood Floor Installer.”

Upon evaluating the Employer’s Application for Permanent Labor Certification, an Audit was issued. In this Audit Notification, the CO asked the Employer to explain why US workers were rejected. After reviewing the Audit response, the CO denied the labor certification stating the Employer rejected three US applicants for reasons that were not job related. The CO “found the rejections were based on the failure to meet the Employer’s job requirement of having two years of hardwood floor installation experience.” He discovered three of the candidates have other experience in the construction industry that he believed would meet the requirements for the job.

The Employer requested reconsideration and BALCA review. They argued the CO was wrong in judging these three candidates were qualified for the position. Even though the applicants did have experience in “general carpentry/and or construction,” they did not believe this experience was enough to meet the requirements of the Hardwood Floor Installer job. The Employer included a Business Necessity Letter in its Audit response materials. The Employer pointed out that one of the candidates did have skills in hard wood flooring installation but he did not list how he obtained that experience. The employer also provided proof to the CO of letters that they had sent to the US worker applicants asking for them to contact the company with further information on their qualifications. The Employer claimed none of them responded to the letters.

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 “Electrical Helper.”

Procedural Case History – Case was originally accepted by DOL on December 3, 2007. June 11, 2008 CO denied certification. Appeal File was sent to BALCA on April 30, 2010. On April 21, 2011, BALCA vacated the denial and remanded for further processing. This labor application was for a nonprofessional position.

The Atlanta National Processing Center issued a letter directing the employer to provide evidence that it was a bona fide business entity. Additionally, the CO issued an Audit notification in June 2011. The CO asked the employer for copies of the newspaper tear sheets from its Sunday newspaper advertisements. The CO gave the Employer a one month deadline to submit its response. The Employer provided its response as well as a note asking for a 30 day extension on the tear sheets. The employer’s lawyer stated they had requested it but had not received it at the time of mailing the response.

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 Design Verification Engineer.”

After reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. Upon receiving the employer’s audit response, the CO denied the application for multiple reasons. He declared that the Employer’s print advertisements did not “provide a description of the vacancy specific enough to apprise the US Workers of the job opportunity.” The remaining reasons for denial concerned the Employer’s use of on-campus recruitment.

The Employer presented a Request for Reconsideration claiming its evidence adhered to ETA guidance and regulations. The CO accepted the Employers’ claims for part of the denial but believed his other reasons for denial were valid. The CO wanted evidence that the job fair actually took place, which is not required under the regulations. In addition, the CO believed that the email received by the on-campus placement office did not contain enough specific information concerning the job.

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 “Nursery Manager.”

After reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. He wanted the Employer to submit a copy of the State Workforce Agency’s (SWA) Prevailing Wage Determination (PWD). The Employer submitted a PWD from “The Survey Group” along with a letter from this company that provided a job description which was similar to the Nursery Manager’s position, specifically, the position was titled – Nursery Technician.

The CO then informed the Employer that they would need to conduct supervised recruitment. The CO ordered the company “to obtain an updated PWD from the National Prevailing Wage Center.” The CO asserted the PWD listed on the Employer’s 9089 Form was no longer valid. As part of its response to the Supervised Recruitment, the Employer insisted that the CO did not have the authority to instruct them to obtain a new PWD. The Employer also sent a draft advertisement that included the original PWD. The CO issued a Draft Advertisement Correction because “the wage offer was lower than the current prevailing wage.” He directed them to send a new advertisement with a PWD that was equal to or surpassed the current PWD.

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 “Assistant Accountant.”

After examining an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification ordering the Employer to submit documentation of the Foreign Worker’s knowledge of various programs at the time of hire. The Employer replied to the Audit with a personal statement from the Foreign Worker stating she had the mandatory understanding of these programs. Also included was a letter from the Employer’s Comptroller confirming at the time of hire the foreign worker possessed the minimum requirements for the job position.

The CO sent a denial letter because he believed the Employer failed to provide substantial evidence of the Foreign Worker’s knowledge of the programs (i.e., he wanted documentation – certifications, licenses, a notarized statement.) He cited PERM Regulation 20 CFR 656.20(b) as the authority of his denial, which states, “a substantial failure by the employer to provide required documentation will result in the application being denied.”