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 Commissioning Engineer.”

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 Prevailing Wage Determination received from the State Workforce Agency (SWA), along with a copy of the request for the determination submitted to the SWA.” The Employer responded to the Audit but did not include the SWA prevailing wage determination or a copy of the request.

The CO denied labor certification citing the Employer’s failure to provide the prevailing wage determination as issued by the SWA. He cited PERM regulation 20 CFR 656.20(b) as the source of his denial. PERM regulation 20 CFR 656.20(b) provides “a substantial failure by the employer to provide required documentation will result in that application being denied…”

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 Software Engineer.”

The CO denied the application stating that the Labor application is incomplete and inconsistent with the submitted information from the employer and the applicant. On the Labor application, the Employer’s physical address is listed as Martinsburg, West Virginia but their phone number’s area code is Arlington, Virginia. The applicant’s home address is listed in Martinsburg, West Virginia but his phone number’s area code -571 is representative of Leesburg, Virginia. As additional proof, the CO declared the Employer had signed in Section N, of the LCA, that the information submitted was “true and accurate to the best of its knowledge.”

Perm regulations require an employer seeking to apply for permanent labor to file an ETA Form 9089.20 C.F.R. & 656.17(a). These regulations state that any incomplete applications will be denied.

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 “R & D Manager/Chemist.”

After receiving and reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. The Employer responded with details of its recruitment efforts as well as summary chart. After reviewing the Audit materials, the CO denied certification of the application. The Employer provided recruitment efforts that did not match the one as listed on the Employer’s ETA Form 9089. In its ETA Form, the Employer indicated it advertised the job opening through its “employee referral program, a job search website and its own website.” In the Audit materials, the Employer failed to provide any documentation of the referral program. It included an advertisement with ecampusrecruiter.com sponsored by the University of Pittsburgh, which was not listed on ETA Form 9089. Since the Employer failed to provide any evidence of the employer referral program, the CO had no choice but to deny certification of the labor application.

The Employer sent a reconsideration request to the CO. The Employer argued that it had made a clerical mistake by listing the referral program on its ETA Form. In its request for reconsideration, it also submitted a corrected ETA Form 9089. The CO re-affirmed its denial and forwarded the case to the BALCA for review.

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 “Indian Vegetarian Cook.”

After receiving and reviewing the Employer’s Application for Permanent Labor Certification, the CO issued an Audit. He directed the Employer to present a signed notarized statement attesting to the sponsorship of the Alien. In addition, the CO requested answers to several questions concerning the position and the Foreign Worker. The Employer responded to the Audit request in a timely manner.

Once the CO received the audit materials, he denied certification of the application. The Employer did not provide the notarized statement that was requested in the Audit Notification Letter. The Employer sent a reconsideration request to the CO. The Employer stated that “by signing and submitting the ETA Form 9089, it had attested it had a job opportunity available.” The CO re-affirmed his decision and stated that the Employer’s failure to send back a notarized letter with the Audit was a valid reason for denying certification. The CO forwarded the case to BALCA for review.

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification for the position of “Latin American Refining Prospect Director.”

An Audit Notification was issued by the CO to the Employer requesting them to submit its recruitment documentation. A response to the request was submitted by the Employer. The Employer stated that it conducted three additional steps in its recruitment process, including listing the job opportunity with a private employment firm. In the response, they explained they were unable to find applicants and received zero resumes that met the minimum qualifications for the position. The job requirements were a Master’s Degree in Business Administration or Chemical Engineering and 10 years of experience in the position or a managerial/executive position in the petroleum/refining industry. In its response, the Employer also submitted a copy of the Recruiting Firms’ advertisement. The ad included an extensive job description, educational & experience requirements as well as the location of the job opportunity. However, the advertisement did not mention the company by name.

The CO stood by his original decision citing the Employer failed to provide adequate documentation of its recruitment through the Recruiting Firm. In addition, the recruiting firm failed to identify the name of the Employer in its advertisements. The CO cited 20 C.F.R. & 656.10(c). It provides “the employer to attest that the job opportunity has been and is clearly open to U.S. workers.” In addition, the CO listed 20 C.F.R. & 656.17(f) (1) for the regulatory bases for denial. It “requires that advertisements name the employer.”

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 “Marketing Manager.”

Upon evaluating an Employer’s Application for Permanent Labor Certification, the CO ordered the Employer to present copies of its recruitment efforts. The Employer provided a copy of its notice of filing, job order with the Washington State Workforce Agency (SWA), as well as newspaper ads placed in the Seattle Times. In addition, they submitted a copy of the company’s recruitment report.

After reviewing the recruitment data, the CO denied Certification because he believed it violated PERM regulation 20 CFR 656.17(f)(6), which provides that additional language not found on the ETA Form 9089 exceeds the job requirements for the position. The CO stated the Employer’s Notice of Filing (NOF), SWA job order, newspaper advertisements and web advertisements all listed “may require employer-reimbursed travel.” The phrase was not listed on the Employer’s 9089 form.

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 “Account Manager.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. It required the Employer to present all of its recruitment materials. The Employer responded with the documentation requested.

The CO denied the application based on PERM regulation 20 C.F.R. 656.17 (e) (1) (ii) (E). He stated “the employer failed to provide adequate documentation of the additional recruitment steps for professional occupations.” The Employer placed the ad for the Account Manager position on the website Dice.com, which the Employer argued was a trade or professional organization. The CO maintained that this website did not qualify as a trade or professional organization.

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 “Accountant. Level I.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. The Employer responded by sending certain information that the CO requested. In response, the CO informed the Employer that they would need to conduct supervised recruitment. As part of the process, the Employer had to submit a copy of the proposed job advertisement. A week later, the CO approved the advertisement and mailed further recruitment instructions. Over a month later, the Employer sent copies of the Georgia State Workforce Agency’s job order and an in-house job posting, along with copies of its advertisements.

A few months later, the CO told the Employer the recruitment time had concluded. In 30 days, the Employer needed to submit a comprehensive written report about the recruitment process and the results. In a timely manner, the Employer compiled with the request. In the report, the Employer noted it had rejected all US applicants, a few of which because the Employer was unable to communicate with them concerning the advertised position.

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 “Assistant Sports Editor, Al Dia.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. He asked the employer to provide documentation of their recruitment process. The Employer submitted copies of print and online job ads. However, the response did not contain any printouts from the employer’s own website.

The CO denied the application declaring that the Employer failed to deliver sufficient documentation to show the Employer used its own website to advertise the job. The Employer did not provide pages from their website that contained the dates the ads were posted online. In addition, the CO believed the Employer unlawfully rejected some US Applicants.

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 “Electronics Engineer.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification requesting evidence of the employee’s work experience. The Employer sent back its recruitment documentation as well as the worker’s educational information, among other documents.

Upon review of the Audit response, the CO denied the Labor Certification. The CO believed the applicant’s credentials did not match the position’s minimum job requirements recorded on the Labor application. He stated the worker did not have a Master’s degree or 60 months experience at the time of his hire and only received his Master’s degree after he started working for the company. Overall, the CO declared “the Employer’s job requirements listed on Form 9089 did not represent the Employer’s actual minimum requirements.”