Articles Posted in Employment Based Immigration

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

The CO accepted the employer’s application for Permanent Employment Certification on behalf of the alien. The CO denied certification after issuing an audit citing the Employer’s Notice of Posting was only posted for nine consecutive business days because one of the days the NOF was posted was Columbus Day. Additionally, the certification was denied on the grounds that the Employer did not provide sufficient evidence of the employee referral program with incentives.

PERM regulation 20 C.F.R. § 656.10(d)(1)(ii) controls and it provides a “business day” is “any day that employees are working on the premises and can see the Notice of Filing.

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

After certification was denied on May 25, 2007 because the company could not prove that it was a legitimate business, the Employer requested review of the case and an opportunity to submit evidence that it was a bona fide company. The Employer stated the notification of denial was not received until September 12, 2007and only after an email inquiry request had been sent about the case to the Atlanta Processing Center. The Employer asserted that there was no time to reply to the original denial letter and argued that the denial should be rescinded so that there was an opportunity to present evidence. The Employer did not respond to an Audit Notification issued by the CO on January 28, 2009 requesting documentation of recruitment efforts. After failing to respond to the Audit Notification, the CO denied certification on April 2, 2009. On April 14, 2009 the Employer argued the Audit Notification letter was never received and requested review but the CO did not grant the request. In the Employer’s statement of appeal to BALCA, the Employer argued that because there was no USPS tracking number attached to the Audit Notification there was no way of knowing whether the Audit Notification was delivered or received.

PERM regulation 20 C.F.R. § 656.20(b) controls and it provides that a “substantial failure by the employer to provide required documentation will result in that application being denied under § 656.24…”

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

The Employer’s application was accepted for processing on May 2, 2007 but later denied by the CO who cited that the Employer could not prove the business was a bona fide entity. The Employer submitted evidence to show the business was bona fide. As a result, the CO issued an Audit Notification and requested documentation of the Employer’s recruitment procedures as well as a copy of the job order the Employer placed with the State Workforce Agency (SWA). The Employer’s response to the audit was filed but certification was again denied by the CO who stated the Employer submitted insufficient documentation for the SWA job order. The Employer asked for reconsideration and argued that the documentation submitted complied with the regulatory requirement. The Employer also noted a certified copy was unable to be obtained because prior to the audit, the records were purged after 18 months by the SWA. Still, the CO found the denial accurate citing it was the Employer’s duty and requirement to “retain documentation supporting the application for five years under the regulation.” The case was forwarded to BALCA. On appeal, the Employer argued that there are no current standards that specify what constitutes proof of a SWA job order.

PERM regulation 20 C.F.R. § 656.17(e)(2)(i) controls and it provides “the start and end dates of a job order entered on the application serve as documentation of placing the SWA job order.”

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 “Senior Immigration Paralegal.”

The Employer’s Application was originally accepted by the CO on August 22, 2007 on which the Employer had stated a bachelor’s degree and 60 months of related experience were required for the position. Also indicated were a yearly wage of $70,000 and a prevailing wage of $43,413 per year. An Audit Notification was issued by the CO requesting proof of business necessity as well as a copy of the NOF. The Employer’s response containing the NOF included a prevailing wage determination (PWD) of $43,413 per year, and the response included a statement justifying the business necessity for the stated minimum job requirements. Certification was denied by the CO on January 9, 2009. The wage listed on the NOF was lower than the wage offered to the alien by the Employer. After reviewing the case, the Employer argued that at the time of posting the NOF the alien was being paid a different amount and offered supporting documentation. The case was then forwarded to BALCA by the CO.

PERM regulation 20 C.F.R. §656.17(f)(7) controls and it provides that an advertisement must not contain wages or terms and conditions of employment that are less favorable than those offered to the alien. In the present case, the NOF listed a wage range of $50,000-$65,000 but when the application was filed by the Employer, the alien was being paid $70,000 per year. Therefore, the wage offered to the alien was “$70,000.00.”