Articles Posted in Employment Based Immigration

The Board of Alien Labor Certification Appeals (BALCA) recently reversed the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the professional position of “Key Accountant Manager/ICSD.”

The employer filed a LC and ETA Form 9089 indicated that one of its recruitment steps was to advertise with its employee referral program from July 26, 2006 to September 30, 2006. The CO issued an Audit Notification letter on December 14, 2006 indicating that the reason prompting the audit was a foreign language requirement. The Employer responded to the Audit Notification with a package of materials. Thereafter the CO issue a denial letter on the sole ground that the Employer had failed to provide documentation of its use of an employee referral program consistent with the regulations. The employer requested reconsideration arguing that the audit notification had not been directed at the employee referral system and that a document explaining the company’s employee referral program was inadvertently omitted from the Recruitment materials. Although the document had been omitted, the employer further argued that it was not an omission in recruitment, which had been completed and reported on a timely basis. The document explaining the program and its incentives was included in the Employer’s Motion for Reconsideration. The CO issued a letter of reconsideration indicating that the Employer had failed to provide evidence of an Employee Referral Program that provided dated copies of the employer notice or memorandum advertising the program; specifically, documenting the incentives that would be offered to the employees.

PERM Regulation 20 C.F.R. § 656.17 (e)(1)(ii)(G) controls and it provides that when an employer files an application for permanent alien labor certification under the basic process for a professional position, the regulations require it to have conducted certain recruitment steps prior to the filing and be prepared to document those steps. One type of recruitment that may be used to support an application is use of an employee referral program with incentives. The way an employer can document this type of recruitment is “by providing dated copies of the employer notices or memoranda advertising the program and specifying the incentives offered”. In the instant case, the Employer’s attorney admitted that it inadvertently omitted the documentation describing the Employer’s employee referral system. However, it is simply not clear whether the CO was affirming the earlier denial based on the Employer’s incomplete audit response, or on the basis that the documentation provided by the Employer with its motion for reconsideration was inadequate under the regulations. Upon review of the entire record, BALCA stated that the Employer was in compliance with the requirements for an employee referral program and met all of the required steps in the PERM process.

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

The employer filed a LC which was accepted for processing on October 25, 2005. ETA Form 9089 indicated that the State Workforce Agency (SWA) prevailing wage determination was $19.04 per hour and the foreign alien was being offered a wage of $19.04 per hour. The CO issued an Audit Notification letter requesting documentation of recruitment efforts. The Employer responded by providing a copy of its New York job order listing a range of $18.00 to $19.50 per hour. Thereafter the CO issue a denial letter because the job order listed a wage that was less than the wage offered to the Alien, and that was less than the prevailing wage. The Employer thereafter requested reconsideration arguing that it was their practice to compensate applicants according to their experience – the reason for the range, and that the offer of $19.04 per hour was offered to the Alien and to any American worker. The CO issued a letter of reconsideration establishing that the denial was valid because the low end of the range was less than the prevailing wage determination.

PERM Regulation 20 C.F.R. § 656.17(e) controls and it provides that most sponsoring employers are required to attest to having conducted requirement prior to filing an application for permanent employment certification. Among other requirements, the employer must have placed a job order with the SWA serving the area of intended employment. Furthermore, the employer must attest that the offered wage equals or exceeds the prevailing wage. In the instant case, the job order placed with the SWA states a wage range, the lower end of the wage range being $1.04 less per hour than the SWA’s prevailing wage determination. An employer can use a wage range in its printed recruitment efforts and in its notice of filing; however, the bottom of the range can be no less than the prevailing wage rate. BALCA stated that although the PERM regulations do not expressly state that the SWA job order must not state a wage lower than the PWD, the regulatory requirement that an employer attest to offering at least the prevailing wage and the statutory requirement that an employer pay 100% of the prevailing wage make it clear that the DOL will permit the use of wage ranges in recruitment only when the lower end of the range exceeds the prevailing wage rate.