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 “Software Engineer.”
The Employer was issued an Audit Notification by the CO who requested additional documentation of recruitment as well as its ability to pay foreign workers the wage offered. The evidence requested included state payroll taxes for the last three years, federal income taxes statements for the last three years, list of current employees with their titles, work contracts, etc. The Employer responded to the audit; however the CO denied certification on the grounds that the Employer submitted no documentation to prove the ability to pay the $48, 200 per year offered to the foreign workers. Review was requested by the Employer who argued that because it’s a consulting company the amount of money available depends on the funds generated by clients. Even after the letter of reconsideration, the CO still found that the Employer did not sufficiently prove its ability to pay the wage offered to the foreign worker. The CO cited that the Employer’s 2007 tax return was only $9,855 after operating costs. BALCA issued a Notice of Docketing and the CO’s appellate brief provided evidence to show that the Employer did not “have sufficient funds to pay the wage offered to the Alien.”
PERM regulation 20 C.F.R. § 656.10(c)(3) controls and it provides that one part of the labor certification process is that the Employer must sufficiently prove the ability to pay the salary offered to the alien.