Articles Posted in Immigration News

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 Software Engineer.”

On the Employer’s Application for Permanent Employment Certification, three additional types of recruitment were listed because the job advertised was a professional position. An Audit Notification was issued by the CO on October 5, 2007 requesting documentation on the Employer’s additional recruitment steps which included: listing the job on a job search website, using the employee referral program and listing the job with a private employment firm. The Employer responded to the Audit Notification on October 19, 2007 and submitted documentation which included: a copy of ETA Form 9098, a letter from HR stating the need for the job’s requirements, the posting of the available notice for the job (dated May 21, 2007 to June 1, 2007), the recruitment report, prevailing wage determination, copies of additional postings, list of recruitment agencies used, and a copy of the employee referral program. Certification was denied on February 11, 2008 by the CO who cited failure to provide, “adequate documentation of additional recruitment steps for professional occupations” as the reason for denial. The CO went on to say the Employer lacked evidence to support the company listing minimum requirements for the job that exceeded the SVP level as well as failed to demonstrate the recruitment efforts by the private employment firms. The Employer submitted a request for review on February 29, 2008 arguing the previous evidence submitted was adequate. Following the Employer’s request for review, the CO still denied certification. The CO accepted the Employer’s argument and additional documentation concerning the business necessity but did not accept the evidence to support the recruitment efforts by private employment firms. The case was then forwarded to BALCA and a Notice of Docketing was issued on October 8, 2009. In a Statement of Position, the CO defended the denial of certification, arguing sufficient documentation was not provided by the Employer to show individuals were given the opportunity to apply for the position or, “that any recruitment was done in a timely manner.”

PERM regulation 20 C.F.R. § 656.17(e)(1)(ii)(F) controls and it provides that an employer may consult private employment firms as one of their additional recruitment steps for a professional position. The regulation also stipulates documentation must be provided that is “sufficient to demonstrate that recruitment has been conducted by a private firm for the occupation for which certification is sought.”

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 “Cook.”

After accepting an application for Permanent Employment Certification on August 28, 2007, the CO issued a denial of the application citing nine different reasons. The Employer requested review of the case on September 14, 2007 and argued that although portions of the application had been “mistakenly overlooked,” he had complied with all the regulations. The letter of request for review from the Employer did not satisfy the CO and the case was forwarded to BALCA on January 6, 2010. The official denial from the CO stated the application was denied on the grounds that the alien did not sign Section L-2 of ETA Form 9098 and the offered wage was lower than the prevailing wage noted on ETA Form 9098. Following a Notice of Docketing issued by BALCA, the Employer filed an appellate brief arguing that they were unable to submit ETA 9098 with the alien’s signature because the alien lives in a remote area of Kosovo with limited mail service. Additionally, the Employer noted in the brief that the higher end of the salary range offered does coincide with the prevailing wage determination listed on ETA Form 9098.

PERM regulation 20 C.F.R. § 656.17(a) controls and it provides that it is the Employer’s responsibility when applying for labor certification on behalf of an alien to submit a fully completed ETA Form 9098 which includes signatures from the employer, alien, and attorney/agent.