Articles Posted in PERM – Labor Certification

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Employer asserted that there was no time to reply to the original denial letter and argued that the denial should be rescinded so that there was an opportunity to present evidence.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.”

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 “Applications Engineer.”

The Employer’s Application was accepted by the CO on October 10, 2007 and listed that the Employer had advertised on its website for the position from May 29, 2007 to July 19, 2007. An Audit Notification was issued by the CO. In the Employer’s response, extensive evidence of the website posting was given. However, the CO denied certification citing the job posting on the website was dated September 24, 2007-outside the date the Employer reported on ETA Form 9089. On, October 15, 2009 the Employer argued for reconsideration because the Vice President submitted an affidavit attesting to the fact that he posted the job opportunity on the website during the dates provided above. The Employer also argued that in light of the fact the date on the website print out was September 24, 2007, the advertisement was posted for at least one day within the 30 days prior to the date the application was submitted. The case was forwarded to BALCA.

PERM regulation 20 C.F.R. § 656.17(e)(1)(ii)(B) controls and it provides that one of the additional recruitment efforts for a professional position can be a website positing which can be documented by providing dated copies of pages from the site that advertise the occupation involved in the application.

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 “Production Planning/Scheduling Manager.”

The Employer listed the offered wage for the position as $67,000 per year and required a Master’s degree in Industrial Engineering plus six months of experience on the Application which was accepted by the CO on July 24, 2007. The CO requested the Employer’s Notice of Filing (NOF) when an Audit Notification was issued. The CO additionally requested that the Employer submit proof of business necessity. The Employer listed on the NOF an annual salary of $66,435 for the position in its response to the Audit Notification. The CO denied labor certification on December 19, 2008. Labor certification was denied because the wage the Employer listed on the NOF was less than yearly wage offered to the alien. The requirements for the position also surpassed the Specific Vocational Preparation (SVP) level assigned by O*Net and the Employer did not provide significant documentation in its response to prove the additional requirements were necessary. After reviewing the denial, the Employer argued the Office of Foreign Labor Certification (OFLC) gave the impression that the NOF didn’t have to include the wage offered to the alien, it was only necessary to include the prevailing wage. The Employer further argued the CO never specifically asked for proof of business necessity and as a result the Employer did not know to submit it. On February 17, 2010 the case was forwarded by the CO to BALCA.

PERM regulation 20 C.F.R. §656.17(f)(7) controls and it provides that when filing an application for permanent labor certification notification the advertisement must not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.