Articles Posted in PERM – Labor Certification

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 “Team Lead/Software Engineer.”

The Application was accepted by the CO on September 6, 2007. The Employer indicated on ETA Form 9089 a prevailing wage of $81,349 issued by the State Workforce Agency (SWA) with a determination date of July 15, 2007 to June 1, 2008. An Audit Notification was issued requesting either a copy of the original Prevailing Wage Determination (PWD) from the SWA or a copy of the request for the PWD. The response to the audit by the Employer contained a so-called duplicate copy of the PWD because the original was lost. The so-called duplicate copy of the PWD had a wage of $89,544 with a determination date from October 30, 2007 to June 30, 2008. The CO denied certification on April 9, 2009 citing a violation of 20 C.F.R. § 656.10(c)(1).The Employer argued the offered wage to the alien did in fact surpass that of the so-called duplicate PWD and the lost original PWD. The case was forwarded to BALCA by the CO on February 4, 2010. In the instant case, BALCA agreed that the CO was correct in denying certification based on the fact that the PWD submitted in response to the audit notification was entirely different than the one attested to on ETA Form 9089.

PERM regulations 20 C.F.R. § 656.10(f), 20 C.F.R. § 656.40(a), and 20 C.F.R. § 656.41(a) control and provide that when filing for an application for permanent alien labor certification, all documentation attested on the application must be kept for at least five years. Additionally, a PWD must be requested from the appropriate SWA and an employer who wishes to review a PWD must make the request within 30 days of its issuance. Here, the Employer submitted an entirely different PWD, with a new monetary amount and a new determination period in response to the audit; information not initially provided on ETA Form 9089.

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.

Question #1 – Temporary Work Visa – H-1B Nonimmigrant Visa

Is the H-1B FY2011 CAP still open?

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.

Question #1 – Temporary Work Visa – H-1B Nonimmigrant Visa

Is the H1B CAP still available?

MVP “Q & A Forum” – This Friday, January 7th, 2011

We wanted to find a new way to engage our reader base. Every other Friday, we will post the ten (10) best/most frequently asked questions received during the week from our h1bvisalawyerblog, Facebook, and Twitter readers. We will answer those questions and provide the Q&A on our H-1B Visa Lawyer Blog.

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, AZ SB1070, priority dates, or the debate focused on Ending Birthright Citizenship, please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

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 “Computer Software Engineer.”

The Employer’s Labor Application was accepted by the CO on July 26, 2007, where the prevailing wage was indicated as $50.88 per hour. The Employer also gave evidence of posting for the position on a job search website from February 4, 2007 to February 21, 2007. An audit was issued on September 19, 2007 by the CO requesting additional recruitment documentation. The Employer submitted evidence of its ad posting on monster.com for 17 days, which listed the salary as 50 to 70 dollars per year. Since the wage listed on the ad was lower than that listed on the prevailing wage document, the CO denied certification. On December 12, 2007, the Employer asked for a re-evaluation citing the fact that they submitted the wrong job advertisement, the correct one was an ad placed on NJ.com. On the NJ.com advertisement for the job there was no indication of wage. Again the CO denied certification citing 20 C.F.R. § 656.24(g) which states a review can only include documentation requested from a CO or documentation that that Employer originally did not have the opportunity to present.

PERM regulation 20 C.F.R. § 656.24(g)(2) controls and it provides a request for reconsideration may only include “documentation actually received from the employer in response to a request from the CO” or “documentation that the employer did not previously have the opportunity to present to the CO.”

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

The CO accepted the Employer’s Application for Permanent Employment Certification which stated the job required a bachelor’s degree in Pharmacy and a “Valid Florida Pharmacist license or ability to obtain a license” for processing on December 31, 2009. To show fulfillment of the advertising and recruitment requirements, the Employer gave evidence of postings in two papers. Citing the ad print in Pharmacy Today, a professional journal, the CO said it did not qualify as the required second advertisement because the job listed didn’t require experience or an advance degree and therefore denied certification. After the Employer reviewed the denial letter from the CO, the Employer asked that the advertisement in Pharmacy Today be allowed in light of the fact that the standards for the job were changed to 6 years in the PharmD program as well as experience in the field. Further, the Employer argued that advertising in that journal offered a larger pool of more highly skilled applicants needed for the job and that finding a qualified person for the job is highly difficult. In the appeal, the CO stuck to the denial of the application stating that even though Pharmacy job requirements have increased, CVS is not asking for someone with those requirements to fill the job. On the other hand in the appeal, the employer argues it only advertised that the job required a bachelor’s degree in order to “recruit based on the largest applicant pool,” which would include those individuals who were not affected by the increase in requirements in 2000 because of a grandfather clause. The Employer goes on to argue that states have different licensure standards for pharmacists before that licensure can be awarded.

PERM regulation 20 C.F.R. 656.17(e)(l)(i)(B)(4) controls and it provides that an employer may advertise in a professional journal in place of a Sunday advertisement if the job in question requires “experience and an advanced degree.”

The Board of Alien Labor Certification Appeals (BALCA) recently granted an Employer reconsideration for a case in which the CO originally denied labor certification (LC) for an alien worker for the position of “Care Taker-Ranch Hand.”

After the Employer filed an LC on June 5, 2009 on behalf of an alien worker, the CO denied certification on February 23, 2010 citing that section M-1, which asks whether the form was completed by the employer, was incomplete. If an individual answers “no” then they must fill out Section M-2 to M-5 which ask questions on whether the information filled out on the application is true and correct to the best of their knowledge. Though neither “yes” nor “no” was checked in Section M-1, at the bottom of Section M-2 to M-5 the Customer Service Coordinator, Collette Reed, signed her name indicating that she prepared the documents. During a request for review on March 18, 2010 the Employer stated the failure to check “yes” or “no” in Section M-1 was a accidental error and submitted a completed form. The appeal was forwarded to the Board without review by the CO. The Employer stated during the appeal that they only wanted reconsideration of the case by the CO, not an appeal to the Board. The CO did not specify how he had chosen to handle the Employer’s request for review; the case was forwarded to the Board without a ruling. The Board tried to determine whether the CO abused his discretion when deciding not to reconsider the denial of the certification. After evaluating previous cases and precedents, BALCA found the Employment and Training Administration (ETA) failed to, “create a workable system to apply in every situation that can arise during the PERM filing process.”

In the instant case, the Board reviewed the Employer’s original request, “Request for Review of Denial of Form ETA 9098” and found that the Employer specifically meant for the CO to reconsider the decision, it was not intended for BALCA review. Further, the Board found that the CO did abuse his discretion by sending the request for review off to BALCA instead of reviewing it personally.

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.

Question #1 – Temporary Work Visas – H-1B & L1A/L1B Nonimmigrant Visas

Does the new public law apply to transfer and extension petitions for nonimmigrant workers?

MVP “Q & A Forum” – This Friday, December 17th, 2010

We wanted to find a new way to engage our reader base. Every other Friday, we will post the ten (10) best/most frequently asked questions received during the week from our h1bvisalawyerblog, Facebook, and Twitter readers. We will answer those questions and provide the Q&A on our H-1B Visa Lawyer Blog.

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, AZ SB1070, priority dates, or the debate focused on Ending Birthright Citizenship, please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

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 “Controls Engineer.”

The application was accepted on October 2, 2009 and on the application where additional recruitment efforts required were suppose to be reported, the Employer cited the posting on its web site and use of a referral program as well as a private employment firm. The dates listed for posting were “06/26/09 to Ongoing.” The application was denied by the CO citing the Employer failed to fill out a section, rendering the whole application incomplete. The Employer then asked for a review but also wanted the chance to change and correct information on the new application. The revised application stated that the end of the posting on the website and referral program was “07/30/09.” The application was redirected to Appeals where the CO argued under 20 C.F.R. § 656.11(a) that an application revised after July 17, 2007 cannot be accepted.

PERM regulation 20 C.F.R. § 656.17(a) controls and it provides that any incomplete application will be denied. However, the BOARD found that the Employer did not submit an “incomplete” application, the Employer simply did not fill out the section in the format instructed, mm/dd/yyyy. Further, BALCA found that there was no precedent to suggest that filling out “ongoing” in the answer field was incorrect.

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