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 (LC) for an alien worker for the position of “Purchasing Manager.”

The CO originally denied the application on the grounds that the Employer failed to provide evidence of its State Workforce Agency (SWA) job posting subsequent to an audit. The Employer stated that a screenshot of the Oklahoma Job Link Website was in fact submitted. The request for review was sent to the Appeals Board by the CO. In an appellate brief, the Employer continued to argue that the SWA job posting was included in the original audit while the CO stood by its original position that it was not.

Accordingly, the BOARD reversed the decision of the CO, finding that the Employers SWA job posting was clearly included in the audit response. The application was sent back to the CO for issuance of a 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 “Chef.”

The applicants’ Employer Application for Permanent Employment Certification was originally accepted by the CO on December 1, 2006 but the application was then denied on December 14 due to the fact that alien did not meet the minimum education, training and experience requirements. The CO issued an audit notification and request for Notice of Filing (NOF) on January 15, 2009 after the Employer asked for a review of the case. On February 11, 2009 the alien’s employer provided all of the information that was questioned in the initial denial as well as the NOF which stated the position was posted from September 1 to September 13. The CO again denied the application on March 16 citing that neither the Employer’s name nor sufficient contact information was provided in the posting. Even though the Employer asked for reconsideration and provided evidence that the posting was sufficient, the CO stuck by the denial. The CO’s main reason for denial was that even though the NOF contained the name and title of the Employer, the information was only added after the initial posting. In the appellate brief filed, the CO reiterated the fact that the information was added to the document after it had already been posted. The CO also mentioned the ambiguity in regards to how many companies resided at that location.

PERM Regulation 20 C.F.R. § 656.10(d) controls and provides that the Employer give notice of filing of the Employer Application for Permanent Employment Certification and that the posting must contain the required information. It is the employer’s responsibility to submit thorough documentation, interpret requests broadly and to be confident that the documentation submitted will support the application. In this case, the Employer’s application did not contain the business name on the NOF and the NOF did not the fully meet all requirements.

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

The CO originally denied certification on May 5, 2008 because the sponsorship of the immigrant worker could not be verified by the Employer. On June 2, 2008, reconsideration was requested by the Employer due to the fact that the immigrant worker’s contact individual had recently stopped working for the restaurant. An Audit Notification was filed by the CO on December 23, 2009 requesting the Employer to provide its Notice of Filing and recruitment documents as well as present evidence to justify the foreign language requirement. Certification was denied by the CO on February 9, 2010 on the grounds that the Notice of Filing was “posted for fewer than 10 consecutive business days.” The Employer submitted another request for reconsideration, citing that the restaurant is in fact open seven days a week, making the dates supplied (May 14, 2007 to May 24, 2007) sufficient enough for a Notice of Filing posting requirement. Even though the Employer gave evidence that Saturdays and Sundays are the busiest days at the restaurant and that there is a need for employees on those days, the CO still denied labor certification stating business days are only defined by Monday through Friday, excluding federal holidays and weekends.

PERM regulations 20 C.F.R. § 656.10(d) controls and its provides the posting of a Notice of Filing by an Employer must be posted “for at least 10 consecutive business days” but does not specify what determines a business day. The CO denied certification based on the fact the Notice of Filing was not posted for at least 10 business days but the Employer provided evidence that the restaurant operated on Saturdays and Sundays, therefore requesting weekends be considered business days. BALCA disagreed with the CO saying business days are not confined to Monday through Friday. The Employers requirement was fulfilled because the Notice of Filing was posted for 10 consecutive days when “employees [were] on the worksite.” BALCA is giving the Employer another opportunity to demonstrate its Notice of Filing requirement due to the fact that the restaurant is open on the weekends.