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 “Computer Systems Analyst.”

The CO denied the application stating that the journal used to advertise the position was not a recognized journal on websites and does not qualify as a professional journal. The Employer accordingly made a request for review of the denial stating that it fulfilled its obligation to advertise as indicated in the regulations and that the magazine, Computer, is a recognized professional journal. In its request for review the Employer included six pages of information from the IEEE website, which states that “for more than 40 years, developers, researchers, and managers have relied upon Computer for timely, peer-reviewed information about research, trends, best practices, and changes in the profession.” The CO forwarded the case directly to BALCA as a request for reconsideration was not made by the Employer.

PERM regulations 20 C.F.R. § 656.17(e)(1)(i)(B) and 656.17(e)(2)(ii) control and provide: sponsoring employers are normally required to attest to having placed two print advertisements on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the worker likely to apply for the job opportunity. However, an exception under 20 CFR § 656.17(e)(1)(B)(4) provides that if the job requires experience and an advanced degree and a professional journal would normally be used to advertise the job opportunity, the employer may substitute one of the Sunday advertisements for an ad in the professional journal most likely to bring responses from able, willing, qualified and available U.S. workers.

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 “Electrical Helper.”

A selection was not made for Section M-1, which concerns whether or not the application was completed by the Employer. The CO denied certification citing the omission of a response for Section M-1. The Employer requested reconsideration or review of the denial and submitted an amended form. The CO did not reconsider its decision and the case was forwarded to BALCA on April 30, 2010.

PERM regulation 20 C.F.R. § 656.17(a) provides that incomplete applications will be denied. Further PERM regulation 20 C.F.R. § 656.11(b) provides that once an application is filed, requests for modifications to the application will not be accepted.

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 “Programmer Analyst.”

The Employer listed the minimum requirements as a Bachelors degree plus 5 years of experience in the position offered, or in the alternative, a Masters degree plus 1 year of experience in the job offered. The prevailing wage for the position listed in the application was $34.67 per hour. After receiving the Employer’s Application, the CO issued an Audit Notification. The CO denied certification citing that the PWD listed on the application was different from that provided in the Audit response. The audit response provided a PWD of $46.16 per hour. The Employer requested reconsideration and provided the PWD consistent with the wage listed on the labor application. The $34.67 per hour wage was based upon a separate PWD containing the primary requirements of Bachelors degree plus 5 years experience; and the $46.16 per hour wage was based upon another PWD containing the alternative requirements of a Masters degree plus 1 year experience. The CO denied reconsideration providing that the PWD submitted in the audit response did not match the prevailing wage listed in the labor application. The case was forwarded to BALCA and the Employer filed a State of Intent to Proceed on August 3, 2010.

PERM regulation 20 C.F.R. § 656.1(a)(2) controls and provides that labor certification can only be granted if the employment of the foreign worker will not adversely affect the wages and working conditions of U.S. workers who are similarly employed.