H1B Visa Lawyer Blog

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Hardwood Floor Installer.”

Upon evaluating the Employer’s Application for Permanent Labor Certification, an Audit was issued. In this Audit Notification, the CO asked the Employer to explain why US workers were rejected. After reviewing the Audit response, the CO denied the labor certification stating the Employer rejected three US applicants for reasons that were not job related. The CO “found the rejections were based on the failure to meet the Employer’s job requirement of having two years of hardwood floor installation experience.” He discovered three of the candidates have other experience in the construction industry that he believed would meet the requirements for the job.

The Employer requested reconsideration and BALCA review. They argued the CO was wrong in judging these three candidates were qualified for the position. Even though the applicants did have experience in “general carpentry/and or construction,” they did not believe this experience was enough to meet the requirements of the Hardwood Floor Installer job. The Employer included a Business Necessity Letter in its Audit response materials. The Employer pointed out that one of the candidates did have skills in hard wood flooring installation but he did not list how he obtained that experience. The employer also provided proof to the CO of letters that they had sent to the US worker applicants asking for them to contact the company with further information on their qualifications. The Employer claimed none of them responded to the letters.

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Electrical Helper.”

Procedural Case History – Case was originally accepted by DOL on December 3, 2007. June 11, 2008 CO denied certification. Appeal File was sent to BALCA on April 30, 2010. On April 21, 2011, BALCA vacated the denial and remanded for further processing. This labor application was for a nonprofessional position.

The Atlanta National Processing Center issued a letter directing the employer to provide evidence that it was a bona fide business entity. Additionally, the CO issued an Audit notification in June 2011. The CO asked the employer for copies of the newspaper tear sheets from its Sunday newspaper advertisements. The CO gave the Employer a one month deadline to submit its response. The Employer provided its response as well as a note asking for a 30 day extension on the tear sheets. The employer’s lawyer stated they had requested it but had not received it at the time of mailing the response.