H1B Visa Lawyer Blog

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 “Maid.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied certification. He cited the Employer’s failure to “make a selection for Section H-1” of the 9089 form as grounds for the denial. The Employer submitted a reconsideration request stating that they had completed Section H-1.

The CO issued “a request for information about the bona fides of the Employer’s business.” In addition, he sent an Audit notification to the company’s attorney. After the deadline had passed to receive the Audit response, the CO affirmed its initial denial of labor certification. The Employer sent a reconsideration request to the CO arguing that it never received the Audit notification or the request for information. In its argument, the Employer sent a letter from their General Manager that stated he had never received a letter. They also provided email documentation from the Atlanta Processing Center which cited the Employer’s attorney’s response to the request for information from a request initially made in 2008. The CO denied reconsideration stating the Audit notification was mailed to the address on record, no change of address was recorded within the file, and the other letters were delivered and responded to with no problem.

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 “Forman.”

Upon evaluating an Employer’s Application for Permanent Labor Certification which provided that the employer was a closely held corporation, partnership, or sole proprietorship in which the alien has an ownership interest, or …there is a familial relationship between the owners, stockholders, partners, corporate officers, incorporators, and the alien, the CO issued a “Request for Additional Information.” In 30 days, he needed the following evidence: (1) Proof of a federal employer identification number; (2) Proof that the company was a business entity; and (3) Proof of the physical location of the company. It appears from the record that most of the information requested by the CO already accompanied the Application.

A few months later, the CO delivered a “Notice of Supervised Recruitment.” The Employer was required, in 30 days, to send a draft job advertisement, corporate financial & structure documentation as well as any family relationship the Alien has to the Employer. In a timely fashion, the Employer responded by providing their business license, operating agreement, IRS FEIN number, organization certificate from the Virginia State Corporation Commission, and a letter from the Company’s owner describing his relationship to the Alien.

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 Vice President, Mergers & Acquisitions.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO informed the Employer that he would need to oversee their PERM recruitment. As part of the process, the CO sent the employer separate instructions for its advertisement and recruitment report. In the instructions for the recruitment report, he requested the Employer to “state the names, addresses and provide resumes (other than those sent to the employer by the CO) of the U.S. workers who applied for the job opportunity.

A few months later, the Employer presented the outcomes of its PERM recruitment in its recruitment report. The Employer indicated they had received 70 applications from U.S. Workers; and 7 applications from non-U.S. workers. Out of the 70 U.S. candidates, only three of the candidates were interviewed for the position. Based on the interviews, the Employer decided none of the applicants were qualified because they lacked the required critical experience and skills. In the recruitment report, the Employer identified the name of each applicant and provided the reason each candidate was disqualified. However, in the actual report, the Employer did not state the addresses of the applicants. In the report, they wrote a note to the CO that specified the following, “The resumes of the applicants who responded directly to JP Morgan Chase are attached to this report. Please note that the resumes, which are part of this recruitment report, include the name and address of each applicant.”