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 “Accountants and Auditors.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. Once the Employer responded, the CO denied certification of the application for multiple reasons. First and foremost, the job description listed in its recruitment advertising did not match the one listed on the Employer’s ETA Form 9089 in violation of PERM Regulations 20 C.F.R. § 656.10 and 656.17 (f)(3). These regulations require that an advertisement “provide a description of the vacancy specific enough to apprise a US worker of the job opportunity for which certification is sought.” The CO also cited the employer’s website advertising neglected to mention travel requirements that were listed on its ETA Form 9089. On the Employer’s ETA Form, it specified, “various unanticipated Deloitte locations and client sites nationally.”

The Employer sent a reconsideration request to the CO. In its argument, the Employer stated the U.S. Department of Labor (DOL) made a mistake in its ruling. The CO delivered a second denial and forwarded the case to the BALCA for review.

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 “Instructional Coordinator.”

After reviewing an Employer’s Application for Permanent Labor Certification, the CO denied the application, without audit or a request for additional information, stating that the position did not qualify as a college or university teacher. The CO considered the Instructional Coordinator position as a professional occupation for which the Employer was required to conduct additional mandatory recruitment efforts.

The Employer sent a reconsideration request to the CO. In its argument, the Employer reaffirmed that the position was a university instructor. They submitted additional documentation to support their claim. They provided a detailed description of the position covering the job duties and experience qualifications. This description mentioned “effective teaching in the library instruction program.” The second piece of evidence included a memorandum from the Dean of the University Libraries. In his memorandum, the Dean summarized the Applicant’s position as a Faculty Member in the Division of Library Services, discussed the Applicant’s responsibilities as an Assistant Professor and referred to the Applicant as “an excellent classroom teacher providing effective, creative and critical learning experiences for our students.”

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 “Medical & Clinical Laboratory Technologist”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification demanding the employee’s work credentials. The Employer sent the worker’s qualifications including prior work experience from his former employer to the CO for review.

Upon review of the Audit response, the CO denied the Labor Certification Application. The CO believed the credentials recorded on the application did not match the position’s minimum job requirements. The Employer sent a reconsideration request to the CO. In the argument, the Employer stated that the employee had the required two years of previous work experience, and included again for the record, documentation of the beneficiary’s previous work experience. Additionally, since the company opened in 1998, they had not hired anyone with less than two years’ experience for this position.