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 “Operating Engineer.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied certification of the application because the Employer had placed their State Workforce Agency (SWA) job order more than 180 days prior to the filing of their ETA Form 9089.

The Employer sent a reconsideration request to the CO arguing that “the 180 day period should be calculated based on the end date of the SWA, rather than the date it commenced.” To interpret the regulations otherwise would penalize employers who wanted to run their SWA’s for longer than 180 days. The CO did reconsider but afterwards, he confirmed the denial. Not happy with the outcome, the Employer appealed the decision to BALCA and restated its argument.

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 “Computer SW Engineers, Applications.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. He requested the Employer provide its recruitment documentation and a copy of its Prevailing Wage Determination (PWD). The Employer responded and the CO denied certification on two grounds. First, the wage offered in the Notice of Filing and job order was lower than the PWD. The Employer offered $59,467 and the PWD was $59.467.20. In addition, the CO stated the Employer failed to make available copies of employer notices on its employee referral program with incentives.

The Employer sent a reconsideration request to the CO arguing the 0.0003% discrepancy should not cause their labor application to be denied. They indicated their use of “the Department of Foreign Labor’s Foreign Labor Certification (FLC) Data Center Online Wage Library to determine the appropriate annual wage.” The Employer also stated that it had provided a flier of its Employee Referral Program as well as data in its Recruitment Report about the program. Despite the Employer’s claims, the CO delivered a second denial and forwarded the case to BALCA for assessment.