H1B Visa Lawyer Blog

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 “Senior Immigration Paralegal.”

The Employer’s Application was originally accepted by the CO on August 22, 2007 on which the Employer had stated a bachelor’s degree and 60 months of related experience were required for the position. Also indicated were a yearly wage of $70,000 and a prevailing wage of $43,413 per year. An Audit Notification was issued by the CO requesting proof of business necessity as well as a copy of the NOF. The Employer’s response containing the NOF included a prevailing wage determination (PWD) of $43,413 per year, and the response included a statement justifying the business necessity for the stated minimum job requirements. Certification was denied by the CO on January 9, 2009. The wage listed on the NOF was lower than the wage offered to the alien by the Employer. After reviewing the case, the Employer argued that at the time of posting the NOF the alien was being paid a different amount and offered supporting documentation. The case was then forwarded to BALCA by the CO.

PERM regulation 20 C.F.R. §656.17(f)(7) controls and it provides that an advertisement must not contain wages or terms and conditions of employment that are less favorable than those offered to the alien. In the present case, the NOF listed a wage range of $50,000-$65,000 but when the application was filed by the Employer, the alien was being paid $70,000 per year. Therefore, the wage offered to the alien was “$70,000.00.”

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 “Applications Engineer.”

The Employer’s Application was accepted by the CO on October 10, 2007 and listed that the Employer had advertised on its website for the position from May 29, 2007 to July 19, 2007. An Audit Notification was issued by the CO. In the Employer’s response, extensive evidence of the website posting was given. However, the CO denied certification citing the job posting on the website was dated September 24, 2007-outside the date the Employer reported on ETA Form 9089. On, October 15, 2009 the Employer argued for reconsideration because the Vice President submitted an affidavit attesting to the fact that he posted the job opportunity on the website during the dates provided above. The Employer also argued that in light of the fact the date on the website print out was September 24, 2007, the advertisement was posted for at least one day within the 30 days prior to the date the application was submitted. The case was forwarded to BALCA.

PERM regulation 20 C.F.R. § 656.17(e)(1)(ii)(B) controls and it provides that one of the additional recruitment efforts for a professional position can be a website positing which can be documented by providing dated copies of pages from the site that advertise the occupation involved in the application.

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 “Production Planning/Scheduling Manager.”

The Employer listed the offered wage for the position as $67,000 per year and required a Master’s degree in Industrial Engineering plus six months of experience on the Application which was accepted by the CO on July 24, 2007. The CO requested the Employer’s Notice of Filing (NOF) when an Audit Notification was issued. The CO additionally requested that the Employer submit proof of business necessity. The Employer listed on the NOF an annual salary of $66,435 for the position in its response to the Audit Notification. The CO denied labor certification on December 19, 2008. Labor certification was denied because the wage the Employer listed on the NOF was less than yearly wage offered to the alien. The requirements for the position also surpassed the Specific Vocational Preparation (SVP) level assigned by O*Net and the Employer did not provide significant documentation in its response to prove the additional requirements were necessary. After reviewing the denial, the Employer argued the Office of Foreign Labor Certification (OFLC) gave the impression that the NOF didn’t have to include the wage offered to the alien, it was only necessary to include the prevailing wage. The Employer further argued the CO never specifically asked for proof of business necessity and as a result the Employer did not know to submit it. On February 17, 2010 the case was forwarded by the CO to BALCA.

PERM regulation 20 C.F.R. §656.17(f)(7) controls and it provides that when filing an application for permanent labor certification notification the advertisement must not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.

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 “Team Lead/Software Engineer.”

The Application was accepted by the CO on September 6, 2007. The Employer indicated on ETA Form 9089 a prevailing wage of $81,349 issued by the State Workforce Agency (SWA) with a determination date of July 15, 2007 to June 1, 2008. An Audit Notification was issued requesting either a copy of the original Prevailing Wage Determination (PWD) from the SWA or a copy of the request for the PWD. The response to the audit by the Employer contained a so-called duplicate copy of the PWD because the original was lost. The so-called duplicate copy of the PWD had a wage of $89,544 with a determination date from October 30, 2007 to June 30, 2008. The CO denied certification on April 9, 2009 citing a violation of 20 C.F.R. § 656.10(c)(1).The Employer argued the offered wage to the alien did in fact surpass that of the so-called duplicate PWD and the lost original PWD. The case was forwarded to BALCA by the CO on February 4, 2010. In the instant case, BALCA agreed that the CO was correct in denying certification based on the fact that the PWD submitted in response to the audit notification was entirely different than the one attested to on ETA Form 9089.

PERM regulations 20 C.F.R. § 656.10(f), 20 C.F.R. § 656.40(a), and 20 C.F.R. § 656.41(a) control and provide that when filing for an application for permanent alien labor certification, all documentation attested on the application must be kept for at least five years. Additionally, a PWD must be requested from the appropriate SWA and an employer who wishes to review a PWD must make the request within 30 days of its issuance. Here, the Employer submitted an entirely different PWD, with a new monetary amount and a new determination period in response to the audit; information not initially provided on ETA Form 9089.