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 (LC) for an alien worker for the nonprofessional position of “Drywall taper.”

The employer filed a LC which was mailed on September 20, 2006 and accepted for processing on September 22, 2006. ETA Form 9089 indicated that the State Workforce Agency (SWA) job order was run from March 22, 2006 through March 26, 2006. The CO issued a denial letter on July 5, 2007 on the basis that the job order was completed more than 180 days prior to the submission of the labor application.

PERM Regulation 20 C.F.R. § 656.17(e)(2) controls and it provides that if the application is for a nonprofessional occupation, the employer must place a job order no more than 180 days before the filing of the application. Furthermore, the filing date for a mailed application is the date the CO stamps it as received, not the postmark date. In the instant case, the SWA job order was placed 184 days prior to the CO’s date stamp. Even if the date was calculated from when the employer shipped the application, the SWA job order was still untimely.

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Electrical Helper.

The employer filed a LC on behalf of an alien worker and in November of 2007, the CO denied the application because he was unable to verify the Employer as a bona fide business entity. The Employer requested reconsideration by submitting its 2006 Federal Corporate Tax Return, its Business Certificate Registration and two utility bills. The Federal Employer Identification Number (FEIN) provided on the 2006 Tax Return only matched the first two digits of the FEIN previously provided on Form ETA 9089. Furthermore, the utility bills and the tax return provided a different address from that on the Business Certificate Registration. Thereafter, the CO issued a letter denying reconsideration because the FEIN on the corporate tax return did not match the FEIN on ETA Form 9089. The CO then forwarded the case to BALCA. The Employer filed a letter stating that its company had two addresses, one for its motor shop and the other for its main office, the CO did not file an appellate brief with the Board.

Upon BALCA review, it was determined that the requirement in ETA Form 9089 requiring submission of a FEIN was fully supported by the regulations and by policy of using the FEIN as a means of verifying whether an employer is a bona fide business entity. An employer MUST possess a valid FEIN when applying for labor certification pursuant to PERM regulation 20 C.F.R. § 656.3. In the present case, there was a discrepancy in the FEIN provided in ETA Form 9089 and in the 2006 tax return; however, the Employer failed to explain the discrepancy.