Set Text Size:

S

S

S

2011

  • BALCA Rejects CO’s Strict Specifications for Ad Copies(92 KB - 12/28/2011)
    BALCA rejected the CO’s argument that copies of newspaper ads must show the ad content and date without the newspaper being folded over and found that the copies submitted with proof of publication were sufficient. (Matter of Tri Valley Golden Care, 12/27/11). AILA Doc. No. 11122842.
    AILA Doc. No. 11122842.
  • BALCA on Text of Radio Advertisements(86 KB - 12/28/2011)
    BALCA found no support for the proposition that “a copy of the employer’s text” for a radio advertisement under 20 CFR §656.17(e)(1)(ii)(J) must be written and concluded that that an audio recording of the ad was sufficient. (Matter of Nine Muses and Apollo, 12/27/11). AILA Doc. No. 11122845.
    AILA Doc. No. 11122845.
  • BALCA Upholds CO’s Denial, Discusses Professional vs. Skilled(116 KB - 12/28/2011)
    BALCA found that although the employer did not intend to seek certification for a professional position, where the PWD indicates a professional position, the employer must proceed under the professional recruitment standard. (Matter of Atlantic Landscape, 12/27/11). AILA Doc. No. 11122847.
    AILA Doc. No. 11122847.
  • BALCA Vacates Denial, Cites Impact of H-2B Prevailing Wage Delay(90 KB - 12/16/2011)
    BALCA found the employer’s noncompliance with 20 CFR §655.10(a)(2) justifiable where the employer waited more than 30 days after submitting its PWD request to file the H-2B and the offered wage exceeded the PWD that was issued. (Matter of Stan Sweeney, 11/30/11). AILA Doc. No. 11121648.
    AILA Doc. No. 11121648.
  • BALCA Excuses Noncompliance with §655.10(a)(2) Due to H-2B PWD Delay(99 KB - 12/16/2011)
    BALCA vacated the denial where the employer made every effort to comply with §655.10(a)(2) but was simply unable to file its application in time for its season as a result of the NPWC’s delay in issuing the PWD. (Matter of Gulf Coast Crawfishing Supply, 12/1/11). AILA Doc. No. 11121649.
    AILA Doc. No. 11121649.
  • BALCA Reverses Denial, Finding 3 out of 4 Recruitment Steps in Compliance(88 KB - 12/13/2011)
    BALCA held that the employer need not rely on its website ad that did not comply with the regulations where it conducted three additional recruitment steps that were in compliance with the regulations for professional recruitment. (Matter of Enerdel, Inc., 12/12/11) AILA Doc. No. 11121361.
    AILA Doc. No. 11121361.
  • BALCA Finds Employer Properly Documented ERP as a Recruitment Method(136 KB - 12/13/2011)
    Noting the ambiguity in DOL’s reason for denying the petition, BALCA found the employer’s documentation sufficient to establish that it used its employee referral program as a method of recruiting U.S. workers under the three-prong Sanmina-Sci test. (Matter of Bamm, Inc., 12/13/11)
    AILA Doc. No. 11121359.
  • BALCA En Banc Panel Resolves Split on 20 CFR §656.40(c)(170 KB - 12/2/2011)
    The en banc panel affirmed the CO’s denial finding that the term “begin the recruitment” in 20 CFR 656.40(c) refers to the commencement of the first recruitment step, not to the commencement of any individual recruitment step. (Matter of Karl Storz Endoscopy, 12/1/11) AILA Doc. No. 11120264.
    AILA Doc. No. 11120264.
  • BALCA En Banc Panel on “Permanent Employment” of Medical(529 KB - 11/22/2011)
    Finding medical residencies to be generally limited in time and not permanent, BALCA remanded to permit the employers to demonstrate that each job otherwise fits the definition of permanent. (Matters of Albert Einstein Med. Ctr. and Abington Mem. Hosp., 11/21/11) AILA Doc. No. 11112265.
    AILA Doc. No. 11112265.
  • BALCA Reverses PWD, Discusses “Affiliated Nonprofit Entity” under ACWIA(151 KB - 11/16/2011)
    BALCA reversed the PWD and remanded for an ACWIA wage finding the employer is an affiliated or related nonprofit entity under 20 CFR §656.40(e)(1)(ii) because it is attached to Harvard Medical School as a member hospital. (Matter of Children’s Hosp., 11/15/11) AILA Doc. No. 11111665.
    AILA Doc. No. 11111665.
  • BALCA Finds CO’s Claim that ETA 9089 was Incomplete Untenable(94 KB - 11/14/2011)
    BALCA rejected the CO’s claim that the application was incomplete, and therefore deniable under 20 CFR 656.17(a), because the area codes listed did not match the location of the employer’s office and the alien’s home. (Matter of Digiblitz Technologies, 11/10/11) AILA Doc. No. 11111462.
    AILA Doc. No. 11111462.
  • BALCA on Submission of Prevailing Wage Documentation(610 KB - 11/10/2011)
    In a case governed by the pre-January 1, 2009 prevailing wage rules, the employer’s omission of the PWD request, when it had submitted the PWD itself was sufficient, and the CO’s denial under 20 CFR §656.20(b) was reversed. (Matter of Schnabel Engineering, 11/9/11). AILA Doc. No. 11111049.
    AILA Doc. No. 11111049.
  • BALCA Discusses Advertisements Placed by Private Employment Firms(138 KB - 10/26/2011)
    BALCA held that where an ad placed by a private employment firm does not contain the content required by §656.17(f), it must be determined whether the omission contravenes the employer’s duty to recruit U.S. workers in good faith. (Matter of HB Solomon, 10/25/11) AILA Doc. No. 11102761.
    AILA Doc. No. 11102761.
  • BALCA Discusses “Terms and Conditions” of Employment for Recruitment Purposes(94 KB - 9/29/2011)
    Noting that the regulations do not require ads to include wages or benefits, BALCA held that the failure of the employer to list the optional benefit of faculty housing in its recruitment did not violate 20 CFR §656.17(f)(7). (Matter of Emma Willard School, 9/28/11) AILA Doc. No. 11092935.
    AILA Doc. No. 11092935.
  • BALCA on Verification of Sponsorship: Finds DOL Inconsistencies Problematic(102 KB - 8/29/2011)
    BALCA found that where the employer mails the ETA 9089, the signed statement under penalty of perjury certifying to conditions of employment by itself places the employer in full compliance with 20 CFR §656.10(c). (Matter of Pickering Valley Contractors, 8/23/11) AILA Doc. No. 11082962.
    AILA Doc. No. 11082962.
  • BALCA Says CO Should Have Considered whether Missing Document was Mere Oversight(112 KB - 8/29/2011)
    BALCA found that where a page of the employee referral program was included in the documents provided to Employer’s counsel and was clearly intended to be included in the audit response, denial of certification was not warranted. (Matter of Core Solutions, 8/22/11) AILA Doc. No. 11082961.
    AILA Doc. No. 11082961.
  • BALCA Vacates Denial; Finds Omission on ETA 9089 Harmless(91 KB - 8/29/2011)
    BALCA held that where the employer failed to check the box in Section J-23 indicating that the beneficiary was employed with the employer, but the answer was provided in Sections K-6 and L-7, the error was harmless. (Matter of Nathan Littauer Hospital, 8/16/11) AILA Doc. No. 11082960.
    AILA Doc. No. 11082960.
  • BALCA Says Travel Requirement Is Substantive and Must be Noted on the ETA 9089(154 KB - 8/25/2011)
    BALCA found that travel is a substantive requirement that must be explicitly noted on the ETA 9089 and the employer’s notation under Section H Item 11 that “international work experience” was required was insufficient. (Matter of American Express TRS, 8/25/11).
    AILA Doc. No. 11082535.
  • BALCA Permits Electronic Journal Ad in Special Handling Case(125 KB - 7/21/2011)
    In cases involving special recruitment for university teachers, 20 CFR §656.18(b), BALCA rejected the DOL FAQ that requires print journal ads and found that an ad in a journal that only offered electronic publication was acceptable. (Matter of Univ. of Texas, 7/20/11) AILA Doc. No. 11072168.
    AILA Doc. No. 11072168.
  • BALCA Says CO Erred in Finding University Did Not Meet the Definition of “Employer”(93 KB - 6/23/2011)
    BALCA held that the CO’s finding that the employer did not have a physical location but rather only a P.O. box was clearly erroneous where Section H-1 included a mailbox number located at a building on the university campus. (Matter of Tarleton State Univ., 6/20/11) AILA Doc. No. 11062367.
    AILA Doc. No. 11062367.
  • BALCA Remands to Allow Employer to Submit Evidence of Job Requirements(93 KB - 6/23/2011)
    BALCA found that the CO abused his discretion in treating the request for reconsideration as a request for BALCA review, thus precluding the employer from presenting evidence that the job requirements are normal to the occupation. (Matter of RMS Computer, 6/16/11) AILA Doc. No. 11062365.
    AILA Doc. No. 11062365.
  • BALCA Vacates Denial, Discusses Timing of Recruitment in Relation to PWD(92 KB - 6/9/2011)
    The court held that 20 CFR 656.40(c) does not require that the employer’s first recruitment step begin during the validity period of the prevailing wage determination, only that some recruitment step be initiated during that time. (Matter of Horizon Computer, 5/25/11) AILA Doc. No. 11060962.
    AILA Doc. No. 11060962.
  • BALCA Vacates Denial, Finds ERP Documentation Sufficient(129 KB - 5/25/2011)
    BALCA noted that the inclusion of a statement on the Notice of Filing, as supported by the director’s statement, that the position was eligible for an ERP bonus, was sufficient to establish that the ERP was in effect during the recruitment period. (Matter of Studio Maestro, 5/25/11)
    AILA Doc. No. 11052559.
  • BALCA Remands, Finds Employer’s Failure to Include PWD Addendum was Inadvertent(114 KB - 5/16/2011)
    BALCA found that the CO abused his discretion in refusing to consider whether the absence of a prevailing wage addendum was mere oversight as opposed to an inability or refusal to produce the document. (Matter of Washington Hospital Center, 5/13/11) AILA Doc. No. 11051664.
    AILA Doc. No. 11051664.
  • BALCA Finds Employer’s Recruitment Report Insufficient(125 KB - 5/13/2011)
    BALCA found that the employer’s recruitment report merged the reasons for rejecting the two applicants, and while the reasons for rejection may have been lawful, the report did not specify which grounds apply to which candidate. (Matter of Quantifi, Inc., 5/12/11) AILA Doc. No. 11051361.
    AILA Doc. No. 11051361.
  • BALCA Tolls the Filing Period for Requesting Reconsideration(104 KB - 5/11/2011)
    BALCA tolled the filing period for a reconsideration request that was postmarked 86 days after the denial, where the employer never received the denial and the CO failed to present evidence to invoke a presumption of receipt. (Matter of Cumberland Food Mkt., 2/24/11) AILA Doc. No. 11051164.
    AILA Doc. No. 11051164.
  • BALCA on Multiple Prevailing Wage Determinations(97 KB - 4/29/2011)
    BALCA held that where the employer receives more than one prevailing wage determination based on variations of the minimum job requirements (primary and alternative), the employer must abide by the higher wage. (Matter of Take Solutions, 4/28/11) AILA Doc. No. 11042966.
    AILA Doc. No. 11042966.
  • BALCA on Roaming Employees and Proper Filing Location(1948 KB - 4/27/2011)
    BALCA vacated the denial, finding that the employer presented full time, permanent, bona fide job opportunities and that the application listed the proper filing location even though the work site was unanticipated rather than fixed. Matter of Amsol, Inc. (9/3/09). AILA Doc. No. 11042733.
    AILA Doc. No. 11042733.
  • BALCA Affirms Denial, Though CO Was “Arguably Incorrect”(83 KB - 4/25/2011)
    Constrained procedurally by 20 CFR §656.27(c) and unable to consider new evidence submitted by the employer with its request for review, BALCA affirmed the CO’s finding that Computer magazine was not a professional journal. (Matter of Ifuturistics, 4/21/11) AILA Doc. No. 11042543.
    AILA Doc. No. 11042543.
  • BALCA Remands Where Employer’s Only Omission was Failure to Check Box M-1(93 KB - 4/25/2011)
    BALCA remanded the case to the CO for reconsideration where the employer failed to check Box M-1 on the ETA 9089, which asks whether the application was completed by the employer, but provided the preparer’s name and signature. (Matter of Heso Electric, 4/21/11) AILA Doc. No. 11042541.
    AILA Doc. No. 11042541.
  • BALCA Says NOF with Wage Equal to 99.51% of Prevailing Wage Is Insufficient(93 KB - 4/20/2011)
    BALCA refused to apply Superior Landscape to round up the wage on the NOF that was 99.51% of the prevailing wage. ALJ Vittone concurred, but noted that the CO has the discretion to take a reasonable approach in cases like this. (Matter of Baily Int’l., 4/19/11) AILA Doc. No. 11042030.
    AILA Doc. No. 11042030.
  • BALCA Upholds Denial, Finds Recruitment Report Insufficient(94 KB - 4/19/2011)
    BALCA found that where the recruitment report was signed only by the attorney, without indicating that the attorney is an appropriate representative under §656.10(b)(2)(ii), the employer failed to attest to the results of its recruitment. (Matter of Frontline, 4/8/11) AILA Doc. No. 11041943.
    AILA Doc. No. 11041943.
  • BALCA Says Wall Street Journal Is Not a Professional Journal(87 KB - 4/19/2011)
    BALCA upheld the CO’s denial, finding that the Wall Street Journal, an authority on a wide variety of social, current event, and business topics, is a newspaper, not a professional journal for purposes of 20 CFR §656.17(e)(1)(i)(B)(4). (Matter of HSBC, 4/18/11) AILA Doc. No. 11041937.
    AILA Doc. No. 11041937.
  • BALCA Finds No Business Necessity for 2-Year Experience Requirement for Cook(119 KB - 4/18/2011)
    BALCA found the employer’s “self-serving” letter failed to demonstrate that the 2-year experience requirement for the position of restaurant cook arose out of business necessity. Dissenting and concurring opinions included. (Matter of La Cantina Toscana, 4/7/10) AILA Doc. No. 11041833.
    AILA Doc. No. 11041833.
  • BALCA Upholds Denial for Lack of Evidence of Ability to Pay(95 KB - 4/18/2011)
    In a case involving a consulting company where the ability to pay salaries largely depends on the generation of funds by the consultants, BALCA upheld the denial for failure to show sufficient funds to pay the alien’s salary. (Matter of Continental Systems, 4/7/10) AILA Doc. No. 11041831.
    AILA Doc. No. 11041831.
  • BALCA on Alternative Job Requirements(83 KB - 4/4/2011)
    BALCA vacated the denial, where the employee did not meet the minimum requirements of a bachelor’s degree plus 12 months experience, but did meet the alternative requirements of a bachelor’s degree and no experience. (Matter of Enterprise Business Solutions, 3/29/11) AILA Doc. No. 11040467.
    AILA Doc. No. 11040467.
  • BALCA Questions Materiality of Omissions on the PERM Form(90 KB - 4/4/2011)
    BALCA remanded finding that the CO failed to explain why the omission of the preparer’s title, where the preparer’s complete information was elsewhere on the form, and the omission of the skill level in Section F-4, were material (Matter of Shastriji Donuts, 3/29/11) AILA Doc. No. 11040466.
    AILA Doc. No. 11040466.
  • BALCA Says Travel Requirement Can Be Listed under “Job Duties”(106 KB - 3/30/2011)
    BALCA rejected the argument that there is no space on the ETA 9089 to indicate a travel requirement, concluding that the form offers ample space for a description of “job duties” wherein a travel requirement could be listed. (Matter of Technofina, Inc. 3/30/11).
    AILA Doc. No. 11033035.
  • BALCA on Alternative Job Requirements(91 KB - 3/24/2011)
    The Board upheld the CO’s denial, finding the job’s alternative requirements of 17 years of experience was not substantially equivalent to the primary requirements of a Bachelor’s degree plus five years of experience. (Matter of Donna Ricco-FYC Apparel, 3/23/11) AILA Doc. No. 11032468.
    AILA Doc. No. 11032468.
  • BALCA Assesses Feasibility of Training a U.S. Worker(90 KB - 3/14/2011)
    Noting that the alien could train a U.S. worker, BALCA clarified that the regulations require a general showing that it is no longer feasible to train, not that it is no longer feasible for the employer to train. (Matter of Rooted & Grounded Nursery, 3/11/11) AILA Doc. No. 11031465.
    AILA Doc. No. 11031465.
  • BALCA Remands for Materiality Assessment of Section M-1(121 KB - 3/14/2011)
    BALCA found that where the preparer signed and dated the certification block in Section M, remand is warranted for a determination as to why completion of Section M-1 on Form 9089 is material in the review of a mailed-in application. (Matter of Steve’s Bakery, 3/9/11) AILA Doc. No. 11031463.
    AILA Doc. No. 11031463.
  • BALCA Remands, Finds Evidence of FEIN Sufficient(91 KB - 3/10/2011)
    BALCA held that the submission of the employer’s business licenses that list its FEIN and match the number provided on the labor certification was sufficient to establish that the employer is a bona fide entity. (Matter of Michael Gorham Racing Stable, 3/9/11) AILA Doc. No. 11031025.
    AILA Doc. No. 11031025.
  • BALCA on Documentation of SWA Job Order(96 KB - 3/8/2011)
    BALCA upheld the CO’s denial, finding that the employer’s submission of a completed SWA job order and fax confirmation sheet was insufficient to demonstrate to the CO that the job order was received and published by the SWA. (Matter of Bettina Equities, 3/4/11) AILA Doc. No. 11030821.
    AILA Doc. No. 11030821.
  • BALCA Says Use of "Not Qualified" to Document Rejection of Applicants Is Insufficient(135 KB - 3/7/2011)
    BALCA held that the use of “not qualified,” without more, was insufficient for the CO to make a proper determination under 20 CFR §656.17(g)(2) that the applicants were rejected for lawful job-related reasons. (Matter of Simmons Audio Video, 3/4/11) AILA Doc. No. 11030727.
    AILA Doc. No. 11030727.
  • BALCA on Job Requirements in Ads vs. ETA 9089(102 KB - 3/3/2011)
    BALCA held that stating a range of experience in recruitment (2-4 years) that goes above the minimum requirements in the application (2 years), inflates the job requirements and is a violation of 20 CFR §656.17(f)(6). (Matter of CCG Metamedia, 3/2/11) AILA Doc. No. 11030334.
    AILA Doc. No. 11030334.
  • BALCA Finds Documentation of ERP Inadequate(90 KB - 3/3/2011)
    BALCA found that 20 CFR §656.17(e)(1)(ii)(G) requires documentation of the employee referral program’s incentives as well as the dates the program was advertised, despite the use of the words “can” and “or” in the regulation. (Matter of Deloitte Services, 3/2/11) AILA Doc. No. 11030333.
    AILA Doc. No. 11030333.
  • BALCA Vacates Denial in the Interest of Fundamental Fairness(107 KB - 2/23/2011)
    BALCA found that although the CO stated that the notice of filing was not included in the audit response, it was clearly intended to be included, and could have been if not for a clerical loss upon sending or receipt. (Matter of Forest View Nursing Home, 2/11/11) AILA Doc. No. 11022369.
    AILA Doc. No. 11022369.
  • BALCA Affirms Denial, Discusses Documentation of Headhunter Recruitment(90 KB - 2/16/2011)
    BALCA found that the recruitment documentation did not show that the employment agencies recruit for software engineers, that they actually solicited for the position, or that the solicitation occurred during the proper time period. (Matter of Unica Corp., 2/9/11) AILA Doc. No. 11021660.
    AILA Doc. No. 11021660.
  • BALCA Remands Finding Internet Job Search Posting Sufficient(113 KB - 2/14/2011)
    BALCA found that the employer’s job search web advertisement met the requirements of 20 CFR §656.17(f) where the search results listed the employer as “confidential” but the name of the employer was disclosed in the advertisement itself. (Matter of Dr. Deza, 2/11/11) AILA Doc. No. 11021465.
    AILA Doc. No. 11021465.
  • BALCA Finds SWA Job Order Must Comply with §656.17(f)(107 KB - 2/14/2011)
    BALCA upheld the denial where the SWA job order contained a requirement not included on the ETA 9089, reasoning that a job order is the functional equivalent of a newspaper ad and is subject to 20 CFR §656.17(f)(7). (Matter of Hayward Unified School District, 2/10/11) AILA Doc. No. 11021464.
    AILA Doc. No. 11021464.
  • BALCA Affirms Denial of Unsigned ETA 9089 Submitted by Mail(81 KB - 1/31/2011)
    BALCA affirmed the CO’s denial and rejected the employer’s argument that he was forced to submit the application without the alien’s signature because the alien currently works in a rural region of Kosovo with limited mail service. (Matter of Café Italiano, 1/27/11) AILA Doc. No. 11013165.
    AILA Doc. No. 11013165.
  • BALCA Reverses Denial, Finding Adequate Proof of Employee Referral Program(88 KB - 1/27/2011)
    BALCA found that the recruitment report, showing that more than 90% of the applications received came from the ERP, was adequate documentation of the ERP as a method of recruitment notwithstanding the undated notice of the program. (Matter of AQR Capital, 1/26/11) AILA Doc. No. 11012767.
    AILA Doc. No. 11012767.
  • BALCA Vacates Denial, Sets Standard for Documentation of Employee Referral Programs(100 KB - 1/21/2011)
    For employee referral programs, an employer must document 1) the program offers incentives to employees for referral; 2) the program was in effect during the recruitment period; and 3) the employees were on notice of the job opening. (Matter of Sanmina-Sci, 1/19/11) AILA Doc. No. 11012131.
    AILA Doc. No. 11012131.
  • BALCA Applies HealthAmerica, Finds CO Should Have Considered Evidence(100 KB - 1/13/2011)
    BALCA held that the CO erred in refusing to consider evidence of website postings submitted with the employer’s request for reconsideration where the documents were held by the employer under the PERM record-keeping provisions. (Matter of Hawthorne Suites, 1/12/11) AILA Doc. No. 11011337.
    AILA Doc. No. 11011337.
  • BALCA Finds Documentation of Employer Website Posting Insufficient(97 KB - 1/13/2011)
    BALCA upheld the CO’s denial, finding that the website print-out did not comply with the regulation requiring dated copies of the posting, and that the statement of the company official did not comply with the format specified in the FAQ. (Matter of EZChip, 1/12/11) AILA Doc. No. 11011336.
    AILA Doc. No. 11011336.
  • BALCA Upholds CO’s Denial Where Employer Lost Original PWD(95 KB - 1/13/2011)
    Where the employer lost the original prevailing wage determination, BALCA concluded that a new PWD obtained outside the applicable time period does not cure the error of failure to retain documentation under 20 CFR §656.10(f). (Matter of Apollo Consulting, 1/12/11) AILA Doc. No. 11011335.
    AILA Doc. No. 11011335.
  • Employer’s Confusing Address Leads to BALCA Remand(145 KB - 1/11/2011)
    BALCA remanded the case for processing, finding sua sponte that the employer’s mailing address could have confused the U.S. Postal Service and could explain why the employer did not receive the audit notification letter. (Matter of 41st Street Corp., 1/7/11) AILA Doc. No. 11011167.
    AILA Doc. No. 11011167.
  • BALCA Remands Finding Evidence of Job Order Placement Sufficient(120 KB - 1/11/2011)
    BALCA remanded the case for certification, finding that 20 CFR §656.17(e)(2) only calls for “placement” of an SWA job order, and that the CO’s request for documentation that the job order was actually run was unreasonable. (Matter of Mandy Donuts, 1/7/11) AILA Doc. No. 11011165.
    AILA Doc. No. 11011165.
  • BALCA Discusses the NOF “Offered Wage” Under 20 CFR §656.17(f)(7)(117 KB - 1/6/2011)
    The “offered wage” is the wage offered to the alien at the time the ETA 9089 is filed. BALCA rejected the argument that the NOF was sufficient where the employer raised the wage after posting to a rate above the NOF range. (Matter of O’Brien & Van Stiphout, 1/3/11) AILA Doc. No. 11010631.
    AILA Doc. No. 11010631.
  • BALCA Upholds Denial Based on NOF Wage Deficiency(90 KB - 1/6/2011)
    BALCA rejected the argument that the DOL FAQs create the impression that the Notice of Filing need only include the prevailing wage, and affirmed the CO’s denial where the NOF contained a wage less than that offered to the alien. (Matter of Alum-A-Lift, 1/3/11) AILA Doc. No. 11010670.
    AILA Doc. No. 11010670.