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2013

  • BALCA Says CO May Order New PWD During Supervised Recruitment(227 KB - 12/20/2013)
    BALCA held that the CO has the authority to direct an employer to obtain a new PWD during supervised recruitment under 20 CFR §656.21 and to deny certification under 20 CFR §656.21(f) if the employer refuses to run a draft advertisement using the new PWD. (Matter of Palm City Palms, 12/19/13)
    AILA Doc. No. 13122049.
  • BALCA Reverses Denial Where CO Failed to Timely Rule on Motion(208 KB - 12/17/2013)
    BALCA found that the motion to extend time to respond to the audit tolled denial until the CO ruled on the motion, and that the CO erred in relying solely on the fact that the motion had been made only two days before the due date to deny the extension. (Matter of Heso Electrical, 12/16/13)
    AILA Doc. No. 13121761.
  • BALCA Reverses CO’s Decision on Seasonal Needs of H-2A Petition(233 KB - 12/6/2013)
    BALCA reverses CO’s denial of an open range cattle herder position, finding that the position was seasonal in nature and that the seasonal changes of the weather and the gestational cycle of cattle result in differing seasonal labor needs. (Vermillion Ranch Limited Partnership, 12/5/13)
    AILA Doc. No. 13120608.
  • BALCA Vacates H-2B Supplemental PWDs and the Increased Wage Obligations(1431 KB - 12/4/2013)
    BALCA vacates supplemental prevailing wage determinations (PWDs) and the increased wage that they purport to impose because DOL regulations do not require an employer to comply with a PWD issued after the ETA Form 9142 has been approved and granted. (Matter of Island Holdings LLC, 12/3/13)
    AILA Doc. No. 13120449.
  • BALCA Reaffirms Zero Tolerance for Failing to Submit “Required Documentation”(282 KB - 11/15/2013)
    BALCA upheld CO’s denial, finding the employer failed to timely produce a copy of the PWD in the audit response, thus failing to produce “required documentation” that was specifically identified as evidence the employer was required to retain. (Matter of Siemens Energy & Automation, 11/7/13)
    AILA Doc. No. 13111543.
  • BALCA Discusses Factors for “Professional or Trade Organizations”(203 KB - 11/4/2013)
    Noting that the list of factors set forth in the decision were not exhaustive, BALCA found that Dice.com is a job search website for IT professionals, not a “professional organization” for purposes of recruitment under 20 CFR §656.17(e)(1)(ii)(E). (Matter of Privthi Info. Solutions, 11/1/13)
    AILA Doc. No. 13110448.
  • BALCA Finds Employer’s Attempts to Screen U.S. Workers Insufficient(213 KB - 11/4/2013)
    BALCA held that the letters the employer sent to U.S. applicants were insufficient, noting that there was no attempt to determine whether they could become qualified with reasonable on-the-job training and there was no proof that the applicants received the letters. (Matter of Twins, 11/1/13)
    AILA Doc. No. 13110446.
  • BALCA Finds Omission of Notarized Statement in Audit Response Immaterial(237 KB - 9/30/2013)
    BALCA held that the employer did not “substantially fail to provide required documentation” in failing to provide a notarized statement attesting to its desire to sponsor the alien as the statement is not required by regulation and its omission was not material. (Matter of Saran, 8/27/13)
    AILA Doc. No. 13093062.
  • BALCA Says Employer Efforts to Contact U.S. Applicants Lacked Good Faith(265 KB - 9/27/2013)
    BALCA upheld the CO’s denial, noting that when the tracking information for interview invitations sent via certified mail revealed that the letters did not reach the applicants, the employer failed to make additional attempts to contact the applicants. (Matter of W. Alex Choi, CPA, 9/26/13)
    AILA Doc. No. 13092703.
  • BALCA Says Right to Respond to NOIR Is Inherent in the Regulations(245 KB - 9/25/2013)
    BALCA found that where the employer’s counsel did not receive a copy of the NOIR within a period of time that would have allowed him to timely submit rebuttal evidence, the CO’s revocation was an abuse of discretion that resulted in manifest injustice. (Matter of SNS Enterprises, 9/24/13)
    AILA Doc. No. 13092540.
  • BALCA Indicates that ETA 9089 Errors Might Be Addressed in Audit(208 KB - 9/22/2013)
    BALCA denied certification, basing its decision in part on the fact that where erroneous information was provided on the ETA 9089, the employer had an opportunity to provide an explanation in the audit response, but failed to do so. (Matter of APT-Advanced Polymer, 9/13/13)
    AILA Doc. No. 13092240.
  • BALCA Says Content Requirements for Ads Do Apply to SWA Job Orders(226 KB - 8/29/2013)
    In a case involving a different BALCA panel than that which decided Chabad Lubavitch Center, BALCA found that in the context of a professional position, the content requirements for newspaper and journal ads at 20 CFR 656.17(f) apply to SWA job orders. (Matter of IBM Corp., 8/27/13)
    AILA Doc. No. 13082941.
  • BALCA Upholds Denial for Failure to Specify Location of NOF Posting(188 KB - 8/21/2013)
    BALCA found that where a PERM audit requests NOF documentation in accordance with 20 CFR §656.10(d), the employer’s attestation on the ETA 9089 is insufficient to demonstrate that the NOF was posted where it was clearly visible and unobstructed. (Matter of Redyk Travel, 8/8/13)
    AILA Doc. No. 13082146.
  • BALCA Says Content Requirements for Ads Do Not Apply to SWA Job Orders(212 KB - 7/30/2013)
    BALCA reversed the CO’s denial, finding that under the plain language of 20 CFR 656.17(e)(2)(i), the content requirements for newspaper and journal ads at 20 CFR 656.17(f) do not apply to SWA job orders for non-professional positions. (Matter of Chabad Lubavitch Center, 7/29/13)
    AILA Doc. No. 13073040.
  • BALCA Says Employers Do Not Need to Document Posting Dates of NOF(246 KB - 7/29/2013)
    Disagreeing with prior panels, BALCA held that 20 CFR 656.10(d) does not require documentation of the posting dates of the Notice of Filing (NOF) and that the affirmation on the ETA 9089 that the NOF complies with the regulations is sufficient. (Matter of Seven Oaks Landscapes, 7/26/13)
    AILA Doc. No. 13072941.
  • BALCA Upholds Denial in Case Involving Home Office(325 KB - 7/25/2013)
    BALCA found the employer’s ads unduly restrictive, where the employer listed “Houston, TX” (the place of the beneficiary’s residence) as the geographic area of employment, when in fact, the position is more flexible and allows the person to work from home. (Matter of Siemen’s, 7/23/13)
    AILA Doc. No. 13072542.
  • BALCA Acknowledges Due Process Concerns But Upholds PERM Denial(332 KB - 7/12/2013)
    Noting that the CO “inexplicabl[y]” cited 20 CFR §656.17(f)(7) as authority for the denial when §656.17(f)(4) is directly on point, BALCA found no due process violation in affirming the denial, where the employer failed to list travel requirements in the ads. (Matter of Riverwalk, 7/3/13)
    AILA Doc. No. 13071241.
  • BALCA OKs Omission of Language Requirement in NOF(212 KB - 7/5/2013)
    BALCA reversed the denial, finding the omission of a Spanish language requirement in the Notice of Filing was not by itself fatal to the application where the overall text of the NOF was sufficient to apprise U.S. workers of the job opportunity. (Matter of Architectural Stone Accents, 7/3/13)
    AILA Doc. No. 13070551.
  • BALCA Remands, Discusses Flexibility of H-2B “Temporary Need” Regulations(244 KB - 6/24/2013)
    Noting the employer began operations in September 2012, BALCA vacated the denial, finding the employer established its need for 50 workers from April to December, with evidence that included invoices from September through December of 2012. (Matter of Midwest Poured Foundations, 6/18/13)
    AILA Doc. No. 13062400.
  • BALCA on Presumption of Delivery of DOL Mail(222 KB - 5/29/2013)
    BALCA held that the CO is not entitled to a presumption of delivery of mail sent by it absent proof of its mailing procedures and that even if there was a presumption, statements denying receipt and other circumstantial evidence effectively rebutted it. (Matter of VB Hospitality, 5/28/13)
    AILA Doc. No. 13052951.
  • BALCA Says 20 CFR 656.11(b) Effectively Overruled HealthAmerica(188 KB - 5/29/2013)
    BALCA affirmed the denial where there was a 10 cent difference between the wage on the ETA 9089 and the PWD and the NOF, noting that 20 CFR 656.11(b) effectively overruled HealthAmerica by requiring applications filed after 7/16/07 to be error-free. (Matter of Sushi Shogun, 5/28/13)
    AILA Doc. No. 13052950.
  • BALCA on Documenting Recruitment from the Employer’s Website(189 KB - 4/30/2013)
    BALCA found that where an employer attestation in the recruitment report is submitted as evidence of recruitment on the employer’s website in lieu of dated screenshots, the attestation must be in affidavit form. (Matter of DGN Technologies, 4/29/13)
    AILA Doc. No. 13043046.
  • BALCA Says Laid-Off U.S. Worker was Rejected for a Lawful, Job-Related Reason(221 KB - 4/30/2013)
    BALCA found that the U.S. worker’s lack of special skills was a lawful, job-related reason for rejection, and that the employer’s failure to identify the requirements for the U.S. worker’s previous position did not warrant denial. (Matter of Cisco Systems, 4/26/13)
    AILA Doc. No. 13043041.
  • BALCA on Use of “May” in Job Postings for Multiple Positions(670 KB - 4/26/2013)
    In two cases involving similar facts, BALCA looked for contextual cues in the NOF to determine whether the term “may” indicated the requirement applied to only some positions. BALCA upheld the denial of one case and reversed the second. (Matters of Oracle, 4/24/13)
    AILA Doc. No. 13042647.
  • BALCA Remands, Says Ads Would Not Prevent U.S. Workers from Applying(189 KB - 4/22/2013)
    Noting that the job description was written in plural terms, BALCA found that the ads clearly included multiple positions, were not misleading, and did not cause confusion that would prevent potential U.S. applicants from applying. (Matter of Microsoft Corp., 4/12/13)
    AILA Doc. No. 13042242.
  • En Banc Panel Resolves BALCA Dispute Over Prevailing Wage Documentation(259 KB - 4/19/2013)
    BALCA found that where the CO requested the prevailing wage request and the determination in an audit, the employer’s failure to provide the request was not a substantial failure to provide required documentation under 655.20(b). (Matter of SAP America, 4/18/13)
    AILA Doc. No. 13041947.
  • BALCA Rejects Newspaper HQ as Determinative in Evaluating Area of Intended Employment(241 KB - 3/20/2013)
    BALCA rejected the argument that §656.17(e)(1)(i)(B)(1) requires a newspaper whose headquarters is within commuting distance of the area of employment and upheld the use of the Arkansas Democrat Gazette for a position in Bentonville. (Matter of Wal-Mart, 3/19/13)
    AILA Doc. No. 13032041.
  • BALCA Grants LC; Finds Employer Reported a Valid FEIN(193 KB - 2/25/2013)
    BALCA rejected the CO’s position that the address listed on Section C of the ETA 9089 must match the employer’s tax return address, finding it “hardly surprising” that a horse trainer would have more than one address. (Matter of Duane Offield Racing Stables, 2/25/13)
    AILA Doc. No. 13022590.
  • BALCA Says No Abuse of Discretion in Assigning Level IV Wage to Entry-Level Manager(227 KB - 2/19/2013)
    BALCA upheld the Level IV wage noting that although the 2009 guidance requires DOL to exercise judgment when issuing PWDs there was no abuse of discretion in not lowering the wage where the position required 5 years of experience. (Matter of Sherwin-Williams, 2/19/13)
    AILA Doc. No. 13021900.
  • BALCA Finds Washington Examiner Appropriate for Non-Professional Position(237 KB - 2/12/2013)
    Distinguishing professional from non-professional positions in the use of certain newspapers, BALCA found that the Washington Examiner was an appropriate publication to advertise a non-professional position. (Matter of Capitol Building Services, 2/12/13)
    AILA Doc. No. 13021291.
  • BALCA Vacates Supervised Recruitment Denial, Says DOL Acted Too Soon(177 KB - 2/12/2013)
    BALCA found that though the employer failed to provide a copy of the foreign worker’s resume as requested, the CO erred in denying the case 16 days after instructions were issued because 20 CFR §656.21(f) mandates 30 days. (Matter of John Chance Land Surveys, 2/12/13)
    AILA Doc. No. 13021290.
  • BALCA on Travel Requirements and Multi-Position Notices of Filing(247 KB - 2/7/2013)
    BALCA held that although the use of a plural in the job title indicated that the NOF was for multiple positions, it did not give any contextual cues that would signify that the travel requirement only applied to some of the positions. (Matter of Oracle, 2/6/13)
    AILA Doc. No. 13020746.
  • BALCA Discusses Substantially Equivalent Alternative Requirements(204 KB - 2/7/2013)
    BALCA upheld the CO’s denial, rejecting the 3-to-1 argument and finding that one year of experience (with or without a degree) equals one year for SVP purposes, and a bachelor’s degree equals two years for SVP purposes. (Matter of Telcordia Technologies, 2/6/13)
    AILA Doc. No. 13020745.
  • BALCA Interprets Drafting of Alternative Requirements on the ETA 9089(187 KB - 1/24/2013)
    BALCA reversed the denial, finding that the CO ignored the employer’s experience requirements stated in Item H-14 and incorrectly interpreted the alternative education requirements as alternative employment requirements. (Matter of General Electric Co., 1/22/13)
    AILA Doc. No. 13012442.
  • BALCA Affirms H-2B Denial for Failure to File as Joint-Employer(510 KB - 1/8/2013)
    BALCA found the employer was a “job contractor” under §655.4, noting that while the H-2Bs would be hired, paid, and fired by the employer, the record did not show that it, rather than the end-party, would supervise the work. (Matter of Int’l Plant Services, 12/21/12)
    AILA Doc. No. 13010854.
 
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