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2007

  • BALCA Finds Abuse of Discretion in Denial for SWA Error(89 KB - 12/20/2007)
    BALCA finds that the CO abused his discretion in refusing to vacate a denial based on an error by the SWA that caused a one-day deficiency in the length of the job order. Matter of Lam Garden Chinese Restaurant, 2008-PER-00014 (12/17/07). AILA Doc. No. 07122066.
  • Applicant Seeks Compassion from BALCA(96 KB - 11/13/2007)
    BALCA declines to overlook the failure of a self-represented PERM applicant to properly advertise for a home health worker position, and suggests that the applicant "consider engaging an immigration attorney to assist her in understanding and complying with the regulations." Matter of Robinson, 2007-PER-00084 (10/15/07) AILA Doc. No. 07111366.
  • Miscommunication Between Employer and SWA Decided Against Employer(142 KB - 9/26/2007)
    Concluding that the CO is not bound by SWA statements, BALCA rejects an employer's misunderstanding of SWA instructions as an excuse for insufficient advertisement. The Lucky Horse holding regarding a language requirement to manage a non-English-speaking workforce also is reconfirmed. Matter of Malnati Organization, 2007-INA-00035-52 (9/24/07). AILA Doc. No. 07092674.
  • Wrong Certifying Office on Posting Not Fatal to PERM Application(107 KB - 9/26/2007)
    Limiting its decision to the specific facts, BALCA finds that putting the address of the NY certifying office, rather than the Atlanta Processing Center, on the posting should not result in denial of the PERM application, where the NY office was still open at the time of the posting. Matter of Brooklyn Amity School, 2007-PER-00064 (9/19/07). AILA Doc. No. 07092673.
  • BALCA Rejects HealthAmerica Argument As Raised Too Late(69 KB - 9/26/2007)
    BALCA rejects, as outside the record, the argument that an error on the 9089 was an unintentional typo that could be disregarded under HealthAmerica, where the employer initially argued on reconsideration that the ETA 9089 had been correctly completed but input wrong by DOL. Matter of Best Park, LLC, 2007-PER-00055 (9/18/07). AILA Doc. No. 07092661.
  • Employer Must Choose Between Readvertising and Defending Job Requirement(83 KB - 9/26/2007)
    BALCA rejects an offer to delete from an RIR conversion application a requirement that the beneficiary met through experience gained on the job, and readvertise under supervised recruitment. It found that the employer's defense of infeasibility was inconsistent with an offer to readvertise. Matter of Rigo Industries, 2007-INA-00020 (9/18/07). AILA Doc. No. 07092660.
  • BALCA Finds Failure to Answer J-13 Fatal(235 KB - 9/25/2007)
    BALCA concludes that the CO was correct in denying a PERM application for failure to answer Form 9089 section J-13, regarding the year the beneficiary's education was completed. Matter of Spectrum Foods, Inc., 2007-PER-00037 (6/27/07). AILA Doc. No. 07092568.
  • BALCA Addresses Use of Kellogg Language(321 KB - 9/25/2007)
    In a case involving possible alternative experience requirements, BALCA addresses the need for the "magic language" from Matter of Francis Kellogg with respect to "any suitable combination of education, training or experience." Matter of Demos Consulting Group, 2007-PER-00020 (5/16/07).
  • BALCA Upholds Denial for Failure to Answer H-8(218 KB - 8/3/2007)
    BALCA concludes that failure to make a selection for item H-8 on Form ETA 9089 renders the application incomplete and thus deniable. Matter of Alpine Store Inc., 2007-PER-07365 (6/27/07). AILA Doc. No. 07080360.
  • BALCA Addresses Itinerant Employee Issues(316 KB - 6/21/2007)
    BALCA concludes that, where a job involves various unanticipated worksites, the application should be filed where the employer's main office is located, and that mere business presence in another location is not sufficient to place venue in that location. Matter of Paradigm Infotech, Inc., 2007-INA-00003-06 (6/15/07). AILA Doc. No. 07062170.
  • BALCA Finds Efforts to Contact Applicants Sufficient(278 KB - 6/21/2007)
    BALCA finds good faith recruitment where the employer sent a certified letter and made one attempt to call the applicant. It also finds an acceptable level of involvement by an immigration consultant whose address was on the return receipt for the letter to the applicants. Matter of Leo's Automotive Service #1, 2006-INA-00020 (6/15/07). AILA Doc. No. 07062169.
  • BALCA Addresses Filing Date for Mailed-In PERM Cases(351 KB - 6/21/2007)
    BALCA finds that the date of filing for a mailed-in PERM case is the date the application is stamped by the processing center, not the postmark date. Matter of Cafe Vallarta, 2007-PER-00029 & 33 (6/12/07). AILA Doc. No. 07062164.
  • BALCA Unconvinced by Request to Interpret 180 Days as “Business Days” or PERM System Time-Outs(248 KB - 6/12/2007)
    BALCA holds that CO did not abuse his discretion in refusing to reconsider denial because the online PERM system had been timing out. Finds contention that 20 C.F.R. § 656.17(e) should be interpreted to permit recruitment within 180 “business” days, rather than calendar days, untenable. Matter of Richmond Printing, LLC, 2007-PER-00035 (6/12/07). AILA Doc. No. 07061291.
  • BALCA Finds RIR Cannot Be Denied Outright for Rejection of U.S. Workers (5/21/2007)
    BALCA finds, in consolidated cases on which AILA submitted an amicus brief, that, if a CO grants an RIR but finds inadequate consideration of U.S. workers, the application must be referred for recruitment and not denied outright. Matter of Express Photo, Inc. et al, 2005-INA-00128, etc. (5/16/07). AILA Doc. No. 07052160.
  • BALCA Upholds Denial Based on Employer’s Non-Compliance With Tax Laws(320 KB - 4/27/2007)
    BALCA upheld the denial of a labor certification filed for a housekeeper on the ground that the employer was not “offering a position with lawful terms and conditions of employment” because the Employer failed to report the wages it had already paid to the alien. Matter of Anabelo C and Dorothy H. Borja, 2006-INA-00054 (3/13/07). AILA Doc. No. 07042771.
  • BALCA Upholds Denials Based on W-2s with Wrong Names(250 KB - 4/18/2007)
    BALCA upheld the denials of 5 labor certification applications where the W-2 forms that the C.O. had requested for the beneficiaries were in different names than the names on the applications and the inconsistencies were not adquately explained. Matter of Goldilocks Corp., 2006-INA-00013-15,21, 34 (3/2/07). AILA Doc. No. 07041861.
  • BALCA Refuses Substitution of Employer(250 KB - 4/17/2007)
    BALCA denies a request to substitute one employer for another on a permanent labor certification application, noting that a change of employers requires that the alien be in the exact same position in the same area of employment and here the employers are in different states. Matter of Horizon Science Academy, 2006-INA-00046 (3/8/07). AILA Doc. No. 07041766.
  • BALCA Addresses PERM Appendix A Issue(276 KB - 4/17/2007)
    BALCA finds that a landscaping company should have followed the PERM recruitment rules for professionals for a position titled Landscape Designer where the Landscape Architect O*Net code was used and 4 years of experience were required even though no degree was required. Matter of Orlandi Landscaping Group, 2007-PER-00016 (4/9/07). AILA Doc. No. 07041762.
  • BALCA Requires Documentation of Application's Legitimacy(247 KB - 1/3/2007)
    BALCA finds, in a case in which the company's previous agent had been convicted of filing fraudulent labor certification applications, the employer needed to have complied fully with the certifying officer's request for documentation about the company. Matter of Blesing's Floor Co., Inc., 2005-INA-016 (11/7/06). AILA Doc. No. 07010361.
  • BALCA Finds Experience Gained on the Job(301 KB - 1/3/2007)
    Despite the fact that the prior employer and the employer offering the labor certification position are legally distinct entities, BALCA finds that the beneficiary gained the required experience on the job in light of the close relationship between the two entities. Matter of Harvest Office Services, Inc., 2005-INA-111 (12/7/06). AILA Doc. No. 07010360.