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Board of Alien Labor Certification Appeals (BALCA)

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  • 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)
  • 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.
  • BALCA Reverses Denial Finding Job Order Form Deficient(183 KB - 12/3/2012)
    BALCA reversed denial because evidence demonstrated that the employer entered the actual minimum requirements into the job order form, but that a deficient form caused those requirements to be converted. (Matter of Cognizant Technology Solutions US Corp., 11/29/12). AILA Doc. No. 12120345.
  • BALCA Reverses CO’s Denial, Discusses Recruitment for “Roving” Positions(248 KB - 11/19/2012)
    BALCA found that the employer did not mislead U.S. workers where the ads stated the position was located in San Francisco and may require multiple long-term regional assignments but the ETA 9089 listed Fremont, the company’s headquarters. (Matter of Infosys, 11/16/12) AILA Doc. No. 12111950.
  • BALCA Upholds Denial Where Attorney Failed to Sign ETA 9089 in Audit Response(82 KB - 10/26/2012)
    BALCA affirmed the denial where the attorney failed to sign the ETA 9089 submitted with the audit response, noting that the instructions provide clear notice to the employer that the 9089 must be signed by the attorney or agent. (Matter of TLH Construction, 8/19/10) AILA Doc. No. 12102647.
  • BALCA on Documenting Employer Referral Programs(623 KB - 10/22/2012)
    BALCA found that the dates on the ETA 9089, a statement that the program was in effect when recruitment began, and proof that the ERP was part of the handbook was sufficient to show that the ERP was in effect during recruitment. (Matter of Bottomline Tech., 10/18/12) AILA Doc. No. 12102240.
  • BALCA on Equivalency of Primary and Alternate Requirements(205 KB - 10/22/2012)
    BALCA found that the alternate requirements of “3 years of experience for each year missing toward a 4 year degree” equals up to 12 years of experience which was not substantially equivalent to a BS + 6 months of experience. (Matter of Microsoft, 10/16/12) AILA Doc. No. 12102260.
  • BALCA Upholds Level 3 PWD for University Psychologist/Lecturer(126 KB - 10/19/2012)
    BALCA affirmed the PWD for a Psychologist/Lecturer, finding that a Level 3 wage for “Clinical, Counseling, and School Psychologists” was proper where the job included both teaching and practicing psychologist duties. (Matter of Univ. of Wisconsin-Oshkosh, 3/27/12) AILA Doc. No. 12101957.
  • BALCA Upholds PWD Where Job Duties Reflect Combination of O*Net Occupations(184 KB - 10/19/2012)
    Applying the code for the higher-paying of the two O*Net occupations, BALCA found that the assignment of a Level 3 wage for “Natural Sciences Managers” was consistent with the 2009 PWD Guidance and was not an abuse of discretion. (Matter of Emory University, 2/27/12) AILA Doc. No. 12101956.
  • BALCA Upholds Denial for Failure to Investigate Applicant’s Qualifications(227 KB - 9/20/2012)
    BALCA held that where a resume showed a broad range of experience, training and education, the employer had a duty to investigate the applicant given its willingness to accept a “combination of education, training, or experience.” (Matter of Select Int’l, 9/19/12) AILA Doc. No. 12092044.
  • BALCA Says “Any Travel” Must be Included in Ads(92 KB - 8/26/2012)
    BALCA held that the “travel requirement” in relation to the geographic area of employment under 20 CFR §656.17(f)(4) is not limited to where the applicant would move for the job and upheld the denial where travel was omitted in the ads. (Matter of M-I, LLC, 8/23/12) AILA Doc. No. 12082642.
  • BALCA Says Drug Testing and Background Checks are “Requirements” for Recruitment Purposes(131 KB - 8/7/2012)
    BALCA found that the phrase, “Hiring Requirements: Drug Testing/Screening, Background Checks” constitutes an additional requirement and upheld the denial where it was listed on the SWA job order but not on the ETA Form 9089. (Matter of Prosoft Associates, 8/3/12) AILA Doc. No. 12080741.
  • BALCA Rejects Employer’s Use of Washington Examiner for PERM Ads(110 KB - 7/31/2012)
    Noting that the Washington Post is a major U.S. paper, BALCA held that though the Examiner might have a wide circulation, the employer failed to show it was the most appropriate for the job opportunity. (Matter of Intercontinental Enterprises, 7/30/12) AILA Doc. No. 12073142.
  • BALCA Finds CO Impermissibly Substituted Judgment for the Employer’s(89 KB - 7/17/2012)
    Citing pre-PERM case law, BALCA found that where there is no finding that the job requirements are unduly restrictive, the employer may reject job applicants who do not meet the minimum requirements without interview. (Matter of JP Morgan Chase & Co., 7/16/12) AILA Doc. No. 12071746.
  • BALCA on Calculating 180-Day Period for Filing under 20 CFR §656.17(e)(104 KB - 6/25/2012)
    The panel rejected General Electric and Calvert Masonry and held that the 180-day time-period for filing the ETA 9089 is calculated based on the date the SWA job order is commenced, not the date it ends. (Matter of Industrial Steel Products, 6/21/12) AILA Doc. No. 12062561.
  • BALCA Reverses Denial, Finds Prevailing Wage Variance De Minimus(100 KB - 6/19/2012)
    Limiting its holding to the facts of the case, BALCA applied the rationale in Superior Landscape and found that where the employer’s advertised wage was 99.9997% of the prevailing wage, the statutory requirements were satisfied. (Matter of Kohler Co., 6/14/12) AILA Doc. No. 12061950.
  • BALCA Says “Employer” Does Not Include its Representatives for Purposes of Job Posting(132 KB - 6/19/2012)
    BALCA held that 20 CFR §656.17(f)(1)’s mandate to “name the employer” in the posted notice of filing cannot be satisfied by naming the authorized representative of the employer, in this case, the CFO. (Matter of Saints, Inc. & Piedmont Dairies, Inc., 6/13/12) AILA Doc. No. 12061949.
  • BALCA Says “6 Months Experience a Plus” Is a Requirement, Not a Preference(87 KB - 6/12/2012)
    BALCA found that the use of “6 months experience a plus” in the employer’s ads was a requirement that could have a chilling effect on recruitment, and upheld the CO’s denial where the ETA 9089 did not include that language. (Matter of STK Industries, Inc., 6/12/12) AILA Doc. No. 12061279.
  • BALCA Finds Employer Failed to Investigate Potentially Qualified U.S. Applicants(106 KB - 6/11/2012)
    BALCA affirmed the CO’s denial, finding the employer failed to interview candidates that facially met the employer’s requirements, where it indicated it would accept “any suitable combination of education, training, or experience.” (Matter of Goldman Sachs, 6/8/12) AILA Doc. No. 12061160.
  • BALCA Affirms Denial Where Employer Failed to Indicate Posting Location(93 KB - 6/1/2012)
    BALCA upheld the denial for failure to state the posting location, noting that while 20 CFR §656.10(d)(1)(ii) supports the argument that there may be other ways to satisfy the posting requirements, the employer failed to present any. (Matter of MT Heating, 5/30/12) AILA Doc. No. 12060150.
  • BALCA Says Attempts to Explain NOF Deficiencies Are Almost Certainly Destined to Fail(105 KB - 5/30/2012)
    Finding the lack of employer name in the NOF fatal, BALCA noted that a majority of cases rejects the Stone Tech suggestion that an NOF deficiency can be overcome by showing it would not have mattered under the circumstances. (Matter of Aero Parts Mgmt, 5/25/12) AILA Doc. No. 12053047.
  • BALCA Discusses Use of Urban vs. Rural Newspapers(109 KB - 5/22/2012)
    BALCA found that where the employer is in a rural area with no Sunday newspaper, an urban newspaper with a Sunday edition may be appropriate if it is more widely circulated in the area of intended employment than the local paper. (Matter of Michigan Tech., 5/21/12) AILA Doc. No. 12052246.
  • BALCA on Mandatory vs. Additional Recruitment(160 KB - 5/21/2012)
    BALCA held that the placing of a third advertisement in a single newspaper may satisfy the PERM recruitment requirements if the newspaper meets the criteria of both a local newspaper and a newspaper of general circulation. (Matter of Symrise, 5/18/12) AILA Doc. No. 12052140.
  • BALCA on Familial Relationship Between Alien and Employer(171 KB - 5/8/2012)
    Referencing pre-PERM case law, BALCA reversed the denial where the alien was the brother of the owner of the sponsoring employer, but had no ownership interest in the company. (Matter of MMB Stucco, 5/7/12) AILA Doc. No. 12050851.
  • BALCA Finds No Regulatory Violation in Wage Error on ETA 9089(154 KB - 5/3/2012)
    BALCA reversed, finding that there was no regulatory violation where the prevailing wage listed on the ETA 9089 was lower than the PWD, and that a typographical error on its own does not provide a valid basis for denial. (Matter of IAC Search & Media, 5/2/12) AILA Doc. No. 12050352.
  • BALCA Upholds Denial Due to Lack of Travel Language in NOF(83 KB - 4/3/2012)
    BALCA found that where the NOF did not specify “unanticipated worksites” as indicated in the ETA 9089, denial was proper because U.S. workers were not apprised of the opportunity, even if travel was optional and not required. (Matter of Sun Microsystems, 3/29/12) AILA Doc. No. 12040347.
  • BALCA Upholds Denial of Certification Where Travel Not Mentioned in Ad(83 KB - 4/3/2012)
    BALCA found that where the ETA 9089 included language regarding possible travel that was not included in the ad, the application was properly denied because qualified U.S. applicants who are interested in travel may not have applied. (Matter of Deloitte FAS, 3/29/12) AILA Doc. No. 12040346.
  • BALCA Affirms Denial Where Web Ad Differed from ETA 9089(79 KB - 4/3/2012)
    Where the ETA 9089 listed a bachelor’s degree requirement but the employer’s website listed high school education, BALCA upheld the denial, finding that qualified applicants might not have applied if they thought they were overqualified. (Matter of Pixar, 3/29/12) AILA Doc. No. 12040345.
  • BALCA Finds Employer Failed to Investigate Qualifications of U.S. Applicants(126 KB - 3/28/2012)
    BALCA found that the employer improperly rejected several applicants without first conducting an interview or determining whether they would be qualified for the position after a reasonable period of on-the-job training. (Matter of Kennametal, 3/27/12) AILA Doc. No. 12032867.
  • BALCA on Content of Supervised Recruitment Report(119 KB - 3/28/2012)
    BALCA found that the employer’s failure to list the addresses of the U.S. workers who applied for the job on the recruitment report was a material omission and refused to incorporate by reference the addresses from the resumes. (Matter of JP Morgan Chase, 3/27/12) AILA Doc. No. 12032843.
  • BALCA on Documenting Recruitment by Private Employment Firms(97 KB - 3/26/2012)
    BALCA found that the requirements of 20 CFR §656.17(f), including naming the employer, do not apply to ads placed by private employment firms, but these ads must comply with the employer’s duty to recruit in good faith. (Matter of World Agape Mission Church, 3/23/12) AILA Doc. No. 12032642.
  • BALCA Finds Attestations in ETA 9089 Insufficient to Show Dates of ERP(99 KB - 3/19/2012)
    BALCA held that when the employer is audited and directed to submit recruitment documentation, it may not rely solely on the attested dates in the ETA 9089 as the dates an employee referral program was in effect. (Matter of Marlabs, Inc., 3/16/12). AILA Doc. No. 12031939.
  • BALCA En Banc Panel Says Proof of Job Order Publication Is Not Required(143 KB - 3/9/2012)
    BALCA held that proof of publication of the SWA job order is not required supporting documentation based on the plain language of §656.17(e)(2)(i) and the history of the PERM regulations, and reversed the CO’s denial. (Matter of A Cut Above Ceramic Tile, 3/8/12) AILA Doc. No. 12030962.
  • BALCA on Definition of College or University Teacher(89 KB - 3/7/2012)
    Noting that there is no regulatory definition of college or university teacher, BALCA agreed with the employer that an individual need not only perform teaching duties to qualify for special recruitment and vacated the denial. (Matter of Mercer University, 3/6/12) AILA Doc. No. 12030771.
  • BALCA on Single Advertisements for Multiple Jobs Opportunities(176 KB - 3/1/2012)
    Citing AILA liaison notes, BALCA held that where the employer placed a single ad for multiple jobs, the language “may require travel” was indistinguishable from DOL-endorsed “some positions may require travel” and reversed the denial. (Matter of Microsoft, 2/29/12) AILA Doc. No. 12030120.
  • BALCA Reverses Denial, Finds Nexus between Ads and Position on ETA 9089(94 KB - 2/28/2012)
    BALCA found that where the job title on the ETA 9089 (Business Dev. Specialist) was different from that listed in the ads (Business Dev. VP) there was still a sufficient nexus between the ads and the ETA 9089. (Matter of Target Point Media, 2/27/12). AILA Doc. No. 12022849.
  • BALCA Vacates Denial Notwithstanding Incomplete ETA 9089(130 KB - 1/25/2012)
    BALCA held that although the employer failed to include the alien’s relevant employment history on the ETA 9089, documentation confirming the employment was sent with the audit response and should have been considered by the CO. (Matter of O’Connor Hospital, 1/24/12) AILA Doc. No. 12012562.
  • BALCA Says Wall Street Journal Is a Newspaper of General Circulation(92 KB - 1/5/2012)
    BALCA held that the Wall Street Journal is a newspaper of general circulation, not a professional journal, and an ad that was not run on a Sunday cannot be used in lieu of the mandatory Sunday ads under 20 CFR §656.17(e)(1)(i). (Matter of Discovery Networks, 1/4/12) AILA Doc. No. 12010562.