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Board of Alien Labor Certification Appeals (BALCA)

  • BALCA Vacates Denial and Remands to CO for Amendment of Filing Date(99 KB – 10/20/2009)
    BALCA vacates the denial based on the fact that the request for PERM conversion and to maintain the original priority date of 4/26/01 was submitted prior to the receipt of the Recruitment Notice. Matter of Far East Home Care, Inc., 2009-PER-00170 (7/13/09).
  • BALCA Affirms PERM Denial Based on Restrictive Experience Requirement(101 KB – 10/19/2009)
    BALCA affirmed the PERM denial on the ground that the requirement of 14 years experience for an SVP 7 position significantly restricted the applicant pool and contravened the SVP requirement. The Employer’s petition for en banc review was denied. Matter of Globalnet Management, L.C., 2009-PER-00110 (8/6/09).
  • BALCA Affirmed PERM Denial Because Job Order Placed 184 Days Prior to CO’s Date Stamp(81 KB – 10/19/2009)
    BALCA affirmed denial of LC because the SWA job order had been placed 184 days prior to the CO’s date stamp, and 20 CFR Sec.656.17(e)(2) requires that the job order must be placed no more than 180 days before the date of filing the application as indicated by the CO’s stamp, not the postmark. Matter of The Drywall Doctors, 2009-PER-00335 (8/6/09).
  • BALCA Affirms Denial Based on Lack of Proof of Job Order(95 KB – 9/22/2009)
    BALCA affirms the denial of a labor certification on the ground that the Employer provided no proof the job order actually ran, that it ran for at least 30 days, and that it fit within the regulatory time constraints of 656.17(e). Matter of Van Bui, D.D.S., 2009-PER-00144(7/01/09).
  • BALCA Affirms Denial Based on Job Order Deficiency(82 KB – 9/22/2009)
    BALCA affirms the denial of a labor certification on the ground the Employer did not document that the Job Order was run by the SWA for the requisite 30 days. Matter of Pacific Lumber Supply, Inc., 2009-PER-00208(7/01/09).
  • BALCA Affirms LC Denial Due to Notice of Filing Deficiency(130 KB – 9/22/2009)
    BALCA affirms the denial of a labor certification on the ground that the Employer’s Notice of Filing failed to include any information on how to contact the appropriate CO. Matter of Ron Lopes, LLC, 2009-PER-00009(6/30/09).
  • BALCA Reverses PERM Denial Based on Reasoning in Brooklyn Amity School(293 KB – 9/14/2009)
    BALCA reverses the denial of a labor certification on the ground that putting the address of the San Francisco CO, rather than the National Processing Center (NPC), should not result in a PERM denial where it is undisputed that the San Francisco CO was forwarding applications to the NPC. Matter of Hawaii Pacific University, 2009-PER-00127(6/25/09).
  • BALCA Affirms Denial as Employer Placed Advertisements More than 180 Days before Filing(78 KB – 8/13/2009)
    BALCA upholds denial of the PERM application, finding that the employer placed the two newspaper advertisements outside the window required under 20 C.F.R. § 656.17(e). The advertisements were placed more than 180 days prior to the date the application was submitted. Matter of Ivonne Median and Anthony Morales, 2009-PER-00243 (6/23/09).
  • BALCA Upholds Denial of PERM Application Filed Ten Days after End of SWA Job Order(88 KB – 8/12/2009)
    BALCA finds CO correctly determined the Employer’s documentation did not justify changing the dates of the SWA job order from the ones written on the 9089. Employer requested an earlier SWA job order be used in support of the application, but the earlier job order was for a different position. Matter of Madigan Productions, 2009-PER-00033 (6/23/09).
  • BALCA Vacates Denial so that Employer Can Clear Up FEIN Inconsistency(89 KB – 8/11/2009)
    BALCA vacates denial of PERM application. Finds some merit to argument that CO never requested proof of valid FEIN. Remands matter to the CO to provide the Employer with the opportunity to clear up the inconsistency between the FEIN used on the application and the FEIN used in a prior approved application. Matter of Ornelas, Inc., 2009-PER-00246 (6/23/09).
  • BALCA Affirms Denial for Failure to State Rate of Pay in Notice of Filing(79 KB – 8/11/2009)
    BALCA finds that under 20 C.F.R. §656.10(d)(4) the Notice of Filing must state the rate of pay, and failure to do so constitutes grounds for denial. The Employer did not address this deficiency in the Notice of Filing either in its request for review or in an appellate brief. Matter of Servion Global Solutions, Inc., 2009-PER-00282 (6/23/09).
  • BALCA Upholds Denial for Untimely Recruitment and Job Order Placement(83 KB – 7/23/2009)
    BALCA affirms CO’s denial of the application because 1) the employer placed the job order six months after filing the 9089 and 2) the employer completed the third additional recruitment step five months after filing the application rather than within 30 days of filing as required. Matter of Tucs Cleaning Service, Inc., 2008-PER-00019 (6/23/09).
  • BALCA Upholds Denial for Unexplained Discrepancy in FEIN Numbers(79 KB – 7/15/2009)
    BALCA affirms CO’s denial finding a discrepancy in the FEIN number on the 9089 and the one presented in documentation in support motion for review. Notes discrepancy in FEINs was not identified as an issue until ruling on reconsideration, but that the employer did not file appellate brief. Matter of Ralph Basile Construction, 2009-PER-00092 (3/17/09).
  • BALCA Holds CO Should Have Considered Audit Documentation when Ruling on Motion to Reconsider(124 KB – 5/19/2009)
    BALCA reverses denial of PERM application. Employer omitted work history from 9089 needed to demonstrate requisite experience prior to being hired. But, BALCA finds that PERM recordkeeping file, before the CO in the course of audit, should have been considered when ruling on the motion to reconsider. Matter of Pa’lante, LLC, 2008-PER-00209 (5/7/09).
  • BALCA Upholds Denial Where Employer Conducted its Own Prevailing Wage Survey(87 KB – 5/15/2009)
    BALCA upholds denial of PERM application where employer used its own prevailing wage survey after the SWA did not respond to its request for a prevailing wage determination. BALCA finds when an employer intends to use own survey, it must submit the survey to the SWA for a determination of its adequacy. Matter of Jackson, 2008-PER-00192 (4/9/09).
  • BALCA Finds Employer Unable to Document Reason for Submission of PWD Form from Wrong State(93 KB – 5/14/2009)
    BALCA affirms denial of PERM application because of employer’s failure to request a prevailing wage determination (PWD) from the SWA having jurisdiction over proposed area of intended employment. PWD form submitted was from California, listed area of intended employment was Rhode Island. Matter of A Fresh Perspective, Inc., 2008-PER-00203, (3/31/09).
  • BALCA Upholds Denial Because Employer Did Not Wait Thirty Days after End of Job Order to File(82 KB – 5/13/2009)
    BALCA upholds denial of PERM application because employer submitted the application 11 days after end of SWA job order. BALCA finds filing before the end of the 30 day period reflects employer’s indifference to whether U.S. applicants are given adequate consideration for the job opportunity. Matter of A&S Marble Granite, Inc., 2008-PER-00213, 1/5/09.
  • BALCA Finds Employer Failure to Prove that Absence of Name on Notice of Filing is Immaterial(116 KB – 4/29/2009)
    BALCA upholds the PERM application denial. The employer asked for equitable relief. BALCA finds evidence was needed that the absence of the employer’s name would not be material to the effectiveness of the Notice of Filing, even if the company president’s name and phone number were listed. Matter of Stone Tech Fabrication, 2008-PER-00187 (1/5/09).
  • BALCA Does Not Excuse Employer’s Error in Listing Notice of Filing Date(93 KB – 4/29/2009)
    BALCA upholds denial for failure to post a notice of filing between 30 and 180 days before the application filing. Finds a “mere statement” from the attorney that that the notice of filing date listed on the 9089 was an error is insufficient to establish that it was a clerical error. Matter of Soule, Blake & Wechsler, Inc., 2008-PER-00184 (3/31/09).
  • BALCA Holds Certification Cannot be Denied for Lack of Kellogg Language(71 KB – 4/21/2009)
    BALCA vacates and orders certification of a PERM application for a Computer Systems Analyst. Concludes case is governed by Federal Insurance Co., which held that certification could not be denied based on the failure to write the Kellogg language on the ETA 9089. Matter of Kpit Infosystems Inc., 2009-PER-00075 (2/25/09). Courtesy of Ramesh Gurnani.
  • BALCA Rejects Argument that Regulation Prevents CO from Denying Audited Application(103 KB – 4/17/2009)
    BALCA finds 20 C.F.R. § 656.20(b) relates to failure to provide documentation in an audit response, not to the CO’s authority to review that documentation to determine whether it complies with the regulations. Also rejects argument that absence of the CO’s address was insignificant to application. Matter of Aramark Corporation, 2008-PER-00181, 1/8/09.
  • BALCA Finds There is No “On-the-Job-Site-Hire” Exception to PERM Requirements(104 KB – 4/16/2009)
    BALCA upholds the denial of a PERM application for failure to complete several sections of the 9089. Employer argued that reason for failure to provide a start date for the job order and failure to run Sunday print advertisements was that “This was an on-the-job-site hire.” Matter of Franco’s Construction, 2008-PER-00128 (1/6/09).
  • BALCA Holds CO Should Have Considered Audit Documentation when Ruling on Motion to Reconsider(124 KB – 5/19/2009)
    BALCA reverses denial of PERM application. Employer omitted work history from 9089 needed to demonstrate requisite experience prior to being hired. But, BALCA finds that PERM recordkeeping file, before the CO in the course of audit, should have been considered when ruling on the motion to reconsider. Matter of Pa’lante, LLC, 2008-PER-00209 (5/7/09).
  • BALCA Upholds Denial Where Employer Conducted its Own Prevailing Wage Survey(87 KB – 5/15/2009)
    BALCA upholds denial of PERM application where employer used its own prevailing wage survey after the SWA did not respond to its request for a prevailing wage determination. BALCA finds when an employer intends to use own survey, it must submit the survey to the SWA for a determination of its adequacy. Matter of Jackson, 2008-PER-00192 (4/9/09).
  • BALCA Finds Employer Unable to Document Reason for Submission of PWD Form from Wrong State(93 KB – 5/14/2009)
    BALCA affirms denial of PERM application because of employer’s failure to request a prevailing wage determination (PWD) from the SWA having jurisdiction over proposed area of intended employment. PWD form submitted was from California, listed area of intended employment was Rhode Island. Matter of A Fresh Perspective, Inc., 2008-PER-00203, (3/31/09).
  • BALCA Upholds Denial Because Employer Did Not Wait Thirty Days after End of Job Order to File(82 KB – 5/13/2009)
    BALCA upholds denial of PERM application because employer submitted the application 11 days after end of SWA job order. BALCA finds filing before the end of the 30 day period reflects employer’s indifference to whether U.S. applicants are given adequate consideration for the job opportunity. Matter of A&S Marble Granite, Inc., 2008-PER-00213, 1/5/09.
  • BALCA Finds Employer Failure to Prove that Absence of Name on Notice of Filing is Immaterial(116 KB – 4/29/2009)
    BALCA upholds the PERM application denial. The employer asked for equitable relief. BALCA finds evidence was needed that the absence of the employer’s name would not be material to the effectiveness of the Notice of Filing, even if the company president’s name and phone number were listed. Matter of Stone Tech Fabrication, 2008-PER-00187 (1/5/09).
  • BALCA Does Not Excuse Employer’s Error in Listing Notice of Filing Date(93 KB – 4/29/2009)
    BALCA upholds denial for failure to post a notice of filing between 30 and 180 days before the application filing. Finds a “mere statement” from the attorney that that the notice of filing date listed on the 9089 was an error is insufficient to establish that it was a clerical error. Matter of Soule, Blake & Wechsler, Inc., 2008-PER-00184 (3/31/09).
  • BALCA Holds Certification Cannot be Denied for Lack of Kellogg Language(71 KB – 4/21/2009)
    BALCA vacates and orders certification of a PERM application for a Computer Systems Analyst. Concludes case is governed by Federal Insurance Co., which held that certification could not be denied based on the failure to write the Kellogg language on the ETA 9089. Matter of Kpit Infosystems Inc., 2009-PER-00075 (2/25/09).
  • BALCA Rejects Argument that Regulation Prevents CO from Denying Audited Application(103 KB – 4/17/2009)
    BALCA finds 20 C.F.R. § 656.20(b) relates to failure to provide documentation in an audit response, not to the CO’s authority to review that documentation to determine whether it complies with the regulations. Also rejects argument that absence of the CO’s address was insignificant to application. Matter of Aramark Corporation, 2008-PER-00181, 1/8/09.
  • BALCA Finds There is No “On-the-Job-Site-Hire” Exception to PERM Requirements(104 KB – 4/16/2009)
    BALCA upholds the denial of a PERM application for failure to complete several sections of the 9089. Employer argued that reason for failure to provide a start date for the job order and failure to run Sunday print advertisements was that “This was an on-the-job-site hire.” Matter of Franco’s Construction, 2008-PER-00128 (1/6/09).
  • BALCA Finds Prevailing Wage Determination Expiration Date is Imprecise(94 KB – 4/13/2009)
    BALCA upholds denial of PERM application, finds that Employer’s response of “N/A” to 9089 Section F-8 regarding the expiration date of the validity period of the PWD is nonsensical. Also finds, that Employer’s provision of the year 2004 in response to the request for review was too imprecise. Matter of Choe, 2008-PER-00145 (1/5/09).
  • BALCA Finds Employer Must Include Name in Job Ad, Fax Number is Insufficient(87 KB – 4/13/2009)
    BALCA affirms denial of PERM application. Employer’s name was excluded in job advertisement, but fax number was included. BALCA finds fax does not identify employer for applicants, also finds inclusion of rate of pay on 9089 does not cure failure to include the rate of pay on the Notice of Filing. Matter of Dunkin Donuts, 2008-PER-00135 (1/5/09).
  • BALCA Upholds Denial, Employer Misinterpreted 30 Day Requirement(85 KB – 4/2/2009)
    BALCA finds that the Employer violated the regulation by filing its PERM application less than 30 days after the SWA job order ended. Notes it is not sufficient that the 30 day duration of the SWA job order ended prior to filing the application. Matter of British European, 2008-PER-00109 (1/5/09).
  • BALCA Holds Denial for N-3 Omission on Mailed-in 9089 is Capricious(135 KB – 4/1/2009)
    BALCA reverses denial of a PERM application deemed incomplete because of the employer’s failure to date section N-3 of the 9089 which was mailed in. It found that the CO failed to articulate a sufficient reason that the omission was material to the review of the substance of the application. Matter of Yasmeena Corporation, 2008-PER-00073 (11/14/08).
  • Employer Fails to Establish Compliance with Regulatory Requirements for Newspaper Advertisements(83 KB – 3/31/2009)
    BALCA upholds the CO’s denial of the PERM application for a horse trainer. Although the tear sheets included in the request for reconsideration established that advertisements were run on two Sundays, they also evidenced a fundamental lack of compliance with the regulatory requirements for newspaper advertisements. Matter of Levine, 2008-PER-00080 (12/12/08).
  • BALCA Upholds Denial of PERM Application for Lack of Valid FEIN Prior to Change in Ownership(110 KB – 3/31/2009)
    BALCA holds that when application is deficient when filed because the sponsoring employer does not have a valid FEIN, the CO is not required to permit the application to be perfected based on a change in ownership. After the application was filed, an employer with a FEIN number was substituted in. Matter of WWM, Inc., 2008-PER-00064 (10/28/08).