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BALCA Overturns Denial, Confirms Employer Need Not Abide by “Most Likely” Standard for Local/Ethnic Ad

BALCA overturned the Certifying Officer’s denial of the labor certification, finding that the regulations that control placement of Sunday ads versus local and ethnic ads differ, and that the employer was not required to place the local ad in the newspaper “most likely to bring responses.”

BALCA Applies Reasoning from Smartzip and Overturns H.14 Denial

Applying the reasoning from Smartzip Analytics, BALCA reversed the Certifying Officer’s denial of the labor certification, finding that an application cannot be deniedon its face based on a failure to provide a duration requirement for special skills listed in Section H.14 of the ETA Form 9089, short of legally sufficient notice of a requirement to do so.

BALCA overturns Denial main

Applying the reasoning from Matter of A Cut Above Ceramic Tile, BALCA reversed the Certifying Officer’s denial of the labor certification, finding that an employer is not required to retain or provide proof of publication of its State Workforce Agency (SWA) job order which can be sufficiently documented by listing the start and end dates of the job order on the ETA Form 9089.

BALCA Reverses Denial due to due process

BALCA reversed the Certifying Officer’s denial and remanded the matter for certification where DOL had faulted the employer for not listing a relocation requirement in recruitment advertising and on the ETA Form 9089 for a position with a primary work site “and various unanticipated locations throughout the U.S.” The employer had relied on the 1994 Barbara Farmer Memo, which BALCA agreed makes no distinction between travel and relocation. BALCA further opined that it was not fundamentally fair to require that the possibility of relocation be specifically disclosed in the advertisement and application in absence of notice or guidance, particularly when the organized immigration bar has been pressing OFLC for years to clarify issues related to “roving” employees.

BALCA Finds PERM Received Two Days After Recruitment Expired Was Timely Submitted

Where recruitment expired on a Saturday but the PERM application filed by mail was not received until Monday, BALCA overturned the Certifying Officer’s denial of the labor certification, finding that sufficient documentation was submitted to prove the date of mailing, and thus that the PERM application was timely filed.

BALCA Upholds Denial of Second PERM Filing Where First PERM Was Pending BALCA Review

BALCA affirmed the Certifying Officer’s denial of the labor certification, finding that the employer filed two PERM applications with “substantially comparable job duties,” and holding that an employer may not file a new PERM application for the same foreign worker for the same job opportunity when the first application is pending BALCA review.

BALCA Upheld SR Denial Where Employer Claimed Notice was Not Received

BALCA affirmed the denial of a labor certification undergoing supervised recruitment (SR) where the employer claimed it did not receive the revised draft advertisement. BALCA noted that the record did not reflect a change of address for the employer or attorney during the relevant time period. Further, the correction letter was addressed to the same mailing address for the employer and attorney as the notification and the denial, which were received.

BALCA Affirms Denial Where Employer’s Agent Signed Recruitment Report

BALCA upheld the denial of the labor certification where the recruitment report was signed by an agent, rather than the employer, in direct violation of 20 CFR §656.17(g)(1), which requires either the employer or its representative to sign the recruitment report.

BALCA Declines to Penalize Employer for Timing Inconsistency in 656.17(e)(2)

 

Where the employer filed the ETA Form 9089 within six months of the SWA job order, but notwithin 180 days, BALCA overturned the Certifying Officer’s denial, finding that it was unfair to punish the employer because of a potential conflict between the terms “6 months” and “180 days” found at 20 CFR §656.17(e)(2), which provides the timing requirements for when an employer must place an SWA job order and file an application for a nonprofessional occupation.

BALCA overturns denial of Labor Cert

BALCA overturned the Certifying Officer’s denial and ordered that the labor certification be granted, holding that Notice of Filing (NOF) regulations only require the NOF to contain information specific enough to apprise U.S. workers of the job opportunity, and do not require employers to run advertisements enumerating every job duty, job requirement, and condition of employment.

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