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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 En Banc Panel Resolves Split on 20 CFR §656.40(c)

The en banc panel affirmed the CO’s denial finding that the term “begin the recruitment” in 20 CFR 656.40(c) refers to the commencement of the first recruitment step, not to the commencement of any individual recruitment step.

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