Board of Alien Labor Certification Appeals (BALCA)

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• BALCA Remands Because Pro Se Employer Likely Found NOF Confusing (97 KB - 8/22/2008)
  BALCA vacates and remands a traditional labor certification application for a “houseworker, general,” because of the employer’s pro se status and the NOF’s potential for confusing a person unfamiliar with labor certification regulations and requirements. Matter of Ferraro, 2008-INA-00054 (2/11/08).



• BALCA Finds Employer Must Provide Evidence Despite Inapplicability of NOF Boilerplate Language (93 KB - 8/22/2008)
  BALCA upholds denial of a traditional labor certification application for a domestic household “day worker.” It found that the NOF was issued using boilerplate language regarding ability to pay, which was not applicable to a household, but it was unreasonable for the employer to ignore the request entirely. Matter of Mcham, 20008-INA-00044 (2/11/08).



• BALCA Remands as Employer Was Not Given Opportunity to Readvertise (120 KB - 8/21/2008)
  BALCA finds that an application that was before the CO to request RIR should have been referred for regular processing because of unduly restrictive job requirements. Instead, NOF was written to preclude the employer from readvertising if the business necessity argument failed. Matter of Atlanta Oriental Food Wholesale Co., 2008-INA-00046 (2/11/08).



• Employer Unable to Prove Business Necessity and Actual Minimum Requirements (101 KB - 8/21/2008)
  BALCA affirms denial of a traditional labor certification filed for a cabinet maker, finding that the contention of job misclassification was not timely raised, and that the employer failed to provide specific documentation regarding business necessity and actual minimum requirements. Matter of Virginia Millwork, Inc., 2008-INA-200007 (2/11/08).



• BALCA Finds it “Unfortunate” that Employer Disbanded Since Application Filing (84 KB - 8/20/2008)
  BALCA upholds denial of traditional labor certification filed for a “Public Relations Representative” because the sponsoring company disbanded during the years that it took DOL to review the labor certification. The application was filed in 2001, and the NOF was issued in 2007. Matter of Camelback Wedding Center, 2008-INA-00012 (1/23/08).



• Denial of Domestic Worker PERM Case Upheld (106 KB - 8/20/2008)
  BALCA upholds denial of PERM application for a “housekeeper/child care nanny” because recruitment efforts did not occur within the window required in 20 CFR § 656.17(e), the beneficiary failed to meet the actual minimum requirements, and the employer failed to provide an executed employment contract. Matter of Pena, 2007-PER-00116 (6/4/08). AILA Doc. No. 08082063.



• Employer Tries to Blame DOL Data Entry Clerk for Incomplete 9089 (94 KB - 7/29/2008)
  BALCA affirms denial of incomplete PERM application. Employer asserts section K-8 was left blank because a DOL data entry clerk made a “scrivener’s error.” BALCA finds that an assertion without supporting evidence is insufficient to carry the employer’s burden of proof. Matter of North County Cooling, 2007-PER-00093 (6/4/08).



• BALCA Concludes Private Household Must Have FEIN Number (101 KB - 7/28/2008)
  BALCA affirms denial of PERM application because employer did not fill out C-6, C-7, F-4 and K-5, rendering the 9089 incomplete. As a private household, employer entered “none” in C-7. BALCA concludes that a private household must obtain a FEIN number from the IRS. Matter of Carmen Lee, 2007-PER-00104 (6/4/08).



• Employer Recruits Prior to 180 Days, Faults Fed-Ex for Delay in Filing (92 KB - 7/28/2008)
  BALCA finds PERM recruitment conducted more than 180 days before filing of 9089. Form 9089 mailed overnight, but not received and date stamped until a couple days later. Employer failed to provide evidence to support assertion of overnight mailing. Matter of First Truck Services, 2007-PER-00091 (3/28/08).



• Employer May Not Require Bachelor’s, But Appendix A Job Requires Professional Recruitment (104 KB - 7/21/2008)
  BALCA upholds denial of PERM application filed for an Appendix A “finance manager” at a used car dealership, underscoring that an Appendix A occupation requires use of the professional recruitment standard, even if the employer does not require a bachelor’s for the position. Matter of A One Auto Center, 2008-PER-00043 (6/17/08).



• BALCA Finds Employer Cannot Substitute Agent’s FEIN Number (87 KB - 7/14/2008)
  BALCA upholds denial of PERM application, finding that an employer cannot provide an agent’s FEIN number in lieu of its own in Section C-6 of Form ETA 9089. Matter of Pacific Molding, Inc., 2008-PER-00042 (6/12/08).



• BALCA Clarifies that 30 Days Must Pass After Closing of SWA Job Order Prior to Filing (76 KB - 7/10/2008)
  BALCA upholds denial of PERM application because the employer did not allow 30 days to pass after the closing of the SWA job order before filing. Matter of the Nut Club LTD., 2008-PER-00049 (6/12/08).



• BALCA Finds Requested Docs are Relevant to Issue of Bona Fide Job Offer (129 KB - 7/10/2008)
  BALCA affirms denial of traditional labor certification application, finding that the employer failed to establish that the documentation requested by the CO was not reasonably obtainable. Employer argued that its “financials” were beyond the authority of the DOL to look into. Matter of Meisner’s Take Out, 2008-INA-00066 (1/16/08).



• NLRB Judge Dismisses Complaints on Employer Changes in No-Match Policy (112 KB - 5/22/2008)
  An NLRB judge, stating that the company had a duty to follow up on no-match letters even before the recent DHS rulemaking, dismisses complaints that employer violated the National Labor Relations Act by refusing to bargain about a more restrictive no-match letter policy. Unite Here Local 26 v. ARAMARK, 1-CA-43486, 657, 658 (NLRB 5/13/08).



• No Bonafide Job Opportunity Exists if Some Drivers to Remain Unsalaried (205 KB - 5/29/2008)
  BALCA upholds denial in RIR case. Employer failed to establish that the 196 applications for limo drivers represented bona fide job opportunities open to U.S. workers, as the rest of its 254 drivers work on a contract basis. Matter of Elite Limousine Plus, Inc. 2007-INA-00070-266 (5/22/08).



• U.S. Applicants Unlawfully Rejected Based on Presumptions in Traditional Labor Cert. Case (92 KB - 5/22/2008)
  BALCA upholds denial, finds employer unlawfully rejected U.S. applicants based on opinion that an overqualified applicant would become bored in the job, assumption that an applicant would not be wiling to relocate, speculation about an applicant’s reliability and an applicant’s accented speech. Matter of Express Line Corporation, 2007-INA-00236 (3/25/08).



• BALCA Finds Employer’s Request of Additional Documents Has “Chilling Effect” on U.S. Applicants (97 KB - 5/19/2008)
  BALCA affirms the denial of a traditional labor certification application because the employer did not exercise good faith recruitment, and failed to document lawful job-related reasons for rejecting U.S. applicants. Matter of Gaynor Gardens Homes, Inc., 2007-INA-00269 (3/24/2008).



• Employer Doesn’t Require Bachelor’s, but BALCA Finds Professional Recruitment Mandatory for Appendix A Job (120 KB - 5/16/2008)
  BALCA affirms denial of PERM application, noting that an occupation that appears on Appendix A requires the employer to use the professional recruitment standard, regardless of whether the employer has required a bachelor’s degree for its particular position, or the PWD. Matter of EPI Limited Partnership, 20008-PER-00004 (4/28/08).



• Denial Upheld as Employer Could Not Substantiate that Error Was Inadvertent (110 KB - 5/16/2008)
  BALCA affirms denial of PERM application, where the employer did not carry out the required recruitment for a professional occupation. The employer claimed an inadvertent error in the SOC/O*Net code, but failed to provide the prevailing wage determination for the nonprofessional position. Matter of Federal Medical Group, Inc., 2008-PER-00012 (4/28/08).



• Original Priority Date Retained in Amended Application Refiled Under PERM (83 KB - 5/14/2008)
  BALCA reverses and the original priority date is retained in the refiling of a labor certification application under PERM. The 750A and 9089 were not identical, but it was shown that the amendments were made to the pre-PERM application prior to its withdrawal for the purpose of refiling. Matter of Select Imports, Inc., 2008-PER-00040 (4/28/08).



• BALCA Upholds Denial of Incomplete PERM Application (75 KB - 5/9/2008)
  Although the employer submitted a new ETA Form 9089 on appeal, supplying most of the information omitted in the original application, BALCA upheld the denial noting that the appropriate remedy is for the employer to file a new application. Matter of 5th Avenue Landscaping, Inc., 2008-PER-00027 (2/11/08).



• BALCA Upholds Denial Finding Employer and Beneficiary Are One and the Same (109 KB - 2/14/2008)
  BALCA upholds denial of pre-PERM labor certification application, concluding that a bona fide job opportunity open to U.S. workers did not exist, as the beneficiary and the employer were one and the same. The CO had found it unlikely that the employer would displace himself in his own business. Matter of ATI Consultores, 2007-INA-00064 (2/11/08).



• BALCA Finds Beneficiary Gained Experience on the Job (85 KB - 2/13/2008)
  BALCA affirms the denial of RIR case because the employer did not demonstrate that the beneficiary had the requisite experience prior to being hired, or that it could now hire a worker with less than the minimum qualifications stated on the ETA 750A. Matter of Professional Staffing Services of America, 2007-INA-00058 (1/23/08).



• BALCA Finds Groundskeeper Is Not Year-Round Position (86 KB - 2/13/2008)
  BALCA upholds denial of pre-PERM labor certification application because the record established that the incumbent foreign national had been working less than 12 months of the year in full-time employment. Matter of Rankin Landscaping, Inc., 2007-INA-00057 (1/16/08).



• BALCA Finds Lack of Evidence that Job Was Permanent & Full-Time Fatal to Application (98 KB - 2/13/2008)
  BALCA finds pre-PERM labor certification application was properly denied because the employer failed to show that the position was full-time and year-round. It concludes that a letter from the company accountant was an inadequate substitute for the requested payroll records. Matter of Twin Industries, 2007-INA-00270 (1/16/08).



• BALCA Finds Employer Rejected Qualified U.S. Applicants (98 KB - 2/13/2008)
  BALCA affirms CO’s denial of a pre-PERM labor certification application, finding that the employer rejected U.S. applicants who met the minimum requirements specified for the position on the ETA 750A. Matter of Houston Music Institute, 2007-INA-00271 (1/16/08).



• BALCA Upholds Denial for Lack of Proper Evidence of Ability to Pay Wage (112 KB - 2/13/2008)
  BALCA upholds denial of pre-PERM labor certification application, rejecting employer’s argument that ability to pay is an issue only USCIS can determine. Also finds employer failed to establish a bona fide job opportunity. Matter of South Valley Drywall, Inc., 2007-INA-00272 (1/16/08).



• BALCA Finds Application Inherently Implausible (136 KB - 2/12/2008)
  Employer submitted documentation that it was able to pay the proffered wage, but did not show whether it had any employees. BALCA concludes the employer did not establish that it was offering a bona fide, full-time position, and affirmed CO’s denial of the pre-PERM labor certification application. Matter of Factor’s Row, LLC, 2007-INA-00034 (1/16/08).



• BALCA Finds Employer Unable to Establish Worksite or Bona Fide Job Opportunity (105 KB - 2/12/2008)
  BALCA upholds the denial of an RIR case, drawing a distinction between a “virtual office” for a job without a fixed worksite and a fictionalized location for a job offering. It finds the pre-PERM labor certification application does not warrant a remand for supervised recruitment. Matter of PR Consultants Inc., 2007-INA-00066 (1/16/08).



• BALCA Affirms Denial for Lack of Job Order (79 KB - 2/12/2008)
  BALCA finds that employer’s lack of awareness that a job order was required is insufficient to overcome the PERM application deficiency. Matter of Beck AG Operations Inc., 2008-PER-00005 (12/18/07).



• BALCA Finds Application without SWA Job Order Dates Incomplete (92 KB - 2/12/2008)
  BALCA upholds CO's denial of PERM application because the employer failed to enter the dates of the SWA job order on Form ETA 9089, leaving I.c.6 and I.c.7 blank. Matter of Dr. Afshin Abdollahi, DMD, Inc., 2008-PER-00009 (12/17/07).



• BALCA Finds Failure to Complete H-6A Renders Application Incomplete (83 KB - 2/11/2008)
  BALCA upheld the denial of a PERM application for the employer’s failure to complete H-6A on the number of months of experience that were required. Matter of Best Manufacturing, Inc., 2007-PER-00080 (12/19/07).



• BALCA Affirms Denial of PERM Application Filed Too Early (87 KB - 2/11/2008)
  BALCA affirms denial of a PERM application filed less than 30 days after the end of the SWA job order. Although the job order had not produced any new U.S. applicants at the end of the 30 day period, BALCA noted that the requirement is not a mere formality. Matter of Syncsort Inc., 2007-PER-00067 (12/18/2007).



• Employer Misconstrues Regulations on Labor Certification Filing Window (77 KB - 2/11/2008)
  BALCA finds that the employer filed the PERM application too early, believing that an application could be filed 30 days after the SWA job order started, rather than 30 days after it ended. Matter of Oyassan, 2007-PER-00069 (12/18/07).



• BALCA Finds Filing of Labor Cert. Seven Days After End of Job Order Was Substantive Violation (86 KB - 2/11/2008)
  BALCA upholds the denial of a PERM application, finding that the employer’s filing of the labor certification application less than 30 days after the end of the job order was not a harmless clerical error, but a substantive violation. Matter of Constructions Pros Corp., 2007-PER-00077 (12/18/07).



• BALCA Upholds Denial of Application Filed Too Soon After Conclusion of Job Order (73 KB - 2/11/2008)
  BALCA upholds denial of PERM application because employer filed the ETA 9089 less than 30 days after the conclusion of the SWA job order. Matter of Texas Storm of Houston, 2007-PER-00089 (12/18/07).



• Employer Cannot Use SSN as Substitute for FEIN on ETA 9089 (76 KB - 2/8/2008)
  Upholding CO’s denial of PERM application, BALCA finds that pursuant to 20 C.F.R. § 656.3 an employer must possess a valid FEIN. Matter of Discolo, 2007-PER-00108 (12/17/07).



• BALCA Finds that Landscape Gardener Position is Seasonal (88 KB - 1/9/2008)
  BALCA upholds CO’s denial of RIR case in which the employer fails to establish that the position for a Landscape Gardener is a full-time permanent position. Matter of Odonata Corp., 2007-INA-00007 (12/10/07).



• BALCA Finds that Required Experience and Duties Render “Manager” Level II (110 KB - 1/8/2008)
  BALCA concludes that regardless of O*NET job classification at issue, position is properly classified as Level II rather than Level I in pre-PERM labor certification application. It upholds CO’s denial, as the Employer failed to meet the prevailing wage. Matter of Plaza Express Car and Limo Service, 2007-INA-00008 (12/10/07).



• BALCA Finds Requirements Cannot be Implied and Interview Process Must be Timely (136 KB - 1/8/2008)
  BALCA upholds denial of a pre-PERM labor certification application for a rug repairer, rejecting Employer’s contention that undisclosed requirements were implied in the job description. Also finds that delayed interview process shows less than a good faith effort to recruit. Matter of Bistany’s Oriental Rug Dealers, 2007-INA-00009 (12/10/07).



• BALCA Finds Employer Failed to Make Good Faith Effort to Recruit (122 KB - 1/7/2008)
  BALCA concludes that evidence of Employer’s one minute or less telephone contact with applicants is inadequate to show good faith effort to recruit, upholding CO's denial of pre-PERM application. Matter of El Jalisco Mexican Restaurant, 2007-INA-00010 (12/10/07).



• BALCA Finds Employer’s Amendments to the Job Requirements Untimely (112 KB - 1/7/2008)
  BALCA upholds denial of a pre-PERM labor certification application filed for a hotel manager, finding that the amendments to the application proposed after it was denied were a fundamental change in the job requirements. Matter of Century Wilshire Hotel, 2007-INA-00022 (10/15/07).



• BALCA Upholds Denial for Failure to Answer H-6A (83 KB - 1/4/2008)
  BALCA upheld the CO’s denial of a PERM application for Employer’s failure to complete Section H-6A. Attorney argued that his records show that the application was properly completed, but the appeal file supports the CO’s finding. Matter of Best Manufacturing, 2007-PER-00080 (12/19/07).



• BALCA Upholds Denial of Application Filed Less than 30 Days After End of Job Order (85 KB - 1/4/2008)
  BALCA finds that the filing of a PERM application less than 30 days after the end of the SWA job order is a substantive violation. That fact that the job order did not appear to produce qualified candidates after the 30 days had elapsed was insufficient to excuse the violation. Matter of Golden Bridge Restaurant, 2007-PER-00099 (12/18/07).



• Submission of Forms without DOL Logo Not Fatal to PERM Application (92 KB - 1/4/2008)
  BALCA finds CO improperly refused to reconsider denial of PERM application after Employer presented evidence that recruitment would have been timely, but for its error of submitting forms without the DOL logo. Matter of Subhashini Software Solutions, 2007-PER-00043-46 (12/18/07).



• BALCA Finds that a FEIN is Needed to Employ a Domestic Worker (81 KB - 1/3/2008)
  BALCA upholds CO denial of PERM application, concluding that although a household may not be a business in a commercial sense, it must nevertheless obtain an FEIN to verify that it is a bona fide business entity and able to legally employ a domestic worker. Matter of Alpert, 2007-PER-00109 (12/17/07).



• BALCA Upholds PERM Denial for Lack of FEIN (86 KB - 1/3/2008)
  BALCA finds that the Employer’s non-compliance with the requirement of having a FEIN at the time of the labor certification application filing is a substantive omission. It concludes that the CO was correct in declining the Employer’s request to remedy the deficiency. Matter Bugajski-Lang, 2007-PER-00079 (12/17/07).



• BALCA Upholds Denial for Failure to Answer H-8 and H-10A (85 KB - 1/3/2008)
  BALCA concludes that failure to answer Sections H-8 and H-10A were not “slight omissions” and constitute grounds for denial. Matter of Subhashini Software Solutions, 2007-PER-00039-53 (12/10/07).

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