Board of Alien Labor Certification Appeals (BALCA)

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BALCA Grants AILA’s Motion to Appear as Amicus Curiae in Matter of Syracuse University(57 KB - 8/24/2010)
BALCA granted a motion for extension of time to file briefs and AILA’s motion to appear as amicus curiae in a case involving recruitment requirements for a university professor. Matter of Syracuse University, 2010-PER-00772 (8/19/10). AILA Doc. No. 10082465.
BALCA Grants En Banc Review, Vacates Matter of East Tennessee State University(98 KB - 8/24/2010)
BALCA granted en banc review and vacated the denial of a case involving a professor that held that the “more qualified” standard under 20 CFR 656.18 does not apply where the school uses basic recruitment under 656.17. Matter of ETSU, 2010-PER-00038 (8/18/10). AILA Doc. No. 10082464.
BALCA Affirms Denial of Labor Certification for University Professor(93 KB - 8/9/2010)
BALCA affirmed the denial of a case involving a university professor, finding that the “more qualified” standard under 20 CFR 656.18, does not apply where the school elects to use the basic recruitment process under 656.17. Matter of ETSU, 2010-PER-00038 (7/12/10). AILA Doc. No. 10080970.
BALCA Affirms Denial Finding Recruitment Report Inadequate Proof of Web Advertising(83 KB - 7/8/2010)
BALCA affirmed denial, finding that standing alone, a signed recruitment report does not provide adequate documentation that employer placed an advertisement on its website or on a job search website. Matter of Transatlantic Systems, Inc., 2009-PER-00414 (6/29/10). AILA Doc. No. 10070867.
BALCA Affirms Denial, Finding Employer Statement Insufficient Documentation of Minimum Requirements(88 KB - 7/8/2010)
BALCA affirmed denial, finding employer’s statement that the foreign worker meets its minimum requirements, does not constitute adequate documentation that the alien does meet those requirements. Matter of Virginia Carolina Construction, 2009-PER-00416 (6/29/10). AILA Doc. No. 10070866.
BALCA Affirms Denial Finding Requirement in Ad Less Favorable Than ETA 9089(94 KB - 5/25/2010)
BALCA affirmed denial, finding employer’s advertisements listing travel requirement for position were less favorable than conditions listed in the ETA 9089, which did not list the requirement. Matter of Xpedite Technologies, 2010-PER-00105 (04/07/10). AILA Doc. No. 10052573.
BALCA Affirms Denial Finding Denial without Prior Notice of Grounds does Not Violate Regulations(80 KB - 5/25/2010)
BALCA affirmed denial, finding denial without prior notice of the grounds for denial did not violate the regulations. The PERM regulations eliminated the NOF/Rebuttal procedure found in the pre-PERM regulations. Matter of WP Realty Inc., 2010-PER-00146 (04/07/10). AILA Doc. No. 10052572.
BALCA Reverses H-2B Denial Finding CO Misinterpreted Applicant's Statement Regarding Experience(2095 KB - 5/6/2010)
After setting an expedited briefing schedule and allowing faxed document submission, BALCA reversed H-2B denial, finding that CO misinterpreted applicant’s statement regarding experience. Matter of Margaret Pirovano, 2010-TLN-00059 (4/30/10). Courtesy of Jeff Devore. AILA Doc. No. 10050662.
BALCA Affirms Denial for Failure to Show Business Necessity(156 KB - 5/4/2010)
BALCA affirmed denial, finding petitioner’s arguments failed to address why business necessity justifies an experience requirement double the amount determined by the O*Net Job Zone for “cook” position. Matter of Robertos Mexican Food, 2009-PER-00206 (03/31/10). AILA Doc. No. 10050465.
BALCA Affirms Denial for Failure to Prove Business Necessity for Excessive Experience Requirement(115 KB - 4/19/2010)
BALCA affirmed denial, finding employer failed to show business necessity where the requirement of a B.A. and 3 years experience in job offered for a “Senior Software Engineer” position exceeded assigned Job Zone SVP. Matter of Wissen, Inc., 2009-PER-00405 (04/15/10). AILA Doc. No. 10041930.
BALCA Affirms Denial, Finding Undated Web Site Document Deficient as Proof(106 KB - 4/19/2010)
BALCA affirmed denial, finding that documentation provided with audit response was deficient as proof of the dates of a company web site recruitment effort because it did not show dates of posting. Matter of PSI Family Services, Inc., 2010-PER-00097. (4/16/10). AILA Doc. No. 10041978.
BALCA Affirms Denial, Finding Failure to Provide Adequate Documentation(101 KB - 3/31/2010)
BALCA affirmed denial, finding that letter to publisher asking for ad to be placed together with proof suggesting payment for ad, does not, in itself, prove ads were run in compliance with regulations. Matter of Natural Nature, Inc., 2009-PER-00337 (3/30/10). AILA Doc. No. 10033131.
BALCA Reverses, Finding Compliance with Requirements for Employee Referral Program(125 KB - 3/31/2010)
BALCA reversed denial and granted labor certification finding employer was in compliance with requirements for an employee referral program and met all of the required steps in the PERM process. Matter of Clearstream Banking S.A., 2009-PER-00015 (3/30/10). AILA Doc. No. 10033130.
BALCA Affirms Denial Where Employer Listed Regional Office at ETA Rather Than CO at NPC Address(187 KB - 3/5/2010)
BALCA en banc affirmed the CO’s denial, finding employer listing of the address of the regional office at ETA rather than CO at NPC was not harmless error. AILA filed an amicus brief in this case. Matter of Hawai’i Pacific University, 2009-PER-00127 (3/2/10). AILA Doc. No. 10030531.
BALCA Affirms Denial Finding Requirement in Ad Less Favorable Than ETA 9089(89 KB - 3/3/2010)
BALCA affirmed the CO’s denial, finding employer’s advertisements listing requirement of background check were less favorable than conditions listed in the ETA 9089, which did not list the requirement. Matter of Noll Pallet & Lumber Co., 2009-PER-00082 (12/16/09). AILA Doc. No. 10030362.
BALCA Affirms Denial Finding Failure to Post Job Order for 30-Day Period(114 KB - 3/3/2010)
BALCA affirmed the CO’s denial, finding employer did not place job order with SWA serving area of intended employment for a period of 30 days. Lam Garden Chinese Restaurant cited in footnote 4. Matter of Monir Attar, Inc, Inc. 2009-PER-00236 (12/17/09). AILA Doc. No. 10030361.
BALCA Affirms Denial Finding Business Necessity for Language Requirement Not Established(92 KB - 3/3/2010)
BALCA affirmed the CO’s denial, finding that the business necessity for a foreign language requirement was not established for the position of a truck driver delivering to Mexico. Matter of UMC Logistics Inc., 2009-PER-00188 (12/17/09). AILA Doc. No. 10030360.
BALCA Affirms Denial Where Wage on Job Order Lower Than Prevailing Wage(91 KB - 3/2/2010)
BALCA affirmed the CO’s denial, where the low end of the wage range stated in the State Workforce Agency (SWA) job order was below the prevailing wage determination. Matter of Marcel Cleaners Inc., 2009-PER-00395 (02/16/10). AILA Doc. No. 10030268.
BALCA Affirms Denial, Finding CO Not Required to Review BNL Letter First Submitted with Request for Reconsideration(81 KB - 1/4/2010)
BALCA affirmed the Denial, finding that because a Request for Reconsideration may not include “evidence not previously submitted,” the CO was not required to review the Business Necessity Letter first submitted in the Request for Reconsideration. Matter of Dr. Haig Rickerby Dental Office, 2009-PER-00197 (10/30/09). AILA Doc. No. 10010467.
BALCA Reverses, Finding Denial Based on Omissions Arbitrary and Capricious Absent Explanation by CO(83 KB - 1/4/2010)
BALCA reversed and found a denial based on omissions arbitrary and capricious, absent the COs explanation of the materiality of the omissions. However, the Board did emphasize the failure to file a complete application is a ground for denial. Matter of Ben Pumo, 2009-PER-00040 (10/29/09). AILA Doc. No. 10010465.
BALCA Vacates Denial and Returns to CO based on imprecision of Audit Request(107 KB - 1/4/2010)
BALCA vacated the CO’s denial and returned it to the CO for further processing, finding the audit request was not precise in its reason for requesting a PWD, and the employer may have assumed a new PWD was being requested, not the one submitted prior to the filing of the application. Matter of Galaxy Studios, Inc., 2009-PER-00221 (10/29/09). AILA Doc. No. 10010464.

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Board of Alien Labor Certification Appeals (BALCA)