LexisNexis® Legal Newsroom
BALCA on the Home Office Option

" In Siemens Water Technologies Corp. , 2011-PER-00955 (July 23, 2013), the employer filed a PERM application for the position of Field Service Engineer. In all its recruitment the employer listed Houston, Texas as the location for the job opportunity and conducted recruitment from that location...

BALCA, En Banc (5-0,) Vacates H-2B Supplemental PWDs: Matter of Island Holdings

"The Department’s H-2B regulations do not require an employer to increase the wage it offers and pays its H-2B workers after the Department has approved and certified its Application for Temporary Employment Certification. It was an abuse of discretion for the Certifying Officer to affirm...

News Excerpts From The Jan. 1, 2014, Bender's Immigration Bulletin

EOIR Issues New Guidance Following Settlement of Asylum Clock Suit | On December 2, 2013, the Office of the Chief Immigration Judge issued two memoranda concerning implementation of the employment authorization “clock” for asylum applicants in removal proceedings. The issuance of the memoranda...

Counsel for Island Holdings Responds to DOL Position

"Neither employers nor the Department may flout a BALCA decision. We look forward to receiving your written confirmation that H-2B employers will be receiving timely notification from the NPWC that the SPWDs never became effective and were vacated on December 3, 2013; that DOL will defend BALCA’s...

News Excerpts From the Jan. 15, 2014, Bender’s Immigration Bulletin

Labor Department to Delay Implementation of BALCA Ruling in Island Holdings | On December 20, 2013, the Labor Department announced that it would seek review of the ruling issued by the Board of Alien Labor Certification Appeals in Matter of Island Holdings LLC , which vacated supplemental prevailing...

Does BALCA Speak For DOL? - Reflections on Island Holdings: Gary Endelman & Cyrus D. Mehta

" In the ongoing litigation over the authority of the Department of Labor (DOL) to promulgate H-2B prevailing wage methodology in the Third Circuit, Louisiana Forestry Ass’n v. Secretary of Labor , No. 12-4030, the DOL wrote a letter stating that the Board of Alien Labor Certification Appeals’...

BALCA on Rejection of U.S. Worker: Matter of Federal Home Loan Mortgage Corp.

"The Employer argues the laid-off worker’s Economics degree is not substantially equivalent to a degree in Computer Science, Finance, or Accounting. ... While the CO provides no data or information specific to the University of Rochester’s degree programs to support his contention, we...

BALCA on Form 9089: Matter of The Clariden School

"We have reviewed the Form 9089, and find that it does not have any obvious free form space for clarifying why a person would necessarily have at least a Bachelor’s degree to have obtained an AMI certification. But more importantly, we have found nothing on the face of the Form 9089 or its...

BALCA on Infeasibility-to-Train: Matter of Kentrox

"Employer presented a statement from its Vice President of Engineering, Mark Tinker, in response to the audit notification that addressed both the business necessity of its educational and experience requirements, and the infeasibility to train a new worker for the instant position. ... It is clear...

BALCA on Additional Recruitment, Advertising: Matter of Symantec, En Banc

"This appeal ... presents the issue of whether a Certifying Officer may deny an Application for Permanent Employment Certification (ETA Form 9089) for a position involving a professional occupation if one of the “additional” recruitment steps does not comply with the advertising content...

BALCA EN BANC ON WHETHER THE ADDITIONAL RECRUITMENT STEPS FOR PROFESSIONAL OCCUPATIONS MUST COMPLY WITH 656.17(f)

"For PERM practitioners, what is the practical take away lesson from Symantec? Does the fact that 656.17(f) does not apply to the additional forms of recruitment mean that these additional forms of recruitment can indeed contain job requirements or duties which exceed the job requirements or duties...

PERM BALCA Procedure Change on Oct. 27, 2014

"As of October 27, 2014, the Atlanta National Processing Center has changed its process and will no longer automatically forward to BALCA all PERM case Requests for Reconsideration where the original case decision was upheld. Rather, a Notice of Decision will be issued when the case is upheld, and...

BALCA Says Economic Benefits Should Be Listed in PERM Recruitment - Cora-Ann V. Pestaina

"PERM is an exacting process. We’ve read those words over and over in various Board of Alien Labor Certification Appeals (BALCA) decisions. The Department of Labor (DOL) Certifying Officers (CO) and BALCA continually use those words to justify the most heartless denials; callously brushing...

BALCA Grants Labor Cert...Five Years Later - Matter of Computer Sciences Corp.

"On February 4, 2010, the Employer filed an Application for Permanent Employment Certification (ETA Form 9089) for a Program Office Senior Manager position. ... In the instant case, the CO denied certification based on the Employer’s inclusion of the language, “Willingness to travel;...

BALCA on Context, SWA Job Orders: Matter of Microsoft

"Based on the foregoing, we find that the Employer’s NOF does not contain a job requirement that exceeds that which is on the ETA Form 9089, because it is clear within the overall context of the advertisements that not all of the Support Engineering positions require travel. We find that the...

BALCA on Alternative Evidence, Documentation, Handwritten Date: Matter of DGN Technologies, Inc.

"The Employer noted that its documentation of the website posting had been annotated with the handwritten notation attesting to continuous posting of the advertisement. Moreover, the Employer’s president was now stating “under the penalty of perjury” that “the position was...

BALCA, What Have You Been Up To So Far in 2015? - Cora-Ann V. Pestaina

"I’m sure all PERM practitioners would agree that it’s always good (in fact necessary!) to check in with the Board of Alien Labor Certification Appeals (BALCA). One never knows what issues BALCA will comment on next and as we navigate those often treacherous PERM waters, we need all...

BALCA on Online Advertising: Matter of SDG Post Oak

"We find that the Employer complied with the supervised recruitment instructions. It placed both print and online advertisements with the exact approved language in The Beaumont Enterprise. The actual text of the advertisement as run online was correct in regard to the experience requirement. It...

BALCA on Section K: Matter of Sony Computer Entertainment America

"The Certifying Officer (“CO”) denied certification on the ground that the Employer had not shown in Section K of the Form 9089 that the Alien possessed the experience with linear algebra or computer architecture. ... ... By submission received by the Board on March 9, 2015, the Employer...

BALCA on Wage Survey: Matter of Bilinguals Inc.

"On August 21, 2014, the Center Director affirmed the initial prevailing wage determination based on the OES level II wage for the Speech Language Pathologist position (now $73,715). AF 131–133. The Center Director rejected the Employer’s argument that the wage should have been based...

Seven Years Later, Labor Cert. Granted: Matter of Lakha Enterprises

"On July 16, 2008, the Certifying Officer (“CO”) accepted for processing the Employer’s Form 9089 Application for Permanent Labor Certification on behalf of Mohammad-Amjad Khan Lodhi for the position of “Cook.” (AF 170-179). The position was located in Chicago, Illinois...

BALCA on PERM Formatting Deficiencies: Matter of DNP America

Matter of DNP America, BALCA, Oct. 6, 2015 - "Employer correctly answered the question in Section H6 because it was not requiring experience in the job offered. Instead, Employer accurately listed the primary experiential requirement in Section H10, H10-A, and H10-B as two years in a similar accounting...

Four Recent BALCA Victories

1. LA HACIENDA MEAT MARKET, INC., Nov. 4, 2015 2. FIRST TEK TECHNOLOGIES, INC., Nov. 4, 2015 3. WALDORF SCHOOL OF ORANGE COUNTY, Nov. 6, 2015 4. NORTH COAST CARDIOLOGY INC., Nov. 16, 2015

BALCA on ACWIA, H-1B Prevailing Wage, Higher Education: Matter of University of Michgan

BALCA, Matter of University of Michigan, Nov. 18, 2015 - "The Employer filed an Application for Prevailing Wage Determination (ETA Form 9141) in connection with its efforts to hire an H-1B worker. (AF 27-31). The Employer noted on the Form 9141 that it was an institution covered by the American...

BALCA on PERM Sec. K Remands - Pioneers Memorial Healthcare

Pioneers Memorial Healthcare, Dec. 23, 2015 - "In August 2015, the Employer filed two motions requesting that the Board reopen and remand the appeal. The Employer explained that after its appeal was withdrawn the Department of Labor changed its position on cases involving Section K and non-experience...