LexisNexis® Legal Newsroom
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...

BALCA Reverses Labor Cert. Denials By Upholding Real World Job Advertisements - Cora-Ann V. Pestaina

Cora-Ann V. Pestaina, Feb. 22, 2016 - "[A]n employer’s use of terms like “Competitive,” “Depends on Experience” (DOE), “Negotiable,” “Will Discuss With Applicant,” etc. does not take away from the employer’s advertisement of the occupation...

BALCA on PERM Web Ads: Matter of VLS IT Consulting

Matter of VLS IT Consulting, Inc., Apr. 26, 2016 - "In this case, the Employer’s website advertisement failed to specify the job’s location. When reviewing a similar advertisement, a previous panel determined that, “[a]lthough a statement of the location of the employment might...

BALCA on PERM, Travel, Relocation: Matter of Infosys, Ltd. (May 12, 2016)

Matter of Infosys, Ltd. - "This case presents essentially two questions. 1) Did the CO correctly determine that the possibility that workers might be required to relocate was not subsumed in the Employer‘s description of the work locations as ―various unanticipated locations through the U...

BALCA Reaffirms Use of Wage Range: Matter of Institute for Environmental Health

Matter of Institute for Environmental Health, Aug. 12, 2016 - "The Employer argues that the preamble to the PERM regulations permits an employer to state a wage range on the NOF. We agree. ... We find that the Employer’s NOF sufficiently apprised U.S. workers of the available job opportunity...

BALCA Reverses 372 Labor Cert. Denials Over Locality Pay Issue: Matter of Cognizant Technology

Matter of Cognizant Technology, Sept. 29-30, 2016 - "For the reasons stated below, we find that: (1) the Employer‟s COLA is a wage adjustment and not merely a per diem payment; (2) because the wage is not required to be stated in newspaper advertisements and in additional professional recruitment...

Editor's Corner: Can OFLC Overrule BALCA by FAQ? (On the Meaning of H-2B 'Worksite')

Daniel M. Kowalski, Oct. 5, 2016 - "On April 15, 2016, BALCA held that for H-2B visa truckers, "[t]here is only one opening for full-time employment and it is where the trucking terminal is located. There is no “job opportunity” or opening for employment at the delivery location...

BALCA Holds That Failure To Disclose A ‘Wage Adjustment’ Is Not A Valid Denial Ground - Cora-Ann V. Pestaina

Cora-Ann V. Pestaina, Oct. 18, 2016 - " Recently, in the representative case, Matter of Cognizant Technology Solutions US Corp , 2013-PER-01488 (BALCA, September 29, 2016), the Board of Alien Labor Certifications Appeals (BALCA) reversed 382 PERM denials finding, most significantly, that the employer’s...

BALCA on Familial Relationship: Matter of Tyrrell Limited

Matter of Tyrrell Limited, Oct. 21, 2016 - "While a familial relationship between an alien and an employer creates a presumption that a job is not clearly open to U.S. workers, the presumption is not so stringent as to be insurmountable. Even though the mother of the Alien in this case owns the...

BALCA on PERM, Special Skills - Matter of Smartzip Analytics

Matter of Smartzip Analytics, Nov. 9, 2016 - "We recognize that the issue in this case differs from the issue in Apple; however, much of the panel‟s reasoning applies to the facts in this case. Here, the CO found that because the Employer did not indicate a duration requirement for the special skills...

BALCA on Job Opportunity, Competitive Salary: Matter of Tek Services

Matter of Tek Services, LLC, Nov. 17, 2016 - "The CO denied the application because the Employer’s website advertising and job order did not specify a particular salary but rather indicated that the Employer was offering a “competitive salary.” ... The appeal was docketed and the...