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2009

  • BALCA Affirms Denial Finding Employer’s Statement Not Adequate Documentation of Advertisement Attestation(88 KB - 11/4/2009)
    BALCA found that the employer’s personal statement regarding the newspaper advertisements is not an adequate substitute for documentation. (Matter of Phillip K. Rector, PhD, Licensed Psychologist, 10/28/09)
    AILA Doc. No. 09110467.
  • Ad Listed Representative's Name Instead of Employer's(154 KB - 10/23/2009)
    BALCA affirmed the CO’s denial, finding that listing the Employer’s Authorized Representative’s name, rather than the business’s name, was in violation of 20 CFR §656.17(f)(1). (Matter of Mohegan Ornamental Iron, LLC, 9/02/09)
    AILA Doc. No. 09102326.
  • BALCA Affirms Denial for Absence of Employer Name on Notice of Filing(113 KB - 10/23/2009)
    BALCA affirmed the CO’s denial, finding that the absence of the employer name on the Notice of Filing, although posted in a conspicuous location at the place of employment, is not harmless error. (Matter of Innopath Software, 9/02/09)
    AILA Doc. No. 09102325.
  • BALCA Affirms Denial Where Actual Wage Higher Than Prevailing Wage Listed in Notice of Filing(82 KB - 10/23/2009)
    BALCA affirmed the CO’s denial, finding that because the actual wage was higher than the prevailing wage listed in the Notice of Filing, the Notice contained a wage less favorable than that offered to the Alien. (Matter of Thomas L. Brown, Associates, P.C., 9/01/09)
    AILA Doc. No. 09102324.
  • BALCA Affirms Denial Holding That Provision of Telephone Area Code Not Sufficient to Determine Area of Employment(79 KB - 10/22/2009)
    BALCA affirmed the PERM denial, finding the provision of phone and fax numbers with area codes to determine approximate area of job opportunity was not sufficient; employers must specifically state the area of employment. (Matter of Center for Pan Asian Community Services, Inc., 8/31/09)
    AILA Doc. No. 09102228.
  • BALCA Affirms Denial Based on Lack of Timely Evidence of Newspaper Advertisements(89 KB - 10/22/2009)
    BALCA affirmed the denial of a PERM, finding the provision of legible tearsheets only upon appeal was untimely. (Matter of D&M Leasing, Inc., 9/01/09)
    AILA Doc. No. 09102227.
  • BALCA Vacates PERM Denial Where Employer's Failure to Include Notice of Filing Was Inadvertent(118 KB - 10/22/2009)
    BALCA limited holding to the precise circumstances where "in the interest of fairness" denial should be vacated, as "the preponderance of the evidence is that the audit response's failure to include the Notice of Filing was inadvertent . . ." (Matter of Luigi's Restaurant, 8/31/09).
    AILA Doc. No. 09102226.
  • BALCA Reverses Denial, Holding That a Wage Offer of 99.95% of Prevailing Wage is Sufficient in This Precise Case(83 KB - 10/20/2009)
    BALCA reverses a PERM denial stating that it is “willing to round up” when the employer’s statement of its wage was $.40 less per week than the prevailing wage. The Court limited the holding to “the precise circumstances of this precise case.” (Matter of Superior Landscape, Inc., 8/28/09)
    AILA Doc. No. 09102066.
  • BALCA Affirms Denial Based on Employer’s Failure to List CO’s Address on Notice of Filing(83 KB - 10/20/2009)
    BALCA affirms the PERM denial based on the employer’s failure to list CO’s Address on Notice of Filing in violation of 656.10(d)(3)(iii). (Matter of KFI, Inc., 8/25/09)
    AILA Doc. No. 09102065.
  • BALCA Affirms Denial Based on Employer’s Failure to State Experience Requirement on PWD Request(92 KB - 10/20/2009)
    BALCA affirms the PERM denial based on the employer’s failure to state the experience requirement on the Prevailing Wage Determination request to the State Workforce Agency. (Matter of Florida Restaurant Group, LLC, 8/25/09)
    AILA Doc. No. 09102064.
  • BALCA Affirms Denial Because the Job Order Was Conducted Outside the 180 Day Requirement(82 KB - 10/20/2009)
    BALCA affirms the PERM denial based on the fact that the application was filed 187 days after the job order was placed, and consequently, the job order was conducted outside the 180 day requirement. (Matter of Spires Restaurant, 8/25/09)
    AILA Doc. No. 09102063.
  • BALCA Vacates Denial and Remands to CO for Amendment of Filing Date(99 KB - 10/20/2009)
    BALCA vacates the denial based on the fact that the request for PERM conversion and maintainance of the original priority date of 4/26/01 was submitted prior to the receipt of the Recruitment Notice. (Matter of Far East Home Care, Inc.,7/13/09)
    AILA Doc. No. 09102062.
  • BALCA Affirms Denial Based on Lack Of FEIN on Date of Filing for Domestic Household Employer(79 KB - 10/20/2009)
    BALCA affirms denial based on the fact that the employer, a domestic household, lacked a valid FEIN on the date of filing the labor certification. (Matter of Edward J. Tierny, 7/13/09)
    AILA Doc. No. 09102061.
  • BALCA Affirms PERM Denial Based on Restrictive Experience Requirement(101 KB - 10/19/2009)
    BALCA affirmed the PERM denial on the ground that the requirement of 14 years experience for an SVP 7 position significantly restricted the applicant pool and contravened the SVP requirement. The Employer’s petition for en banc review was denied. Matter of Globalnet Management, L.C., 2009-PER-00110 (8/6/09). AILA Doc.No. 09101930.
    AILA Doc. No. 09101930.
  • BALCA Reverses PERM Denial Stating that Denying PERM on Ground Not Addressed in Audit Offends Fundamental Due Process(91 KB - 10/19/2009)
    BALCA reversed the PERM denial because the CO was not justified in basing the denial solely on the failure of Form 9089 to show the alien’s qualifications for special skills requirements, without first providing employer an opportunity to clarify the alien’s qualifications. Matter of Moreta and Associates, Int., 2009-PER-00008 (8/6/09). AILA Doc. No. 09101929.
    AILA Doc. No. 09101929.
  • BALCA Affirmed PERM Denial Because Job Order Placed 184 Days Prior to CO’s Date Stamp(81 KB - 10/19/2009)
    BALCA affirmed denial of LC because the SWA job order had been placed 184 days prior to the CO’s date stamp, and 20 CFR Sec.656.17(e)(2) requires that the job order must be placed no more than 180 days before the date of filing the application as indicated by the CO’s stamp, not the postmark. Matter of The Drywall Doctors, 2009-PER-00335 (8/6/09). AILA Doc. No. 09101928.
    AILA Doc. No. 09101928.
  • BALCA Affirms Denial Based Lack of Evidence of Valid FEIN(80 KB - 10/16/2009)
    BALCA affirms denial based on lack of evidence of a valid FEIN. Bender Ent, Inc., 2009-PER-00274 (7/13/09). AILA Doc. No. 09101663.
    AILA Doc. No. 09101663.
  • BALCA Vacates Denial Finding Alien Entitled to Retain Earlier Priority Date(98 KB - 10/16/2009)
    BALCA vacates denial of employer’s refile request under Sec. 656.17(d) to retain an earlier priority date. An issue remains regarding a name change. Matter of A&R Enterprises, 2009-PER-00152 (7/13/09). AILA Doc. No. 09101662.
    AILA Doc. No. 09101662.
  • BALCA Affirms Denial on Ground That Alien Did Not Meet Educational Requirements After Revision of Form 9089(93 KB - 10/16/2009)
    BALCA affirms the denial of a labor certification on the ground that the alien did not meet the educational requirements in the Form 9089, after its revision. Grand Metropolitan Housewares, Inc., 2009-PER-00036 (7/13/09). AILA Doc. No. 09101660.
    AILA Doc. No. 09101660.
  • BALCA Holds Kellogg Language Not Required When Primary and Secondary Requirements are Equivalent(110 KB - 10/5/2009)
    BALCA holds that that Kellogg language is not applicable because the requirements are substantially equivalent - there is no “primary” requirement. Matter of Agma Systems, LLC, 2009-PER-00132 (8/06/09). AILA Doc. No. 09100563.
    AILA Doc. No. 09100563.
  • BALCA Upholds Denial of PERM Application Filed Less Than 30 Days After Job Order Ended(110 KB - 9/22/2009)
    BALCA affirms the denial of a labor certification on the ground that the Employer violated the regulation by filing its application less than 30 days after the SWA job order ended. Matter of Maria's Home for the Aged, 2009-PER-00179(7/13/09). AILA Doc. No. 09092267.
    AILA Doc. No. 09092267.
  • BALCA Affirms Denial Based on Lack of Proof of Job Order(95 KB - 9/22/2009)
    BALCA affirms the denial of a labor certification on the ground that the Employer provided no proof the job order actually ran, that it ran for at least 30 days, and that it fit within the regulatory time constraints of 656.17(e). Matter of Van Bui, D.D.S., 2009-PER-00144(7/01/09). AILA Doc. No. 09092266.
    AILA Doc. No. 09092266.
  • BALCA Affirms Denial Based on Job Order Deficiency(82 KB - 9/22/2009)
    BALCA affirms the denial of a labor certification on the ground the Employer did not document that the Job Order was run by the SWA for the requisite 30 days. Matter of Pacific Lumber Supply, Inc., 2009-PER-00208(7/01/09). AILA Doc. No. 09092264.
    AILA Doc. No. 09092264.
  • BALCA Affirms LC Denial Due to Notice of Filing Deficiency(130 KB - 9/22/2009)
    BALCA affirms the denial of a labor certification on the ground that the Employer's Notice of Filing failed to include any information on how to contact the appropriate CO. Matter of Ron Lopes, LLC, 2009-PER-00009(6/30/09). AILA Doc. No. 09092263.
    AILA Doc. No. 09092263.
  • BALCA Reverses PERM Denial Based on Reasoning in Brooklyn Amity School(293 KB - 9/14/2009)
    BALCA reverses the denial of a labor certification on the ground that putting the address of the San Francisco CO, rather than the National Processing Center (NPC), should not result in a PERM denial where it is undisputed that the San Francisco CO was forwarding applications to the NPC. Matter of Hawaii Pacific University, 2009-PER-00127(6/25/09). AILA Doc. No. 09091463.
    AILA Doc. No. 09091463.
  • Employer Cites Problems with OFLC System, but BALCA Finds Employer Responsible for Untimely Filing(88 KB - 8/13/2009)
    BALCA affirms the CO’s denial of the PERM application, as the job order was conducted more than 180 days before filing. The employer argued that the untimely filing was due in part to problems with the OFLC system. BALCA finds employer bears responsibility for not filing by mail in a timely manner. Matter of Art O Frame, 2009-PER-00150 (6/30/09). AILA Doc. No. 09081363.
    AILA Doc. No. 09081363.
  • BALCA Finds Application Properly Denied for Inability to Verify Employer Was Sponsoring Alien(88 KB - 8/13/2009)
    BALCA finds the CO properly rejected an unsigned letter from the Employer certifying sponsorship of the alien for the position. Employer did not file an appellate brief. As the CO’s findings were unrebutted, it affirmed the denial of the application. Matter of Diamond Valley Contracting, 2009-PER-00121 (6/23/09). AILA Doc. No. 09081361.
    AILA Doc. No. 09081361.
  • BALCA Affirms Denial as Employer Placed Advertisements More than 180 Days before Filing(78 KB - 8/13/2009)
    BALCA upholds denial of the PERM application, finding that the employer placed the two newspaper advertisements outside the window required under 20 C.F.R. § 656.17(e). The advertisements were placed more than 180 days prior to the date the application was submitted. Matter of Ivonne Median and Anthony Morales, 2009-PER-00243 (6/23/09). AILA Doc. No. 09081360.
    AILA Doc. No. 09081360.
  • BALCA Finds Postal Receipt without Address Insufficient to Prove Application Was Filed within Window(82 KB - 8/12/2009)
    BALCA finds employer failed to prove that the non-electronic PERM application was mailed within the filing window. Based on the date it was accepted for processing, BALCA concludes the job order was started 201 days before the application was filed and that the CO properly denied certification. Matter of Kayok Corporation, 2009-PER-00126 (6/23/09). AILA Doc. No. 09081261.
    AILA Doc. No. 09081261.
  • BALCA Upholds Denial of PERM Application Filed Ten Days after End of SWA Job Order(88 KB - 8/12/2009)
    BALCA finds CO correctly determined the Employer’s documentation did not justify changing the dates of the SWA job order from the ones written on the 9089. Employer requested an earlier SWA job order be used in support of the application, but the earlier job order was for a different position. Matter of Madigan Productions, 2009-PER-00033 (6/23/09). AILA Doc. No. 09081260.
    AILA Doc. No. 09081260.
  • BALCA Upholds Denial of PERM Application for Employer’s Failure to Provide Notice of Filing(85 KB - 8/11/2009)
    On reconsideration the CO reviewed the audit response and concluded that the requested Notice of Filing had not been provided. As the Employer did not provide evidence or argument to rebut that finding on appeal, BALCA affirmed denial of certification. Matter of Rowayton Pizza, 2009-PER-00214 (6/23/09). AILA Doc. No. 09081172.
    AILA Doc. No. 09081172.
  • BALCA Vacates Denial so that Employer Can Clear Up FEIN Inconsistency(89 KB - 8/11/2009)
    BALCA vacates denial of PERM application. Finds some merit to argument that CO never requested proof of valid FEIN. Remands matter to the CO to provide the Employer with the opportunity to clear up the inconsistency between the FEIN used on the application and the FEIN used in a prior approved application. Matter of Ornelas, Inc., 2009-PER-00246 (6/23/09). AILA Doc. No. 09081170.
    AILA Doc. No. 09081170.
  • BALCA Affirms Denial for Failure to State Rate of Pay in Notice of Filing(79 KB - 8/11/2009)
    BALCA finds that under 20 C.F.R. §656.10(d)(4) the Notice of Filing must state the rate of pay, and failure to do so constitutes grounds for denial. The Employer did not address this deficiency in the Notice of Filing either in its request for review or in an appellate brief. Matter of Servion Global Solutions, Inc., 2009-PER-00282 (6/23/09). AILA Doc. No. 09081168.
    AILA Doc. No. 09081168.
  • BALCA Finds Additional Recruitment Steps Were Required for Dietitian and Nutritionist Position(86 KB - 8/11/2009)
    Affirms CO’s denial of PERM application. Although Employer did not require a bachelor’s degree, the SOC/O*NET code provided corresponded to an Appendix A occupation, thus the Employer had to conduct the additional steps required for professional recruitment. Matter of Skin Cancer and Cosmetic Dermatology Center, P.C., 2009-PER-00072 (6/23/09). AILA Doc. No. 09081167.
    AILA Doc. No. 09081167.
  • BALCA Affirms Denial for Failure to Conduct Additional Steps Required for Professional Recruitment(90 KB - 7/23/2009)
    BALCA finds that an Appendix A occupation requires recruitment under criteria for professional occupations regardless of whether the employer considers the position to be a professional one or requires the attainment of a bachelor’s degree. Matter of The Good Shepherd of the Little Ones, 2009-PER-00105 (6/23/09). AILA Doc. No. 09072367.
    AILA Doc. No. 09072367.
  • BALCA Upholds Denial for Untimely Recruitment and Job Order Placement(83 KB - 7/23/2009)
    BALCA affirms CO’s denial of the application because 1) the employer placed the job order six months after filing the 9089 and 2) the employer completed the third additional recruitment step five months after filing the application rather than within 30 days of filing as required. Matter of Tucs Cleaning Service, Inc., 2008-PER-00019 (6/23/09). AILA Doc. No. 09072366.
    AILA Doc. No. 09072366.
  • BALCA Upholds Denial for Failure to Prove Business Necessity for Excessive Experience Requirement(88 KB - 7/20/2009)
    BALCA affirmed the CO’s finding that the letter provided by the Employer in its appeal submission failed to document the business necessity for an experience requirement that exceeded the Job Zone SVP for the position. Matter of Florida Air Temp, Inc., 2009-PER-00198 (5/08/09). AILA Doc. No. 09072070.
    AILA Doc. No. 09072070.
  • BALCA Dismisses Argument that Certification in One Case Requires Certification of Similar Applications(135 KB - 7/16/2009)
    BALCA affirms denial of labor cert. as the employer made no effort to explain why it did not provide documentation requested in the audit notification. Finds argument that application be certified because a prior application with the exact same requirements was certified meritless. Matter of Roberto’s Mexican Food, Inc., 2009-PER-00187 (5/8/09). AILA Doc. No. 09071669.
    AILA Doc. No. 09071669.
  • BALCA Reopens Appeal Despite Lack of Timely Receipt of Statement of Intent to Proceed(102 KB - 7/16/2009)
    BALCA reopens appeal even though the Statement of Intent to Proceed was not timely received, finding that the Employer did want BALCA review and that it made efforts prior to the due date for the statement to notify the Board of that fact. Matter of Roberto’s Mexican Food, Inc., 2009-PER-00206 (4/22/09). AILA Doc. No. 09071667.
    AILA Doc. No. 09071667.
  • BALCA Upholds Denial for Unexplained Discrepancy in FEIN Numbers(79 KB - 7/15/2009)
    BALCA affirms CO’s denial finding a discrepancy in the FEIN number on the 9089 and the one presented in documentation in support motion for review. Notes discrepancy in FEINs was not identified as an issue until ruling on reconsideration, but that the employer did not file appellate brief. Matter of Ralph Basile Construction, 2009-PER-00092 (3/17/09). AILA Doc. No. 09071564.
    AILA Doc. No. 09071564.
  • BALCA Upholds Denial for Failure to Provide Recruitment Report in Response to Audit Notification(112 KB - 7/15/2009)
    BALCA affirms CO’s denial of PERM application. Employer did not submit a copy of recruitment report in response to audit notification letter. BALCA finds CO could not determine whether recruitment complied with regulations or whether U.S. workers were rejected for lawful job related reasons. Matter of Marlenny’s Haircutters, 2009-PER-00013 (1/29/09). AILA Doc. No. 09071560.
    AILA Doc. No. 09071560.
  • BALCA Finds Recruitment Deficient as Employer Failed to Include Name in Newspaper Advertisement(91 KB - 7/14/2009)
    BALCA upholds CO’s denial of PERM application. Employer failed to include name in newspaper advertisements. BALCA found employer’s argument that the omission did not prevent applicants from applying, as resumes were received, unconvincing. Matter of Parkside Construction Contractors, Inc., 2009-PER-00016 (1/9/09). AILA Doc. No. 09071469.
    AILA Doc. No. 09071469.
  • BALCA Affirms Denial for Failure to Comply with Sunday Newspaper Recruitment Requirement(79 KB - 7/14/2009)
    BALCA finds the CO was not required to permit the Employer’s failure to comply with the two-Sunday newspaper recruitment requirement to be remedied by evidence of having run a new advertisement after the CO’s denial of the application. Matter of Southern Occasions Catering, LLC, 2009-PER-00011 (1/9/09). AILA Doc. No. 09071460.
    AILA Doc. No. 09071460.
  • BALCA Vacates and Remands to Allow Employer Opportunity to Clarify FEIN Number Inconsistency(91 KB - 6/29/2009)
    BALCA finds employer should be given opportunity to clear up inconsistency between the FEIN used on current application and that used in prior approved application. Matter of Ornelas, Inc., 2009-PER-00246 (6/23/09). Courtesy of Richard Fleischer AILA Doc. No. 09062961.
    AILA Doc. No. 09062961.
  • BALCA Finds Employer Not Afforded Opportunity to Document Exception to Actual Minimum Requirements(88 KB - 6/25/2009)
    BALCA vacates denial of PERM application. Finds it is unfair to deny reconsideration for failure to document an exception regarding actual minimum requirements provided at 20 C.F.R. § 656.17(i)(3)(ii) and(iii), when employer presented argument as a request for an opportunity to do so. Matter of Medical Gases, Inc., 2008-PER-00239 (5/7/09). AILA Doc. No. 09062530.
    AILA Doc. No. 09062530.
  • BALCA Finds Prevailing Wage Determination Cannot be Substituted with Print Out from Online Wage Library(109 KB - 5/20/2009)
    BALCA upholds denial of PERM application. Employer failed to provide a Prevailing Wage Determination issued by the SWA when directed by the CO to do so in the audit notification. Instead, the employer provided a print out from the FLC Wage Data Center Online Wage Library. Matter of King’s Garden 1 Chinese Restaurant Inc., 2008-PER-00228 (4/13/09). AILA Doc. No. 09052060.
    AILA Doc. No. 09052060.
  • BALCA Holds CO Should Have Considered Audit Documentation when Ruling on Motion to Reconsider(124 KB - 5/19/2009)
    BALCA reverses denial of PERM application. Employer omitted work history from 9089 needed to demonstrate requisite experience prior to being hired. But, BALCA finds that PERM recordkeeping file, before the CO in the course of audit, should have been considered when ruling on the motion to reconsider. Matter of Pa’lante, LLC, 2008-PER-00209 (5/7/09). AILA Doc. No. 09051965.
    AILA Doc. No. 09051965.
  • BALCA Dismisses Argument that Previously Filed LCA Put CO on Notice of Information Omitted from 9089(106 KB - 5/18/2009)
    BALCA finds that the employer failed to provide sufficient work history to demonstrate that the alien possessed the requisite minimum requirements for the job when hired, and that the error in draftsmanship was too fundamental to compel reconsideration of the denial. Matter of Geoffrey Allen Corporation, 2008-PER-00234 (5/7/09). AILA Doc. No. 09051862.
    AILA Doc. No. 09051862.
  • BALCA Finds Combined Analysis of Education and Experience for Prevailing Wage Determination Contrary to Guidance(110 KB - 5/15/2009)
    BALCA orders that the prevailing wage be modified to be classified at wage level 2, rather than 4, as was determined by the SWA. Finds that the experience and education requirements were improperly commingled, and that the analogy between a master’s degree and four SVP years was inapposite. Matter of Reed Elsevier, Inc., 2008-PER-00201 (4/13/09). AILA Doc. No. 09051572.
    AILA Doc. No. 09051572.
  • BALCA Upholds Denial Where Employer Conducted its Own Prevailing Wage Survey(87 KB - 5/15/2009)
    BALCA upholds denial of PERM application where employer used its own prevailing wage survey after the SWA did not respond to its request for a prevailing wage determination. BALCA finds when an employer intends to use own survey, it must submit the survey to the SWA for a determination of its adequacy. Matter of Jackson, 2008-PER-00192 (4/9/09). AILA Doc. No. 09051571.
    AILA Doc. No. 09051571.
  • BALCA Finds Employer Unable to Document Reason for Submission of PWD Form from Wrong State(93 KB - 5/14/2009)
    BALCA affirms denial of PERM application because of employer’s failure to request a prevailing wage determination (PWD) from the SWA having jurisdiction over proposed area of intended employment. PWD form submitted was from California, listed area of intended employment was Rhode Island. Matter of A Fresh Perspective, Inc., 2008-PER-00203, (3/31/09). AILA Doc. No. 09051461.
    AILA Doc. No. 09051461.
  • BALCA Affirms Denial Because Employer Failed to Place SWA Job Order for at Least 30 Days(88 KB - 5/14/2009)
    BALCA upholds denial of PERM application because the SWA job order was placed for only 3 days. Matter of Blue Digital Resource, Inc., 2008-PER-00224 (4/13/09). AILA Doc. No. 09051460.
    AILA Doc. No. 09051460.
  • BALCA Upholds Denial Because Employer Did Not Wait Thirty Days after End of Job Order to File(82 KB - 5/13/2009)
    BALCA upholds denial of PERM application because employer submitted the application 11 days after end of SWA job order. BALCA finds filing before the end of the 30 day period reflects employer’s indifference to whether U.S. applicants are given adequate consideration for the job opportunity. Matter of A&S Marble Granite, Inc., 2008-PER-00213, 1/5/09. AILA Doc. No. 09051370.
    AILA Doc. No. 09051370.
  • BALCA Finds Omission of CO’s Address on Notice of Filing Was Not Typographical or Non-Substantive Error(97 KB - 5/13/2009)
    Finds CO properly denied certification of PERM application. Employer omitted CO’s address on Notice of Filing. BALCA finds omission defeated the statutory and regulatory purpose of giving the address to which documentation bearing on the application can be provided. Matter of Tekkote, 2008-PER-00218 (1/5/09). AILA Doc. No. 09051369.
    AILA Doc. No. 09051369.
  • BALCA Finds Employer Failure to Prove that Absence of Name on Notice of Filing is Immaterial(116 KB - 4/29/2009)
    BALCA upholds the PERM application denial. The employer asked for equitable relief. BALCA finds evidence was needed that the absence of the employer’s name would not be material to the effectiveness of the Notice of Filing, even if the company president’s name and phone number were listed. Matter of Stone Tech Fabrication, 2008-PER-00187 (1/5/09). AILA Doc. No. 09042971.
    AILA Doc. No. 09042971.
  • BALCA Does Not Excuse Employer's Error in Listing Notice of Filing Date(93 KB - 4/29/2009)
    BALCA upholds denial for failure to post a notice of filing between 30 and 180 days before the application filing. Finds a “mere statement” from the attorney that that the notice of filing date listed on the 9089 was an error is insufficient to establish that it was a clerical error. Matter of Soule, Blake & Wechsler, Inc., 2008-PER-00184 (3/31/09). AILA Doc. No. 09042969.
    AILA Doc. No. 09042969.
  • BALCA Holds Certification Cannot be Denied for Lack of Kellogg Language(71 KB - 4/21/2009)
    BALCA vacates and orders certification of a PERM application for a Computer Systems Analyst. Concludes case is governed by Federal Insurance Co., which held that certification could not be denied based on the failure to write the Kellogg language on the ETA 9089. Matter of Kpit Infosystems Inc., 2009-PER-00075 (2/25/09). Courtesy of Ramesh Gurnani. AILA Doc. No. 09042160.
    AILA Doc. No. 09042160.
  • BALCA Rejects Argument that Regulation Prevents CO from Denying Audited Application(103 KB - 4/17/2009)
    BALCA finds 20 C.F.R. § 656.20(b) relates to failure to provide documentation in an audit response, not to the CO’s authority to review that documentation to determine whether it complies with the regulations. Also rejects argument that absence of the CO’s address was insignificant to application. Matter of Aramark Corporation, 2008-PER-00181, 1/8/09. AILA Doc. No. 09041775.
    AILA Doc. No. 09041775.
  • BALCA Finds There is No “On-the-Job-Site-Hire” Exception to PERM Requirements(104 KB - 4/16/2009)
    BALCA upholds the denial of a PERM application for failure to complete several sections of the 9089. Employer argued that reason for failure to provide a start date for the job order and failure to run Sunday print advertisements was that “This was an on-the-job-site hire.” Matter of Franco's Construction, 2008-PER-00128 (1/6/09). AILA Doc. No. 09041675.
    AILA Doc. No. 09041675.
  • BALCA Finds Job Order Was Not Long Enough in Duration, Employer Unable to Cure Defect(76 KB - 4/16/2009)
    BALCA upholds the denial of the PERM application finding that the employer’s placement of a job order after the denial determination could be used to support a new application but could not cure the defect in the case at hand. Matter of JJR Mexican Grill, Inc., 2008-PER-00132 (1/5/09). AILA Doc. No. 09041674.
    AILA Doc. No. 09041674.
  • BALCA Finds Prevailing Wage Determination Expiration Date is Imprecise(94 KB - 4/13/2009)
    BALCA upholds denial of PERM application, finds that Employer’s response of “N/A” to 9089 Section F-8 regarding the expiration date of the validity period of the PWD is nonsensical. Also finds, that Employer’s provision of the year 2004 in response to the request for review was too imprecise. Matter of Choe, 2008-PER-00145 (1/5/09). AILA Doc. No. 09041369.
    AILA Doc. No. 09041369.
  • BALCA Finds Employer Must Include Name in Job Ad, Fax Number is Insufficient(87 KB - 4/13/2009)
    BALCA affirms denial of PERM application. Employer’s name was excluded in job advertisement, but fax number was included. BALCA finds fax does not identify employer for applicants, also finds inclusion of rate of pay on 9089 does not cure failure to include the rate of pay on the Notice of Filing. Matter of Dunkin Donuts, 2008-PER-00135 (1/5/09). AILA Doc. No. 09041360.
    AILA Doc. No. 09041360.
  • No Equitable Relief for Employer who Failed to Recruit or File Application within PWD Validity Period(79 KB - 4/3/2009)
    BALCA affirms denial of PERM application as the employer did not conform with the regulatory requirement to conduct the recruitment or file the application within the validity period of the SWA prevailing wage determination. BALCA did not find that equitable relief was warranted. Matter of Redheads Bistro and Bar, 2008-PER-00216 (1/5/09). AILA Doc. No. 09040372.
    AILA Doc. No. 09040372.
  • BALCA Finds Employer’s Placement of Job Order after Denial Does Not Cure Application Defect(76 KB - 4/3/2009)
    BALCA affirms CO’s denial of the PERM application, finding that the employer’s placement of a job order after receiving the denial determination could be used to support a new application, but it did not cure the defect with the application as submitted. Matter of JJR Mexican Grill, Inc., 2008-PER-00132 (1/5/09). AILA Doc. No. 09040371.
    AILA Doc. No. 09040371.
  • BALCA Upholds Denial, Employer Misinterpreted 30 Day Requirement(85 KB - 4/2/2009)
    BALCA finds that the Employer violated the regulation by filing its PERM application less than 30 days after the SWA job order ended. Notes it is not sufficient that the 30 day duration of the SWA job order ended prior to filing the application. Matter of British European, 2008-PER-00109 (1/5/09). AILA Doc. No. 09040231.
    AILA Doc. No. 09040231.
  • BALCA Holds Denial for N-3 Omission on Mailed-in 9089 is Capricious(135 KB - 4/1/2009)
    BALCA reverses denial of a PERM application deemed incomplete because of the employer’s failure to date section N-3 of the 9089 which was mailed in. It found that the CO failed to articulate a sufficient reason that the omission was material to the review of the substance of the application. Matter of Yasmeena Corporation, 2008-PER-00073 (11/14/08). AILA Doc. No. 09040161.
    AILA Doc. No. 09040161.
  • Employer Fails to Establish Compliance with Regulatory Requirements for Newspaper Advertisements(83 KB - 3/31/2009)
    BALCA upholds the CO’s denial of the PERM application for a horse trainer. Although the tear sheets included in the request for reconsideration established that advertisements were run on two Sundays, they also evidenced a fundamental lack of compliance with the regulatory requirements for newspaper advertisements. Matter of Levine, 2008-PER-00080 (12/12/08). AILA Doc. No. 09033165.
    AILA Doc. No. 09033165.
  • BALCA Upholds Denial of PERM Application for Lack of Valid FEIN Prior to Change in Ownership(110 KB - 3/31/2009)
    BALCA holds that when application is deficient when filed because the sponsoring employer does not have a valid FEIN, the CO is not required to permit the application to be perfected based on a change in ownership. After the application was filed, an employer with a FEIN number was substituted in. Matter of WWM, Inc., 2008-PER-00064 (10/28/08). AILA Doc. No. 09033160.
    AILA Doc. No. 09033160.
  • BALCA Finds Lack of Right Box Explanation for Disparity in PERM and Pre-PERM Applications Untenable(89 KB - 3/30/2009)
    BALCA upholds determination that PERM app. filing date is priority date. PERM and pre-PERM apps. were not identical regarding education requirement. Employer argued that 9089 provided no option but to check the box for a high school education, when only an 8th grade education was required. Matter of B & M Auto Service, Inc. 2008-PER-00122 (10/28/08). AILA Doc. No. 09033068.
    AILA Doc. No. 09033068.
  • BALCA Upholds Denial, Employer Failed to Provide Documentation Specified in the Audit Letter(83 KB - 3/30/2009)
    BALCA upholds the CO’s denial of the PERM application, noting that although the focus of the audit notification letter was the live-in nature of the application, it specifically directed the employer to submit its recruitment report, which the employer failed to do. Matter of Schwartz, 2008-PER-00115 (10/28/08). AILA Doc. No. 09033067.
    AILA Doc. No. 09033067.
  • BALCA Finds Issue of whether Newspaper is of “General Circulation” Not Raised until Final Determination(87 KB - 3/27/2009)
    BALCA reverses, grants certification. Finds the employer rebutted the NOF. CO did not specify finding that the newspaper was not of general circulation as regulations require until the Final Determination when it was too late for employer to submit evidence to rebut. Matter of The New AAA Apartment Plumbers, Inc., 2008-INA-00008 (9/8/08). AILA Doc. No. 09032773.
    AILA Doc. No. 09032773.
  • Employer Unable to Prove Business Necessity, Requirements for Domestic Tutor Exceeded DOT Standard(108 KB - 3/27/2009)
    BALCA upholds denial of a traditional labor certification for a domestic tutor, finding that the employer did not prove that the training and experience requirements, which exceeded the standards set by the DOT, arose out of a business necessity, nor did she prove that she amended these requirements. Matter of Harrigan, 2008-INA-00008 (9/8/2008). AILA Doc. No. 09032772.
    AILA Doc. No. 09032772.
  • BALCA Follows Federal Insurance Co., Vacates Denial Based on Missing Kellogg Language (2/26/2009)
    BALCA followed its previous decision in Federal Insurance Co. in two cases by vacating the Certifying Officer’s denial of labor certification based on missing Kellogg language and ordering the Certifying Officer to grant certification. 2008-PER-0246 (2/24/09) and 2009-PER-00084 (2/24/09). AILA Doc. No. 09022670.
    AILA Doc. No. 09022670.
  • BALCA Vacates CO’s Denial of Labor Certification Based on Missing Kellogg Language(590 KB - 2/26/2009)
    BALCA vacated the Certifying Officer’s denial of labor certification based on missing Kellogg language and ordered the Certifying Officer to grant certification. Federal Insurance Co., 2008-PER-0037(2/20/09). AILA Doc. No. 09022667.
    AILA Doc. No. 09022667.