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2010

  • BALCA on Timing of Recruitment in Relation to Prevailing Wage Validity Period(97 KB - 12/20/2010)
    BALCA found that the employer failed to comply with 20 CFR §656.40(c), where it filed the application after the prevailing wage expired, but failed to commence recruitment during the prevailing wage validity period. (Matter of Quadrille Wallpapers, 12/15/10) AILA Doc. No. 10122060.
    AILA Doc. No. 10122060.
  • BALCA Grants CO's Motion to Strike Evidence Submitted on Appeal (11/30/2010)
    In a consolidated review of 18 PERM denials on the same issue, BALCA granted the CO's Motion to Strike evidence submitted on appeal, stayed en banc review, and directed parties to confer and advise. (Matters of Albert Einstein and Abingdon Memorial Hospital, 11/17/10) AILA Doc. No. 10113061.
    AILA Doc. No. 10113061.
  • BALCA Offers Additional Guidance on Matter of Denzil Gunnels(108 KB - 11/24/2010)
    The CO erred in forwarding the employer’s “request for review” to BALCA, rather than treating it as a request for reconsideration, thereby precluding a legal argument that arose only after the denial letter was issued. (Matter of CVS RX Services, 11/16/10). AILA Doc. No. 10112436.
    AILA Doc. No. 10112436.
  • BALCA Discusses Acceptance of New Evidence on Reconsideration(118 KB - 11/23/2010)
    BALCA upheld the CO’s denial, finding that evidence that existed at the time the application was filed, but was not submitted in response to the CO’s audit is barred from a reconsideration request by 20 CFR §656.24(g)(2)(i). (Matter of Techdemocracy, 11/16/10) AILA Doc. No. 10112371.
    AILA Doc. No. 10112371.
  • BALCA Rules on the CO’s Discretion to Reconsider(212 KB - 11/23/2010)
    BALCA held that the CO’s discretion to reconsider a denial or treat it as a request for BALCA review under 20 CFR §656.24(g) cannot be exercised to preclude a meritorious argument regarding de facto compliance with the regulations. (Matter of Denzil Gunnels, 11/16/10) AILA Doc. No. 10112370.
    AILA Doc. No. 10112370.
  • BALCA Reverses Denial, Finding Clear Evidence of SWA Job Posting(85 KB - 11/12/2010)
    BALCA reversed the CO’s denial, finding that the employer’s audit response clearly contained a screenshot of the SWA job posting, which the CO apparently misconstrued as documentation of the employer’s website. (Matter of American Airlines, 10/27/10) AILA Doc. No. 10111261.
    AILA Doc. No. 10111261.
  • BALCA on Use of the Word “Ongoing” in Timing of Recruitment(93 KB - 11/12/2010)
    Use of the word “ongoing” in response to questions I-15 and I-19 instead of a specific date did not violate the timing requirements for recruitment using a website posting and employee referral program under 20 CFR §656.17(e)(1)(ii). (Matter of Cinetic Dyag, 10/27/10) AILA Doc. No. 10111260.
    AILA Doc. No. 10111260.
  • BALCA Changes Course on Notice of Filing Exceptions(110 KB - 10/29/2010)
    BALCA held that the Matter of Stone Tech suggestion that there are exceptions to the NOF requirements is no longer viable. Failure to include the business name on the NOF was fatal to the application. (Matter of Robert Venuti Landscaping, 10/27/10) AILA Doc. No. 10102960.
    AILA Doc. No. 10102960.
  • BALCA Finds All Advertisements Must Comply with §657.17(f)(122 KB - 10/20/2010)
    BALCA affirmed the CO's denial, holding that all advertisements placed in fulfillment of additional recruitment steps for professional positions must comply with the 20 CFR §656.17(f) content requirements. Matter of Credit Suisse Securities, 2010-PER-00103 (10/19/10). AILA Doc. No. 10102033.
    AILA Doc. No. 10102033.
  • BALCA En Banc Panel Says Universities May Recruit under Basic Process and Choose the Most Qualified (Updated 4/19/11) (4/19/2011)
    The panel found, in cases involving college or university teaching positions, that the employer may select the most qualified applicant whether it employs basic recruitment under 20 CFR §656.17, or competitive recruitment under §656.18. (Matter of ETSU, 4/18/11) AILA Doc. No. 10102061.
    AILA Doc. No. 10102061.
  • BALCA Discusses “Business Days” for Notice of Filing Requirement(93 KB - 10/13/2010)
    The Board vacated the denial, finding that where employees work on a weekend or holiday and can see the notice of filing, those days are “business days” for purposes of the notice requirement under 20 CFR §656.10(d)(1)(ii). (Matter of Il Cortile Restaurant, 10/12/10) AILA Doc. No. 10101366.
    AILA Doc. No. 10101366.
  • BALCA Remands Matter of Syracuse to CO for Certification (9/15/2010)
    Following a request from the Department of Labor Office of the Solicitor, BALCA remanded the case to the Certifying Officer for approval of the employer’s labor certification. Matter of Syracuse University, 2010-PER-00772 (9-8-10). AILA Doc. No. 10091565.
    AILA Doc. No. 10091565.
  • BALCA Affirms Denial of Labor Certification for CEO of Closely Held Corporation(104 KB - 9/15/2010)
    BALCA affirmed the CO’s denial, finding that the employer, a closely held corporation in which the alien had an ownership interest, failed to show that job opportunity for CEO position was bona fide. Intervid Inc. v. Collin Steyn (2009-PER-00278, 9/09/10). AILA Doc. No. 10091560.
    AILA Doc. No. 10091560.
  • 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.
    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.
    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.
    AILA Doc. No. 10080970.
  • BALCA Rejects ERP Documentation with Date Outside the Recruitment Period(108 KB - 7/20/2010)
    In a pre-Sanmina-Sci case, BALCA affirmed the CO’s denial where the evidence of the employer’s employee referral program (ERP) consisted of a printout from its intranet with a date pre-dating the recruitment period. (Matter of Ove Arup & Partners, 7/20/10)
    AILA Doc. No. 10072059.
  • 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.
    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.
    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.
    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.
    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.
    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.
    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.
    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.
    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.
    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.
    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.
    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.
    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.
    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.
    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.
    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.
    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.
    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.
    AILA Doc. No. 10010464.