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Administrative Appeals Board Overturns Denial of Labor Certification

Department of LaborBefore an employer in the U.S. can hire a worker from abroad for a job here, the employer must petition for a visa for the worker. This requires a labor certification from the Department of Labor (DOL). The employer must establish that it is in compliance with U.S. labor law regarding the employment of someone from outside the country. In a recent case, a DOL certifying officer (CO) denied a request for certification on the basis that the job posting disadvantaged U.S. workers. The DOL’s Board of Alien Labor Certification Appeals (BALCA) reversed the CO’s decision. In re Cosmos Foundation, Inc., No. 2012-PER-01637, dec. order (BALCA, Aug. 4, 2016).

Permanent labor certifications are required for employment-based immigrant visas, through which an immigrant employee can come to the U.S. with the intention of staying permanently. The main purpose of a labor certification is to demonstrate that no qualified U.S. workers are available to fill a position, and hiring someone from abroad will not negatively affect wages for workers here. A similar process, known as the labor condition application, applies to petitions for temporary visas, such as the H-1B visa program. The Program Electronic Review Management (PERM) system, an electronic application system established by the DOL in 2005, is supposed to enable the DOL to process an application in 60 days or fewer.

DOL regulations impose numerous requirements for labor certifications. The Cosmos case involved an alleged defect in the way the employer advertised the position. If an employer places a job advertisement in a newspaper or professional journal before applying for a labor certification, the advertisement must describe the job in terms that are “specific enough to apprise the U.S. workers of the job opportunity for which certification is sought.” 20 C.F.R. § 656.17(f)(3).

The employer in Cosmos applied for a labor certification in June 2011. The CO requested “specific recruitment documentation” from the employer several months later and denied certification in January 2012. Cosmos, dec. at 2. The newspaper and radio advertisements placed by the employer did not comply with DOL regulations, according to the CO, since they only stated the “primary requirement” of a college degree and two years’ experience, while they omitted the “alternate job requirement(s)” of two years’ work experience. Id. at 2-3.

BALCA reversed the CO’s denial of certification. The CO had concluded that the advertisements did not provide enough information to allow U.S. applicants “to make an informed decision as to whether they would qualify for the position and/or apply.” Id. at 3. BALCA noted in its decision that recent BALCA panels have found that job advertisements do not fail to notify U.S. workers of the job opportunity because they “merely omit information.” Id. at 7.

Samuel C. Berger is an employment visa attorney in New York City and Northern New Jersey. Our clients include prospective immigrants who want to move to this area, as well as immigrants who have made a home here already. We also represent businesses and families, helping them petition for a visa for an employee or relative. Contact us online, at (201) 587-1500, or at (212) 380-8117 today to schedule a confidential consultation to see how we can help you.

More Blog Posts:

What New York and New Jersey Businesses Should Know About Temporary Work Visas, New York & New Jersey Immigration Lawyer Blog, October 22, 2015

Department of Labor Can Set Wage Limits for H-2B Workers, According to Third Circuit, New York & New Jersey Immigration Lawyer Blog, March 19, 2014

Immigration News for New Jersey Employment-Based Immigrant Visa and Temporary Worker Visa Petitioners, New York & New Jersey Immigration Lawyer Blog, February 5, 2014

Photo credit: Ed Brown [Public domain], via Wikimedia Commons.