The Board of Alien Labor Certification Appeals (BALCA) released a short decision in the Matter of SWDWII, LLC, 2012-PER-00887 (Jan. 29, 2016) [PDF version] in which it held that a minor typographical error in the name of the employer on a State Workforce Agency (SWA) job order did not support the denial of labor certification. In this article, we will examine the facts of the case and the reasoning behind the decision.
Facts of Matter of SWDWII, LLC
- The Employer filed an ETA Form 9089 sponsoring an alien for permanent employment in the United States for the position of “Food Service Manager.”
- In Box C.1 of the ETA Form 9089, the Employer listed its name as “SWDWII, LLC.”
- However, on the SWA job order, the Employer's name was listed as “SWOWII, Inc.”
- The Certifying Officer (CO) audited the application.
- The CO denied labor certification on three grounds. The only ground that remained an issue for the BALCA on appeal was that the name on the SWA job order did not list the same name for the Employer as on the ETA Form 9089. The CO denied certification under 20 C.F.R. 656.10(c)(1).
- The Employer filed a request for reconsideration. It argued that the name was inadvertently misspelled on the SWA job order.
- On reconsideration, the CO affirmed the denial on the basis of 20 C.F.R. 656.10(c)(1). The CO found that “the inclusion of the company name on recruitment efforts allows potential applicants to identify the hiring employer and allows the Office of Foreign Labor Certification [CO] to confirm the employer's compliance with recruitment requirements.”
Discussion and Decision in the Matter of SWDWII, LLC
First, the BALCA panel noted that although the CO cited 20 C.F.R. 656.10(c)(1) as the basis of the denial, the CO appeared to describe 20 C.F.R. 656.10(c)(8) in both the denial letter and the decision to affirm the denial on reconsideration. Accordingly, the BALCA assessed whether the denial was warranted under 20 C.F.R. 656.10(c)(8).
20 C.F.R. 656.10(c)(8) requires that an employer attest that “[t]he job opportunity has been and is clearly open to any U.S. worker.” The BALCA panel analyzed “whether the typographical error [on the SWA job order] so misinformed potential job applicants about the identity of the Employer that the Employer could not properly attest that the job opportunity was clearly open to any U.S. worker.”
The BALCA panel noted that in its request for reconsideration, the Employer submitted evidence to demonstrate that it is a franchisee of a larger company and primarily conducts business under two trade names. After reviewing the evidence, the BALCA panel found that potential applicants for the position and the general public would be familiar with the trade names of the Employer rather than the Employer's legal name.
The BALCA panel found that the “minor typographical error” in the Employer's legal name on the SWA job order “would do little to confuse potential applicants about the Employer's identity.”
Therefore, the BALCA panel reversed the CO's denial of labor certification and remanded for certification because the CO's denial of labor certification was not supported by the regulations.
In the Matter of SWDWII, LLC, the BALCA reversed the denial of labor certification because based on the facts of the situation, the “minor typographical error” would not confuse applicants about the Employer's identity. However, there are two points worth noting.
Firstly, the decision does not indicate that any “mild typographical error” would not support the denial of labor certification under 20 C.F.R. 656.10(c)(8). The BALCA found that the denial was not supported by the regulations in this case because the Employer was known by its trade names rather than its legal name. If the BALCA panel had found that the “minor typographical error” would have confused potential applicants about the Employer's identity, the denial of labor certification would have been supported.
Secondly, this decision highlights the importance of filling out all forms in the labor certification application process carefully. Notwithstanding that with slightly different facts, the typographical error could have led to the denial being upheld; the error made the Employer's labor certification application process more difficult than it would have otherwise been.