BALCA Decision Regarding Level of Detail Required in Notice of Filing

Labor CertificationThe Board of Alien Labor Certification Appeals (BALCA) issued a decision in Matter of ETEAM Inc. (decision PDF)1 which held that the Notice of Filing (NOF) as part of a labor certification application (LCA) need only include enough information to apprise interested persons of the job opportunity for which labor certification is sought. Accordingly, the NOF does not need to include a list of all of the specific job requirements.

The Employer in Matter of ETEAM Inc. filed an LCA for an alien it was sponsoring for the professional position of “Programmer Analyst.” On the Form 9089 application, the Employer indicated that the position required an employee who had a Master's degree in Computer Science or Engineering along with courses in specific subjects, but no training or work experience. However, while the NOF included information about the position, it did not include either the educational requirements or that the job did not require prior training or work experience.

Citing the mismatch between the Form 9089 and the NOF, the Certifying Officer (CO) denied labor certification in the case. The CO based the decision to deny on the requirement found in 20 C.F.R. 656.17(f)(3) that the advertisements for the position must “provide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought.”2 The CO stated that the regulation requires that the NOF include “all duties and requirements listed on the application” and that by not including them on the NOF, U.S. workers were “not apprised of the specific job opportunity.”

The employer argued that there is no legal basis for the CO's assertion that the NOF list “all duties and requirements” of the position and that its NOF was sufficient for appraising U.S. workers of the job opportunity for which labor certification was sought. The employer appealed to the prior BALCA decision, Matter of Architectural Stone Accents, Inc. (decision PDF)3 which overturned a labor certification denial based upon the employer in that case not including a Spanish language requirement on the NOF that it included on the Form 9089. In that decision, the BALCA stated: “the advertisement must only be 'specific enough' to apprise the U.S. workers of the job opportunity” and that there “is nothing in [20 C.F.R.] 656.10 or 656.17(f) that requires the NOF to list every job requirement.”

The BALCA sided with the Employer and reversed the CO in accordance with Matter of Architectural Stone Accents, Inc. The decision cited Matter of Hawai'I Pacific University (decision PDF)4 in explaining the dual purpose of the NOF:

  1. To recruit U.S. workers
  2. To provide a method for employees and interested persons to provide information to the CO about an employer's application.

Accordingly, the decision stated that the purpose of the NOF is to inform interested persons about the job opportunity so that they “may submit documentary evidence bearing on the application for certification.”5 While the BALCA noted that while it appreciated the CO's concern with the omitted information on the NOF, the Employer had met its obligation by providing enough information on the NOF to apprise interested persons about the job opportunity.

___________________

  1. Matter of ETEAM Inc., 2013-PER-00424 (Dec. 1, 2015)
  2. This regulation is cited as a requirement by 20 C.F.R. § 656.10(d)(4)
  3. Matter of Architectural Stone Accents, Inc., 2011-PER-2719 (July 3, 2013)
  4. Matter of Hawai'i Pacific University, 2009-PER-127 (Mar. 2, 2010)(en banc)
  5. Citing IMMACT90 § 122(b)