BALCA Holds that 20 C.F.R. 656.17 Does Not Apply to SWA Job Orders

SWA job orderThe Board of Alien Labor Certification Appeals (BALCA) overturned the denial of labor certification in a case where the Certifying Officer's (CO's) denial was based on the application of 20 C.F.R. 656.17(f) to language found in an State Workforce Agency (SWA) job order. The Matter of Xceltech Inc., 2012-PER-00811 (Feb. 3, 2016) [PDF version]. In this article, we will explain the facts of the case and the reasoning behind the Board's short decision.

Case Background

  • Employer filed a labor certification application sponsoring an alien for a position as a Programmer Analyst.
  • The CO reviewed the application and denied labor certification because the SWA job order contained “Drug Testing/Screening Background Checks and Reference Checks, which were not included on the ETA Form 9089.
  • The CO cited 20 C.F.R. 656.17(f)(6) as the sole regulatory ground for denial.
  • The Employer requested reconsideration. It argued that the “advertisement need only have a logical nexus with the position listed on the application” and that any error in filling out the ETA Form 9089 was “harmless error.”
  • The CO reconsidered, but ultimately upheld the denial.

Applicable Regulation

At question in the case was whether the discrepancy between the language in the ETA Form 9089 and the SWA job order violated 20 C.F.R. 656.17(f)(6). The regulations in 20 C.F.R. 656.17(f) apply to an:

Advertisement placed in newspapers of general circulation or in professional journals before filing the [ETA Form 9089]…

20 C.F.R. 656.17(f)(6) provides that such advertisements:

[Must] [n]ot contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089…

Discussion and Order

The Board noted that while 20 C.F.R. 656.17(f)(6) regulates the contents of advertisements and the ETA Form 9089, it does not regulate the content of SWA job orders. Accordingly, the Board found that the CO was in error because the CO based “solely relied” on 20 C.F.R. 656.17(f)(6) to deny the labor certification application based on language in the SWA job order as compared to the language in the ETA Form 9089.

The Board vacated the denial of labor certification and directed the CO to grant labor certification.

Conclusion

In the instant case, the Board overturned the denial of labor certification because it found that the CO had incorrectly applied 20 C.F.R. 656.17(f)(6) to an SWA job order. If an employer has a labor certification application denied, it is always important consult with an experienced immigration attorney for assistance in determining whether there exists a legally sound argument that the denial was based upon the incorrect application of the Department of Labor (DOL) regulations.