In the Matter of Bahwan Cybertek INC., 2012-PER-01147 (Feb. 18, 2016) [PDF version], the Board of Alien Labor Certification Appeals (BALCA) overturned the denial of a labor certification application where the State Workforce Agency (SWA) job order listed a rate of pay for the position of $1.00 per year. The Board overturned the denial based on the following grounds:
- 20 C.F.R. 656.17 does not regulate the content of SWA job orders; and
- The annual wage listed on the SWA job order was “clearly a placeholder” and did not discourage U.S. workers from applying for the position [denial of labor certification had been based on 20 C.F.R. 656.10(c)(8)].
- The Employer filed an Application for Permanent Employment Certification (ETA Form 9089) on behalf of an alien for permanent employment in the United States as a “Project Manager.”
- On the ETA Form 9089, the Employer indicated that the prevailing wage was $99,446.00 a year and that it was offering a wage of $99,500.00.
- The Certifying Officer (CO) issued an Audit Notification. It directed the Employer to submit a copy of the SWA job order.
- The SWA job order submitted by the Employer in response to the audit stated that the minimum and max pay for the position were both $1.00 per year. Under “Pay Details,” the SWA job order stated “Competitive Salary. Will be discussed with the candidate.”
- After reviewing the audit response, the CO denied labor certification. It found that “the SWA job order listed a wage rate lower than the prevailing wage in violation of 20 C.F.R. 656.17(f)(5), and lower than the wage offer in violation of 20 C.F.R. 656.10(c)(8) and 656.17(f)(7).”
- The Employer requested reconsideration. With respect to 20 C.F.R. 656.17, the Employer argued that “PERM regulations do not require the listing of wages on recruitment except in the case of internal posting.” Regarding 20 C.F.R. 656.10(c)(8), it stated that the $1.00 amount was so the Massachusetts SWA's online job order system would accept the posting. The Employer further argued that the comments under “Pay Details” made clear that $1.00 per year was not the actual salary offered.
- The CO found that the grounds for denial were valid. With respect to 20 C.F.R. 656.17, the CO noted that listing the salary on the SWA job order at $1.00 annual salary is less than the prevailing wage determination and the offered wage listed on the ETA Form 9089. Regarding 20 C.F.R. 656.10(c)(8), the CO stated that the Employer's comments under “Pay Details” were not specific enough to overcome the “potential chilling affect arising from advertising $1 as an annual salary.” Because the CO found that the SWA job order may have “resulted in the artificial exclusion of U.S. workers” the Employer failed to demonstrate that “no U.S. workers are available, willing, able and qualified for the job opportunity.”
The CO's denial had two main components. First, the CO denied certification based on 20 C.F.R. 656.17(f)(5) and (7) because the wages listed in the SWA job order were different than those listed on the ETA Form 9089. Secondly, the CO denied based on 20 C.F.R. 656.10(c)(8) because the wage listed on the job order may have prevented minimally qualified U.S. workers from applying for the position, thus rendering it impossible for the Employer to demonstrate that there were no minimally qualified U.S. workers available for the position.
Discussion and Decision
The Board reviewed the case and reversed the CO's denial of labor certification for the following reasons:
20 C.F.R. 656.17 Does not Apply to SWA Job Orders
The Board quoted the following passage from 20 C.F.R. 656.17(f): “[a]dvertisements placed in newspapers of general circulation and in professional journals before filing the Application for Permanent Employment Certification must … [n]ot contain wages or terms and conditions of employment that are less favorable than those offered to the alien.” The Board noted succinctly that the language of the regulation “only applies to advertisements in newspapers or professional journals, and does not regulate the content of SWA job orders.” Accordingly, the Board found that because the CO applied 20 C.F.R. 656.17(f)(5) and (7) to the SWA job order, the denial of labor certification based on those two clauses could not be sustained.
SWA Job Order Did Not Discourage U.S. Workers from Applying for the Job
The Board quoted the following passage from 20 C.F.R. 656.10(c)(8): “[t]he job opportunity has been and is clearly open to any U.S. worker.” Accordingly, the question before the Board was whether the content of the SWA job order resulted in the job opportunity not being clearly open to U.S. workers.
The Board noted that an SWA job order that lists a wage below the prevailing wage rate and/or the actual wage offer for the job for which labor certification is sought calls into question whether the Employer can satisfy 20 C.F.R. 656.10(c)(8). However, the Board accepted the Employer's argument that the $1.00 wage was “obviously a placeholder” and “was clearly not intended to reflect the actual wage rate.” Accordingly, the Board found that “no reasonable job seeker would have been discouraged from applying for the job, especially since it was clarified that the Employer is offering a competitive salary and that the salary was subject to discussion.”
Ultimately, the Board found that because the $1.00 annual wage was “clearly a placeholder” and because the Employer's comments made clear that it was offering an annual wage, U.S. workers were not discouraged from qualifying for the position. However, the Board also made clear that “[e]ven slight understatements of the wage may be enough to support a finding that the SWA job order violated 20 C.F.R. 656.10(c)(8).” It is always wise for an Employer to consult with an experienced immigration attorney for guidance on how to ensure that the content of an SWA job order does not lead to scrutiny under 20 C.F.R. 656.10(c)(8).