Home Immigration Blog BALCA Decision on “Minor Typographical Error” in Employer’s Name on SWA Job Order

BALCA Decision on “Minor Typographical Error” in Employer’s Name on SWA Job Order

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.

Analysis

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.

Also you can read

Family Based Immigration

Marriage Fraud Old

There are many immigration benefits available to aliens who are married to U.S. citizens. For this reason, aliens in the United States who have accrued at least 180 days of unlawful presence, cannot work due to their lack of status, and face 3 or 10 year or permanent bars of inadmissibility that attach upon departing from the United States, have been known to consider entering into sham marriages solely for the purpose of obtaining immigration benefits.

Fixing Misclassification as a Conditional Permanent Resident

We examine how a permanent resident who was misclassified as a conditional permanent resident by USCIS can fix the error.

SIJ Adjudications After Request for Evidence (RFE)

The USCIS updated its guidance on the 180-day period for adjudicating special immigrant juvenile petitions by removing provisions for tolling the 180-day period.

Want to schedule a consultation?

You can schedule a consultation with us on Skype, over the phone, or in person by using our “Online Consultation” form. Our fee is only $260 per up to 45 minutes for all consultations regardless of the topic.

Contact Information

27 Whitehall Street, 5th Fl New York, NY. 10004

Phone: (212) 202-0342

Fax: (212) 964-0440

Attorney Advertising: prior results do not guarantee similar outcomes.

myattorneyusa.com is owned and operated by The Law Offices of Grinberg & Segal, PLLC (Grinberg & Segal). The content of myattorneyusa.com is copyrighted. Grinberg & Segal is a NYC immigration law firm that consists of highly experienced immigration lawyers licensed to practice state law in New York and New Jersey and U.S. federal law worldwide. Grinberg & Segal’s  New York-based immigration, deportation and removal lawyers represent immigrant clients in all fifty states and before U.S. Consulates anywhere in the world. Grinberg and Segal’s immigration lawyers are highly skilled and experienced in all areas of immigration law and related federal litigation including Writs of Mandamus and Habeas Corpus as well as APA Action in Federal District Courts, Petitions For Review in U.S. Circuit Courts and all administrative appeals Before the Board of Immigration Appeals (BIA) of the Executive Office for Immigration Review; Administrative Appeals Office (AAO) at the U.S. Department of Homeland Security (DHS) as well as before Immigration Courts nationwide.