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Immigration Law
BALCA says NOF Only Required to Apprise U.S. Workers of Job Opportunity
      Browse: 1549      Date: 12-26-2015

ETEAM, INC., the Employer, is sponsoring the Alien for permanent employment in the United States for Programmer Analyst.” On the Form 9089 application, the Employer indicated that the position required applicants to have a Master’s degree in Computer Science or Engineering, but no training or experience.  In Section H-14 of the Form 9089, the Employer wrote:

Masters degree in Computer Science or Engineering.  Must have 1 graduate course in database management and network security and post-secondary education must have included software development using UNIX and Perl.

The Certifying Officer (CO) audited the application. With its audit response materials, the Employer supplied a copy of the Notice of Filing (NOF) it posted.  The NOF described the job as follows, in pertinent part:

Job Description:  design and update the software that runs a computer and create custom applications tailored to client organizations tasks using principles of database management and network security using a wide variety of specialized hardware, software, language and tools including UNIX and Perl.

The CO denied certification, stating:

The notice of filing for the Application for Permanent Employment Certification does not apprise the U.S. worker of the job opportunity.  The job described in the notice does not match the job described on the ETA Form 9089 Section H.  Specifically, the notice of filing does not list the specific skills or other requirements in Section H-14.

The Employer requested reconsideration of the denial.  The Employer argued that Section 656.17(f)(3) only requires “a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought” and that a FAQ posted on the Office of Foreign Labor Certification website states that the regulation “does not require employers to run advertisements enumerating every job duty, job requirement, and condition of employment.  As long as the employer can demonstrate a logical nexus between the advertisement and the position listed on the employers application, the employer will meet the requirement of apprising applicants of the job opportunity.”

The CO reconsidered, but found that the ground for denial was valid.  The CO reasoned:

The recruitment advertisements must provide a nexus to the job opportunity, however, the Notice of Filing is more specific to the job offer being made available to the foreign worker and therefore must indicate all duties and requirements as listed on the application so that viewers of the NOF would be fully apprised of the job opportunity being sought in the application to make an informed decision of whether or not there was any documentary evidence which needed to be provided to the Certifying Officer.  In this instance, by not including the education and additional specific skills on the NOF, interested applicants were not apprised of the specific job opportunity and the Office of Foreign Labor Certification Certifying Officer has determined this reason for denial as valid per Departmental regulations at 20 CFR § 656.10(d)(4) and 20 CFR § 656.17(f).

On appeal, the Employer argued that the CO had created a requirement that the NOF list the specific skills or other requirement in Section H-14 of the Form 9089, without any basis in statutory, regulatory or case law authority. The Employer argued that its NOF included a description of vacancy specific enough to apprise U.S. workers of the job opportunity for which labor certification was sought.  The Employer filed a Motion for Summary Reversal, arguing that BALCA had considered this identical issue in Architectural Stone Accents, Inc., 2011-PER-2719 (July 3, 2013), and concluded that there is no requirement that any job requirements appear in the NOF. The Employer therefore requested summary reversal of the denial of certification.

 

DISCUSSION

In Architectural Stone Accents, Inc., 2011-PER-2719 (July 3, 2013), the CO denied certification because the Employer’s NOF did not mention a Spanish language requirement.  The BALCA panel in that case observed that the regulations at 20 C.F.R. §§ 656.10(d) and 656.17(f)(1) , provide in detail what a NOF must include.  The panel then stated:

Nonetheless, the regulation cited by the CO as grounds for the denial, 20 CFR. § 656.17(f)(3) does not affirmatively mandate that all job requirements be listed on an advertisement. The regulation only requires that an advertisement provide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought.

Thus, the advertisement only must be “specific enough” to apprise the U.S. workers of the job opportunity.  There is nothing in Section 656.10 or 656.17(f) that requires that the NOF list every job requirement.  In the instant case, we have reviewed the Employer’s NOF. We do not find that the omission of the Spanish language requirement violated Section 656.17(f)(3), as overall the text of the NOF was sufficient to apprise U.S. workers of the job opportunity.

The Employer’s NOF in this case was specific enough to apprise interested persons of the job opportunity for which labor certification is sought.  Accordingly, we grant the Employer’s motion for summary reversal of the denial of certification.


COMMENTS BY ATTORNEY

Although BALCA reversed the decision of CO in this case, it will be a good practice for employers to match the job described in the notice of filing with the job described on the ETA Form 9089 Section H to avoid the lengthy process of request for reconsideration and appeal with BALCA.