The
Board of Alien Labor Certification Appeals (“BALCA”) reversed a denial of labor
certification on September 2, 2016 in a case over a software engineer position,
finding that the certifying officer had seemingly “ignored” a distinction made
by the employer between the job and the immigrant’s temporary job under an H-1B
visa.
BALCA
reversed a denial of labor certification in a case involving Bally Gaming Inc.
(“Bally”), a casino game manufacturer. The company had submitted an application
for permanent labor certification sponsoring an immigrant for permanent employment
as a software engineer in New Jersey, but the certifying officer found that the
foreign worker would be working in the Kennesaw, Georgia, area.
The
company pointed out that the immigrant’s H-1B visa let him work in both areas,
but that the permanent job for which Bally filed the labor certification was
the one in New Jersey.
BALCA
found that the prevailing wage determination, which outlined a software
engineer job in New Jersey without a travel requirement, was “fully consistent”
with the company’s application.
The
board went on to find that Bally Gaming rightly noted that its application and prevailing wage determination submission
both “unambiguously describe” a job located in Egg Harbor Township, New Jersey.
“The
[certifying officer] apparently ignored the distinction the employer made
between the New Jersey job opportunity contained in the employer’s Form 9089
and the temporary position occupied by the [immigrant] pursuant to the H-1B
visa and instead treated the Form 9089 as seeking certification of permanent
employment in a position identical to that occupied by the [immigrant] under
the H-1B visa,” the board wrote.
The
board then found that since there aren’t any grounds in the Immigration and
Nationality Act or the PERM regulations for mandating that a job opening
contained in a Form 9089 be the same as a temporary job that the immigrant has,
the certifying officer had “abused his discretion” in finding that the company
“failed to offer the job opportunity to U.S. workers on the same terms and conditions”
on the table for the immigrant.