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BALCA Overturns Denial - PERM Position Is Not Required to Match H-1B Position
      Browse: 3650      Date: 09-10-2016

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.

Source: AILA