A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Wednesday, April 4, 2012

BALCA Upholds Labor Certification Denial Due to Lack of Travel Language in Notice of Filing

"Employer has  violated  20 C.F.R. §  656.17(f)(4) by including different geographical locations in the ETA Form 9089  than what was stated in their advertisements.    Employer’s ETA Form 9089 described the geographic area as Santa Clara, California, and,  'various unanticipated locations throughout the U.S.,' while the advertisement only stated Santa Clara.  Employer argues that the position did not require travel, but language was included in ETA Form 9089 to 'allow for participation in events outside of the employer’s offices.'  Furthermore, they stated that 'travel is an ancillary and purely optional requirement.'  However, this still violated §  656.17(f)(4). U.S. workers viewed  a different  geographic location than that listed on the ETA Form 9089.   Thus, the advertisement  did not clearly apprise U.S. workers of the geographic location for the job opportunity, even if the ETA Form 9089 did not mean that travel was required.    If Employer had informed U.S. workers that the job included 'various unanticipated locations throughout the U.S.,'  more U.S. workers may very well have applied.  Some potential U.S. applicants may have been interested in the option of various locations, or the option to travel.   Therefore, it was appropriate for the CO to deny certification of the application."  (Matter of Sun Microsystems, 3/29/12)

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