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.)

Sunday, February 7, 2016

BALCA Emphasizes Substance Over Form In Recent Decisions

BALCA has shifted emphasis to substance over form in several recent labor application decisions.

In one case, the Certifying Officer denied labor application because the employer name in the ETA 9089 labor application was different from the one in the State Job Order.   BALCA reversed the denial and granted certification, holding that a minor typo error in the employer name on the State Job Order did not cause confusion to potential applications regarding the identity of the employer or otherwise undermine the employer's attestation.  Matter of SWDWII LLC, 2012-PER-00887 (Jan. 29, 2016).

In another decision, Matter of: UBS Securities LLC, 2012-PER-00845 (Jan. 8, 2016), BALCA reversed the denial of a labor application which had an alternative requirement of a master's degree and 36 years of experience.  The 36-year requirement was used as the basis for denial by the CO.  On appeal, the employer argued that the denial was not fair to the extent that the instruction of the form conflicts the question in the form regarding alternative requirements.   While the question in the form asks for the "number of years of [alternative work] experience," the instructions for the question asks employer to enter the "number of months" of experience.  Such a contradiction makes it impossible for the employer to answer the question correctly.  Hence, the Board found that enforcing the regulation to deny is "fundamentally unfair" under these circumstances. The decision is consistent with the Board's prior decision in HealthAmerica, 2006-PER-1 (July 18, 2006) (en banc), where the Board held that denying an application for a mere typographical error violates fundamental fairness.

Finally in a third decision, the Board granted certification in a case where the State Job Order contains a different job description than the one listed in the labor application. This decision was based more on technical grounds.  The board held that the regulation governing general advertisements do not apply to State Job Orders. Matter of Pinnacle Technical Resources Inc., 2012-PER-00130 (January 1, 2016). 

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