Tag Archives: BALCA

BALCA Overturns Denial

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BALCA Overturns Denial: Employer’s Name Different 

 

The Board of Alien Labor Certification Appeals overturned a denial where the employer’s name on the Department of Labor form differed from its name on the State Workforce Agency order. The position that was open was for “Food Service Manager.” The Certifying Officer audited and denied the application for the discrepancy in the employer’s names. The Officer’s basis was that the discrepancy misinformed potential job applicants about the identity of the employer, so that there was not a job opportunity clearly open to any US worker. BALCA reversed the denial because the discrepancy would not confuse potential applicants about the employer’s identity.

BALCA Sides with Employer

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BALCA Victory for Employer: Typo Overturned

USDOL_Seal_circa_blue_2015The Department of Labor is usually unforgiving of typographical errors. The smallest thing askew can sink an entire PERM application. BALCA recently decided a case that overturned a typographical error.

The employer’s submitted job requirement was a Bachelor’s Degree and 60 months of experience. In the alternative, it would accept a Master’s Degree and 36 years of experience. That was a typo; the employer meant 3 years (36 months). The certifying officer for the Department of Labor refused certification, finding that the alternative requirement was not substantively similar to the primary experience requirement. On appeal to BALCA, the employer argued that the form was inconsistent. The primary requirement demanded months. The alternative requirement demanded years.

BALCA has held previously that denials based on typographical errors can violate fundamental fairness. Fundamental unfairness occurs when the denial is made because the instructions conflict with the form and the requirements are satisfied in good faith. Inconsistencies are construed against the promulgator of the form, not the applicant. The box states years; the instructions state months. BALCA found that the alternative requirements were substantially equivalent to the primary requirements.