BALCA Panel Offers Differing Opinion on SWA Content

From: USADNEWS Volume VII, Issue 7 October 2013

A recent decision by the Board of Alien Labor Certification Appeals (BALCA) contradicts a previous decision that was issued by a different BALCA panel regarding the content of job orders that are placed with the State Workforce Agency (SWA).

In the Matter of IBM Corporation, the Certifying Officer (CO) denied the employer’s application for the position of Senior Managing Consultant because the SWA job order did not state that the work will be performed at “various client sites throughout the U.S.” as stated on the ETA Form 9089. The CO initially claimed that this omission violated the regulations at 20 C.F.R. § 656.17(f)(6), which require that advertisements not include any job requirements or duties that exceed those listed on the ETA Form 9089. The employer challenged this basis for denial, arguing that the duties listed on the ETA Form 9089 exceeded those listed on the SWA and not the other way around.

The CO forwarded the case to BALCA, acknowledging that the employer was correct in pointing out that the CO had inaccurately cited 20 C.F.R. § 656.17(f)(6) as the basis for denial. However, the CO concluded that the denial was still justified based on 20 C.F.R. § 656.17(f)(4), which states that the advertisements must “indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.”

BALCA relied on past findings to reach their decision, noting that in David Dill (June 2009) the Board upheld a denial due to the fact that the SWA job order listed a wage that was less than the prevailing wage determination. The Board also pointed out that the en banc panel in A Cut Above Ceramic Tile (March 2012) specified that even though the employer is not required to provide a copy of the job order, if they do provide one, “the CO is not barred from denying certification based on a deficiency in the content of the SWA job order” (see March/April issue of USADNEWS).

The Board determined that even though section 20 C.F.R. § 656.17 refers directly to advertisements for newspapers and professional journals, BALCA has interpreted the regulations to apply to all advertisements including SWA job orders. Based on this interpretation, the omission of information about travel requirements would violate 20 C.F.R. § 656.17(f)(4). BALCA thereby upheld the CO’s denial of certification.

This is a stark contrast to the decision in the Matter of Chabad Lubavitch Center (July 2013) (see September issue of USADNEWS), in which the Board concluded that it could not extrapolate beyond the plain language of the law. In that case, BALCA also relied on A Cut Above Ceramic Tile, finding in that decision a basis for a different interpretation of the regulations. In A Cut Above, the Board quoted the Supreme Court as saying that where Congress “includes particular language in one section of a statute but omits it in another section of the same Act,” it is presumed that the omission is intentional. Based upon this reasoning, the Board concluded in the Chabad Lubavitch Center case that SWA job orders were purposely omitted from the content requirements at section 20 C.F.R. § 656.17.

Because of the contradictory nature of these two decisions, it may not be surprising to see this matter brought before an en banc panel in the future. In the meantime, USADWEB will continue to provide proofs of SWA job orders for you to review for accuracy and completeness.