BALCA Overturns Denial of Labor Certification where SWA Job Order Listed Wage at $1 Annually
The Board of Alien Labor Certification Appeals (BALCA) overturned the denial of a labor certification application where the State Workforce Agency (SWA) job order listed a rate of pay for a Project Manager position of $1 per year. In making its decision, the Board determined that (1) 20 C.F.R. 656.17 does not regulate the content of SWA job orders; and that (2) the annual wage listed on the SWA job order was “clearly a placeholder” and did not discourage U.S. workers from applying for the position under 20 C.F.R. 656.10(c)(8). Accordingly, the Board found that “no reasonable job seeker would have been discouraged from applying for the job, especially since it was clarified that the Employer is offering a competitive salary and that the salary was subject to discussion.”
- 20 C.F.R. 656.17 states that “the Application for Permanent Employment Certification must … [n]ot contain wages or terms and conditions of employment that are less favorable than those offered to the alien.” In looking at the language of the regulation however, the Board noted that it “only applies to advertisements in newspapers or professional journals” and does not apply to SWA job orders.
- Although the Board found that the listing of $1 on the SWA order did not discourage U.S. workers from applying for the job, the Board made a discretionary decision. It is therefore prudent to consult an immigration attorney to ensure that the content of an SWA job order does not lead to scrutiny under 20 C.F.R. 656.10(c)(8).
For a link to the decision, please click here: http://myattorneyusa.com/storage/upload/files/matters/matter-of-bahwan-cybertek-inc.PDF