On January 5, 2009, a three-judge panel of the Board of Alien Labor Certification Appeals (BALCA) issued a decision affirming a Certifying Officer's (CO) denial of an employer's labor certification application. The decision addressed whether a newspaper advertisement supporting a labor certification application must include the employer's name. The employer argued that its newspaper advertisement was adequate because it included the employer's personal office fax number and, therefore, faxes submitted in response to the advertisement would not be misplaced. The panel noted that 20 C.F.R. § 656.17(f)(1) requires a newspaper advertisement supporting a labor certification application to identify the employer. The panel further noted that the final rule that implemented these regulations required an employer's name to appear in an advertisement because inclusion of the employer's name allows potential applicants to identify the employer and enables them to determine whether they wish to apply for the position. The panel concluded that the employer's argument concerning the sufficiency of its advertisement was without merit because it did not address the purpose of including an employer's name in an advertisement. As a result, the BALCA panel affirmed the CO's denial of certification on this ground.
The panel also affirmed the CO's denial of certification on the ground that the employer's Notice of Filing did not state the rate of pay, as required by 20 C.F.R. § 656.10(d)(4). The panel noted that the purpose of this requirement is to enable any person to submit documentary evidence bearing on an application for labor certification, such as information about available workers, wages, and working conditions. The employer argued that it had included the rate of pay in the Form 9089, Application for Permanent Employment Certification, that it had filed with the CO; however, the panel concluded that inclusion of the rate of pay in Form 9089 did not cure the employer's failure to provide the rate of pay in the Notice of Filing. Because the Notice of Filing did not state the rate of pay, the BALCA panel determined that the CO had also correctly denied certification on this ground.