On April 9, 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 CO denied the application because the employer failed to include the expiration date of the prevailing wage determination in Section F-8 of its labor certification application (ETA Form 9089). The employer requested reconsideration of this decision and explained that it had conducted its own survey to determine the prevailing wage because it had not received a response to its prevailing wage request from the local State Workforce Agency (SWA). On reconsideration, the CO again denied the application for the employer's failure to identify the prevailing wage expiration date.
In ruling on this appeal, the BALCA panel noted that an employer must request a prevailing wage determination from the SWA with jurisdiction over the area of intended employment. The panel further explained that, pursuant to 20 C.F.R. § 656.40(c), the SWA must specify the validity period of the prevailing wage and, to use a prevailing wage that the SWA determined, an employer must either file its labor certification application or commence recruitment within the specified validity period. According to the panel, completion of Section F-8 of a labor certification application is critical because it allows the CO to determine whether the application was filed, or the required prefiling recruitment occurred, within the validity period of the prevailing wage determination.
Additionally, the panel emphasized that under 20 C.F.R. § 656.40(g)(2), an employer may only request that the SWA use the employer's survey for the prevailing wage determination, and that the SWA, not the employer, makes the prevailing wage determination. Thus, the panel concluded that the fact that the employer relied on its own survey did not excuse its failure to complete Section F-8 of the labor certification application.