Although Not Argued by Employer, BALCA Finds Typographical Error in ETA Form 9089 and Reverses Denial of Certification

In Matter of Sharp Image Gaming, Inc., 2011-PER-02024 (BALCA July 9, 2014), the employer filed an application for labor certification on behalf of the alien for the position of foreman. The employer required 24 months of experience in the job offered or as a wire harness assembler. From January 1996 to December 2004, the alien had worked for the employer as a wire harness assembler. From January 2005 to the present, the alien worked for the employer as a foreman. In Section H.11 of ETA Form 9089, the employer outlined the job duties of a wire harness assembler. In Section K.9 Job 2, the employer listed the job duties of a wire harness assembler. In Section K.9 Job 1, the employer listed the job duties of a foreman. Pursuant to 20 CFR § 656.17(i)(3)(i), experience gained while working for the employer in a position “substantially comparable to the position for which certification is sought” cannot be considered qualifying experience. The certifying officer (CO) denied the application on the ground that the job duties listed in Section H.11 and Section K Job 2 were identical, and thus the 24 months of experience did not represent the employer’s actual minimum requirements for the job opportunity, in violation of 20 CFR § 656.17(i)(1).

On appeal, the Board of Alien Labor Certification Appeals (BALCA or Board) said:

It appears the Employer mistakenly listed the job duties for a Wire Harness Assembler instead of the job duties of a Foreman in Section H.11 describing the duties of the job opportunity. The Employer did not argue a typographical error in Section H.11, but did state the job opportunity requires supervisory duties and not the actual performance of the Wire Harness Assembler position. Furthermore, the recruitment materials submitted during audit describe the job opportunity as involving supervisory job duties which are nearly identical to the Foreman position in Section K.9 Job 1, not Section H.11.

The Board noted that the job duties listed in the notice of filing, prevailing wage request, newspaper advertisements, and job order all described the job opportunity as requiring supervision of workers and quality control oversight, and said:

Considering only the information provided on the ETA Form 9089, the CO was correct in finding the Wire Harness Assembler position was not qualifying experience for the foreign worker because based on a comparison of the job duties in Sections H.11 and K.9 Job 2, the position was identical to the job opportunity in Section H. If there had been no audit in the matter, the CO’s denial because the alien did not meet the requirements of the job opportunity would likely be justified based on the face of the application.

However, an audit was conducted and the audit materials provided by the Employer establish it was in actual compliance with 20 C.F.R. § 656.17(i)(1). Looking at the various recruitment documents provided on audit, it is readily apparent the duties of the job opportunity are actually the duties listed in K.9 Job 1 of the application, not the job duties identified in Section H.11, as the job duties in K.9 Job 1 are essentially the same as those listed in the recruitment documents. The supervisory duties listed in K.9 Job 1 and in the recruitment documents are not substantially comparable to the foreign worker’s prior experience as a Wire Harness Assembler, and therefore the foreign worker met the Employer’s minimum requirement of 2 years’ experience in the job offered or as a Wire Harness Assembler.

Although the Employer made a typographical error on its ETA Form 9089, because the audit materials demonstrate the Employer was in actual compliance with the regulations, the typographical error on its own does not warrant denial in the matter. … At the time of the denial, the CO had before him sufficient evidence provided through the audit process to establish the foreign worker’s prior experience as a Wire Harness Assembler was not substantially comparable to the job opportunity as a Foreman and the foreign worker met the minimum requirements for the job opportunity. Based on the record, we find the CO should not have denied the application pursuant to 20 C.F.R. § 656.17(i)(1), and we hereby reverse the denial of certification.

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