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BALCA Overturns Denial Resulting from Inconsistencies in 9089 Instructions and Form

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The Board of Alien Labor Certification Appeals (“BALCA”) recently determined that a typographical error resulting from inconsistencies between the labor certification form and its instructions could not serve as a basis for a denial. In Matter of UBS Securities LLC, the employer submitted a labor certification for a Director, Derivative Business Control Group. In the Form 9089, the employer listed that the position’s primary requirements were a Bachelor’s degree and 60 months of experience. The employer also stated that it would accept an alternative requirement of a Master’s degree and 36 years of experience. Per the federal regulations, primary and alternative requirements must be equivalent. The Department of Labor has historically found that a Bachelor’s degree and five years of overall progressive experience and a Master’s degree and three years of experience are equivalent. The Certifying Officer denied the case because it found that a Master’s degree and 36 years of experience is not equivalent to a Bachelor’s degree and 60 months of experience. In response, the employer argued that the Form 9089 “asks for primary experience requirement in terms of months, while the alternate experience requirement must be entered in terms of years.” Thus, the employer listed a requirement of 36 years in the alternate requirement section when it only required 36 months of experience. In reviewing the case, BALCA determined that the Form 9089 instructs applicants to state the number of years of experience. In contrast, the instructions to the Form 9089 directs employers to enter the number of months of experience. Since there was a discrepancy between the form and the instructions, BALCA found that “such inconsistencies ‘must be construed against the promulgator of the form and / or instructions, not the applicant.’” Consequently, the denial was overturned. It is critical that employers carefully read the requirements of every form submitted to the U.S. government. However, this case does assist employers who are faced with inconsistent requests in a form and its instructions. This post originally appeared on HLG's Views blog by Cadence Moore. http://www.hammondlawgroup.com/blog/

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