BALCA Determines that the Wage Listed on the Notice of Filing Must Match Wage Range on the 9089

The Board of Alien Labor Certification (“BALCA”) recently considered whether a wage range that is listed on the Form 9089 must match the wage listed on a notice of filing. In Matter of Doloma, Inc., the employer submitted a labor certification for the position of retail store manager. In the labor certification, it listed a wage range of $15.78 to $18.00 per hour. The case was audited and the employer submitted a notice of filing as part of its audit response that listed the wage for the position as $16.00 per hour. The Certifying Officer (“CO”) denied the case on the basis that the wage listed on the notice of filing was lower than what was stated in the labor certification form. The case was appealed and BALCA determined that the federal regulations provide that “advertisements must ‘not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.’” Since the notice of filing failed to mention that the sponsored position could earn a wage that went up to $18.00 per hour, it did not properly disclose the job opportunity to U.S. workers. Consequently, BALCA upheld the denial. Through this case, BALCA reminded employers that the wage information provided in recruitment that is conducted in a PERM case must provide consistent information regarding the job opportunity.

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