BALCA disregards Form 9089 Section K licence instruction

In the matter of Huitt-Zollars Inc (2015-PER-671, 24 January 2019), the Board of Alien Labour Certification (BALCA) came down on the side of the employer by ruling that there is a lack of clarification about licensing on Form 9089 and that a Programme Electronic Review Management (PERM) application should not be denied for failure to state the alien's acquisition of a licence. A panel of three judges stated that it is not apparent from Form 9089 where the alien's licence should be included and that this defect cannot be cured by an FAQ which is mere guidance.

However, the fly in the ointment is that while Form 9089 does not itself clarify this point, the separate instructions to the form do require employers to include licence acquisition on Form 9089 in Section K (Alien Work Experience, Item 9) for each of the jobs listed.

The ETA Form 9089 instructions (separate from Form 9089 itself) include section-by-section instructions for completing Form 9089. The instructions for Section K provide a stipulation for Section a, Job 1, Item 9:

Enter the details of the job performed by the alien while employed. Include the phone number of the employer and the name of the alien's supervisor. Job descriptions should also include specific details of the work performed, with emphasis on skills, qualifications, certifications, and licenses required, managerial or supervisory functions performed, materials or products handled, and machines, tools, and equipment used or operated.

The Office of Foreign Labour Certification has been adamant in stating that the language used in the separate instructions to Form 9089 puts the employer on notice that licence acquisition must be written on Form 9089 in Section K, Item 9 in 'past jobs' to show that the alien meets the minimum requirements.

Should the question arise as to why BALCA would say that there is nothing in the instructions requiring licence acquisition on Form 9089, when in fact the instructions to the form include language pertaining to "licenses required", the explanation may be that in BALCA's first PERM decision – HealthAmerica – BALCA essentially held that since PERM imposes zero tolerance on employers in its PERM programme, the forms must be user-friendly.

Neither the employer nor the certifying officer wrote a brief to BALCA in this case. In addition, complicated facts related to confusion in the initial filing of the appeal gave rise to the implication that both the employer and BALCA disregarded the language in the instructions. This case should not be interpreted to mean that employers may ignore the instructions with impunity, as the pendulum of justice may swing either way depending on the facts of each case and the opinion of the specific BALCA panel.

For further information on this topic please contact Joel Stewart at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (joel.stewart@employmentimmigration.com). The Fakhoury Law Group PC website can be accessed at www.employmentimmigration.com.