In Matter of Huitt-Zollars, Inc. (2015-PER-671, January 24,

2019), the Board of Alien Labor Certification (BALCA) has come down

on the side of the Employer by ruling that there is a lack of

clarification about licensing on Form 9089 and that a Perm

application should not be denied for failure to state the

alien's acquisition of a license. A panel of three judges

stated that it is not apparent on Form 9089 where the alien's

license 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 itself

does not clarify this point, the separate Instructions to Form 9089

do require employers to include license acquisition on Form 9089 in

Section K, Alien Work Experience, item 9 in 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 an “Instruction for

Section a—Job 1” for item 9 as follows:

“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 [emphasis

provided], managerial or supervisory functions performed, materials

or products handled, and machines, tools, and equipment used or

operated.”

The OFLC has been adamant in stating that this language in the

separate Instructions to Form 9089 does put the Employer on notice

that license acquisition must be written on Form 9089 in Section K,

item 9 in past jobs to show that the alien meets the minimum

requirements.

If you are wondering why the Board would say that there is

nothing in the instructions requiring license acquisition on Form

9089, when in fact the instructions to the form do include language

pertaining to “licenses required,” the explanation may be

that in BALCA's first Perm decision, HealthAmerica, the Board

essentially held that since Perm imposes zero tolerance on

Employers in its Permanent Electronic Record Management program,

the forms need to be user-friendly.

Neither the Employer nor the CO wrote a brief to the Board this

case. In addition, complicated facts related to confusion in the

initial filing of the appeal give rise to the implication that not

only the Employer, but the Board as well, 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.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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