Employers Must Provide "Reasonably Obtainable" Documents
Posted Jul 25, 2008
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In a recent decision, the Board of Alien Labor Certification Appeals (BALCA) affirmed the denial of a labor certification in which the employer failed to provide "reasonably obtainable" documents requested by the U.S. Department of Labor (DOL)'s Certifying Officer (CO). BALCA held the denial of the labor certification was proper, as the employer's documents are "directly relevant to the issue of whether the employer was offering bona fide employment" and where the employer "did not establish that the requested documentation was not reasonably obtainable." While the Murthy Law Firm did not provide representation in connection with any aspect of this case, this information is provided to guide employers and employees in their understanding of the risks involved when one fails to provide the necessary information and documentation for a labor certification case.
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Employer Must Satisfy Various Criteria
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In this case, the employer was a take-out restaurant, which sought to sponsor a foreign national for the position of cook. The employer received a Notice of Findings (NOF) with regard to the labor certification application. The NOF requested specific documentation to confirm the existence of a bona fide job opportunity. This request for documentation included signed copies of federal income tax returns, a staffing chart, copies of unemployment insurance documents, and certain documentation on the nature of the restaurant itself. The employer refused to submit tax returns, arguing that the issue of financial documentation is outside the jurisdiction of the DOL. The employer also did not provide the other requested documents and did not provide a reason for its inability or unwillingness to do so. BALCA affirmed the denial of the labor certification, noting the relevance of the tax returns to the question of whether the job offer was bona fide.
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Conclusion
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This recent BALCA decision affirmed the importance of employers' compliance with DOL requests for certain information and documentation that may be relevant to its ability to certify a labor certification case. The issue of whether the offered job is bona fide is critical in the context of a labor certification. One way for an employer to show that it has a bona fide position is to prove that it has a genuine business operation, with sufficient funds to support the job offered. Tax returns often provide vital evidence to meet the test of an employer's ability to pay the required prevailing wage and may be requested both by the DOL and the United States Citizenship and Immigration Services at the I-140 stage.