Board Disregards Form 9089 Section K License Instruction
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.
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