Promising BALCA Decision on Labor Certifications for Teachers

On January 30, 2014, the Board of Alien Labor Certification Appeals (BALCA) reversed the denial of a Labor Certification submitted by the Clariden School for the position of “AMI Montessori Elementary Teacher.” The certification was initially denied because the school indicated on the ETA Form 9089 that the minimum educational requirement for the position was a Bachelor’s degree. The school reported that the highest level of education achieved by the foreign worker was “AMI Certification.” Although the school submitted a document from the Montessori Training Center of Minnesota stating that a Bachelor’s degree is required for admission to its AMI Montessori Diploma program, the U.S. Department of Labor (DOL) contended that the school’s representation on Form 9089 did not enable DOL to verify that the foreign worker earned a Bachelor’s degree, and should have used the free form space on the Form to disclose that the foreign worker possessed a Bachelor’s degree on top of AMI Certification.

The BALCA rejected the DOL’s reasoning that “adequate free form fields” necessarily mandates the Employer to provide a clarification on the foreign worker’s qualifications, when nothing on the Form or its instructions have alerted the Employer that it was required to make such a clarification. However, since it is not apparent to people other than those knowledgeable of the Montessori School structure that the AMI Certification is a higher level education than a Bachelor’s degree, the Employer could potentially have saved itself trouble by making stating that the Beneficiary had not only the AMI Certification but also a Bachelor's degree. The lesson: use the explanation/free form space to clarify education and certification levels - don't assume that the DOL knows what you know about prerequisites for obtaining a certification or other credential.

tagged school, teacher, BALCA, Labor Certification, PERM, employment-based immigration

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