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.

Joel Stewart