BALCA Finds No Regulatory Violation in Wage Error on ETA 9089
“The Employer was not provided adequate notice of the CO’s additional reason for denial based on the Employer’s website advertisement.
The initial denial letter simply stated that the PWD did not match the prevailing wage listed on the ETA Form 9089.
It did not mention any possible violations of the regulations based on the Employer’s internal website posting.
The Employer did not have notice of this additional reason until the CO denied reconsideration in its transmittal letter, and as a result, the Employer did not have an opportunity to present evidence that would overcome the denial.
We therefore find that in the interest of due process and fundamental fairness, the Employer should not be denied certification based on the new reason provided by the CO in his transmittal letter.
Accordingly, we reverse the CO’s denial of labor certification.”