Matter of Café Italiano – Denial of Unsigned ETA 9089 Submitted by Mail

BALCA affirmed the CO’s denial and rejected the employer’s argument that he was forced to submit the application without the alien’s signature because the alien currently works in a rural region of Kosovo with limited mail service.

Issue Date: 27 January 2011
BALCA Case No.: 2010-PER-00256
ETA Case No.: A-07233-67874

Employer on behalf of ARDIAN IBRAHIMAJ, Alien.

Certifying Officer: William Carlson
Atlanta National Processing Center

Appearances: Paul Krauss, Esquire
Law Offices of Albert Wunsch, III
For the Employer

Before: Romero, Kennington, and Rosenow
Administrative Law Judges


This matter arises under Section 212(a)(5)(A) of the Immigration and Nationality Act, 8 U.S.C. §1182(a)(5)(A), and the “PERM” regulations found at Title 20, Part 656 of the Code of Federal Regulations (“C.F.R.”).


By submission postmarked May 23, 2007, the Employer mailed to the Certifying Officer (“CO”) an Application for Permanent Employment Certification for the position of Cook (AF 21-30 ).1 The CO accepted the application on August 28, 2007, and issued a denial determination regarding the application on nine grounds (AF 18-20). In a letter dated September 14, 2007, the Employer requested a review of the application (AF 5-6). The Employer argued that it had substantially complied with the regulations but had mistakenly overlooked portions of the application. On January 6, 2010, the CO issued a letter stating that the Employer’s request did not overcome all the deficiencies of the application and that the case was being forwarded to the Board of Alien Labor Certification Appeals (Board or “BALCA”) for administrative review. The denial notification stated that the application was denied because the foreign worker did not sign Section L-2 of the ETA Form 9089 before submission and that the wage offered was less than the prevailing wage listed in Section F of the ETA Form 9089.2

The CO forwarded the case to BALCA on January 6, 2010 and BALCA issued a Notice of Docketing on February 1, 2010. The Employer filed an appellate brief on March 12, 2010, arguing that the alien worker resides in a rural region of Kosovo with limited mail service, forcing the Employer to submit the application without the alien worker’s signature. Additionally, the Employer’s counsel argued that the stated high end of the range ($600 per week) satisfies the prevailing wage requirement under the law.


The PERM regulations require an employer seeking to apply for permanent labor certification on behalf of an alien to file an ETA Form 9089. 20 C.F.R. § 656.17(a). The burden is on the employer to ensure that it is submitting a complete application to the Certifying Officer. 20 C.F.R. § 656.2(b); All Ohio Air Filter Sales & Service Co., 2009-PER-205 (April 7, 2010); Alpine Store Inc., 2007-PER-40 (June 27, 2007). Failure of the preparer to sign Section M of the Form 9089 is not a mere technicality. TLH Construction Corp., 2010-PER-688 (Aug. 19, 2010).

The regulation at 20 C.F.R. § 656.17(a) states in pertinent part that:

Except as otherwise provided by Sec. Sec. 656.15, 656.16, and 656.18, an employer who desires to apply for a labor certification on behalf of an alien must file a completed Department of Labor Application for Permanent Employment Certification form (ETA Form 9089). The application must be filed with an ETA application processing center. Incomplete applications will be denied. Applications filed and certified electronically must, upon receipt of the labor certification, be signed immediately by the employer in order to be valid. Applications submitted by mail must contain the original signature of the employer, alien, attorney, and/or agent when they are received by the application processing center. DHS will not process petitions unless they are supported by an original certified ETA Form 9089 that has been signed by the employer, alien, attorney and/or agent.

In this case, the Employer’s representative argued that the alien worker did not have an address in the usual sense because of his village’s rural location and as a result, no signature could be obtained before the submission of the ETA 9089. The Employer’s representative stated that the CO acted in an arbitrary and capricious manner by failing to provide the Employer an opportunity to cure the deficiency.

We disagree. The burden is on the Employer to ensure the application as submitted is complete. Moreover, as noted in the
regulation, a visa petition will not be processed by DHS without an original signature of the alien. The Employer’s attempt to attach a copy of the alien worker’s employment contract with his current employer in Kosovo is insufficient. We therefore agree that the labor certification should be denied.


IT IS ORDERED that the denial of labor certification in this matter is hereby AFFIRMED.

For the Panel:

Administrative Law Judge

NOTICE OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Order will become the final decision of the Secretary unless within twenty days from the date of service a party petitions for review by the full Board. Such review is not favored and ordinarily will not be granted except (1) when full Board consideration is necessary to secure or maintain uniformity of
its decisions, or (2) when the proceeding involves a question of exceptional importance. Petitions must be filed with:

Chief Docket Clerk
Office of Administrative Law Judges
Board of Alien Labor Certification Appeals
800 K Street, NW Suite 400
Washington, DC 20001-8002

Copies of the petition must also be served on other parties and should be accompanied by a written statement setting forth the date and manner of service. The petition shall specify the basis for requesting full Board review with supporting authority, if any, and shall not exceed five double-spaced pages. Responses, if any, shall be filed within ten days of service of the petition, and shall not exceed five double-spaced pages. Upon the granting of a petition the Board may order briefs.

1 In this decision, AF is an abbreviation for Appeal File.

2 Because we have affirmed the denial on the grounds that the alien worker failed to sign the application, we found it unnecessary to reach the prevailing wage issue.

Client Reviews

I've had the pleasure of conducting business with this law firm for the last 10 years. They have been nothing but the best for every aspect of immigration need I had. From F1 all the way to citizenship. They're probably the most affordable, knowledgeable, and most efficient immigration law firm out there. Plus, they always provide responses to questions in a very timely manner. Trust me, other immigration law firms will cost you an arm and a leg for the same or less of a service compared to this law firm. Give them a call, check out their website. You will not regret it.
Andy Glasgow
Andy Glasgow
17:26 27 Mar 17
Because of John and his team my wife and I were able to travel back to the states, get married and have a Green Card without any headaches. John’s efforts were amazing and it shows because my wife and I didn’t have to go to the Green card interview. We had a strong enough case to receive the Green card in the mail. If you’re seeking a Lawyer that will be impartial, he’s your guy.
19:18 23 Feb 17
Me & husband went through immigration process which thankfully was made easy with the help and services of Marc Tyler Inc. Our direct contact was John which i want to personally say Thank You ! The service provided was efficient, fast, affordable prompt answers in a timely fashion. I would recommend Marc Tyler Inc to anyone who need immigration done fast, easy, friendly & with no hidden charges.
Aleksandra Stoycheva
Aleksandra Stoycheva
15:27 26 Jan 17
I could not have asked for better service. I will definitely be coming back to get the green card process done. The fees are extremely reasonable and they stick with their clients the entire way. I had so many questions during this process, and each one of them were answered very quickly and with out most professionalism. This firm is a pleasure to work with and I highly recommend them to anyone.
bryan mowrey
bryan mowrey
06:41 25 Nov 16
Marc and John Dorer worked on our case to file for AOS after our L1A was approved.Marc and John are professionals and extremely reasonable-priced. The reason they are able to cut the price is because they don't spend time consulting you or guiding you and will never get on call.All communications are email only, so if you know precisely what you want they will do all the paper-work, follow the trail and get the job done. If you are confused and need advice and consulting, they may not be the right lawyers.But since we were doing our AOS, it worked out perfectly well and they did their job extremely professionally.Would recommend them every time to get the work done.
hardik parikh
hardik parikh
01:58 08 Feb 17
At first I thought I could have very well gone through the green card application process on my own and saved all lawyer fees. Its funny how some lawyers can charge in excess of 2K for this. However at Taylor and Associates the price seemed more reasonable and felt it made sense to go with one at that price. There were some doubts that arose in our mind which they cleared in a timely manner and seemed very knowledgeable in this area. Its for moments like these when having a professional around helps. While we can get busy with our lives and with laws constantly changing, I would definitely recommend them - a small price to pay for peace of mind.
Callistus Pereira
Callistus Pereira
17:51 06 Jun 17
I am US citizen. We hired Marc's firm for my wife's Green Card process, We are extremely happy with their services.They are one of the best service providers in the country. Price is very affordable. John is awesome. He responded to our queries on time with very useful information. We highly recommend this firm to anybody looking for affordable and the best immigration services. it was an awesome experience working with this team.
Narsimha M
Narsimha M
13:57 04 Aug 17
Mark and team went above all my expectations of an 'online' service agency I went in with very low expectations to match the low cost of the service and was amazed that the experience was no different than going through an expensive attorney. They were very prompt on responses, very patient and also very knowledgeable on every facet of the application (including a follow up checklist). I would highly recommend them considering the low cost they charge and the high risk we take by doing this ourselves
First Dhalsite
First Dhalsite
22:27 01 Sep 17
USVISANOW streamlined the paperwork which saved us so much time. This also reduced the stress involved in filling out the paperwork. They also are very understanding and respond very quickly to questions and emails. Jackline is now a US citizen which took less than 5 months. Thank you Mr. Taylor and your team. From Brian and Jacky.
Jackline Osero
Jackline Osero
17:32 12 Sep 17
The best law agency I have ever worked with. Very responsive, experienced. I trusted my green process to them and it was done perfectly without and issues in minimum possible period. Thank You Very much Marc, John and others!!!
Hrach Gyulzadyan
Hrach Gyulzadyan
16:38 30 Sep 17
My husband and I worked with John Dorer from Marc Taylor's office, and his services exceeded our expectations. He was very knowledgeable, responsive, and our Green Card process and interview from start to finish went smoothly. Thank you so much, John, for your dedication to our case and all your help. I would highly recommend USAVISANOW to all!
Sophia Nguyen
Sophia Nguyen
17:26 09 Oct 17
Marc and John helped me apply and get my green card. They are very specific about needed documents and other details. Also, they are very responsive when you have a question. I know I emailed them several times just to ask questions that I could have found answers online myself. They are very patient and professional. If you want to get great services with reasonable fees contact them!
Amin Bagheri
Amin Bagheri
11:54 12 Oct 17
Used the services of this office for Green Card through AOS and was mainly in contact with John Dorer. I was unsure about their services at first, considering the unusually affordable cost but was pleasantly surprised by their prompt responses to all our questions and their timely preparing and handling of our documents! Will be using their services again when filing for removal of condition! Definitely recommended!
Lisa Lorentzon
Lisa Lorentzon
22:56 10 Dec 17
my wife and i worked with John Dorer from Marc Taylors Associates. He's services were awesome and amazing. i would recommend him to anybody applying for their permanent resident to work with them.
Seun Olanrewaju
Seun Olanrewaju
15:33 22 Dec 17
I was very pleased with their professional service from the beginning to the end for my citizenship application. I am a professional working in the higher education and somewhat familiar with the immigration process. For that reason, I was thinking of applying it by myself but I found Taylor and Associates whose service fee is very affordable and worth of my time. Indeed, they found some of minor mistakes in my application, which could have delayed much longer for my application process. Luckily, they caught and fixed them immediately. Their communication was excellent. In fact, everything was very smooth. Even after I had the approval notice, they followed up with valuable advices. I strongly recommend their service if you need immigration services. Thank you Marc and John for your excellent services.
Dominic Choo
Dominic Choo
17:12 23 Dec 17

Read More Client Reviews