A Big Win at the Board of Alien Labor Certification Appeals (BALCA)

Posted on April 20th, 2016 by immatty

We want to share a significant recent BALCA decision reversing a denial for temporary labor certification under the H-2B program (04/15/2016). The BALCA agreed with Employer that the Certifying Officer (“CO”) had misinterpreted ‘worksite’ and “in the case of a Heavy and Tractor-Trailer trucker, the trucking terminal is the only worksite address within the meaning of the regulations…”

The Employer is a trucking company and delivers goods to 48 states. Through the Notices of Deficiency, the CO refused to accept that the employer has only one worksite/office/terminal and ultimately denied the request for temporary labor certification, requiring additional applications for other geographic regions where the truckers travel. The CO argued that the Employer did not comply with the regulatory requirements because only one application was filed, and the CO stated that the truckers will work at multiple worksites across different areas of intended employment, each requiring an application.

The BALCA agreed with Employer, stating that truckers’ delivery and pickup locations would not qualify as “worksites.” The BALCA further comments that if the CO’s concept of worksite(s) is correct, trucking companies would be excluded from using the H-2B program since they would be required to file a new application for each delivery location.

Kudos to our very own Sunyoung Hur for her excellent advocacy on behalf of our client.