April 20 , 2009

In JJR MEXICAN GRILL, INC, (2008-PER-00132), BALCA determined that the employer's SWA job order was not long enough in duration. It upheld the decision of CO that the employer’s placement of a job order after the denial determination could be used to support a new application but could not cure the defect in the case at hand.

In this case, the CO accepted the Employer’s labor certification application for a position as a Restaurant Manager. The Employer indicated in the application that this was not a professional occupation. The CO denied the application because the application did not indicate that a job order was placed with the State Workforce Agency (“SWA”) serving the area of intended employment for a period of 30 days.

The employer sought reconsideration on the ground that it placed a new advertisement with the SWA subsequent to the denial. The CO denied reconsideration, holding that a new job order, placed after the application had been filed, could only be used to support a subsequent filing but not to cure the defect in the case at hand.

BIA concurred, and petitioner's appeal was denied.

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