Top 10 Posts on The Insightful Immigration Blog in 2016

 Thank you for reading and supporting The Insightful Immigration Blog. Listed below are the top 10 most viewed blogs in 2016. While these are the 10 most viewed blogs, each blog is a carefully crafted gem, and we invite you to read all of them. In 2016, we covered a wide range of topics, including the high skilled worker rule, STEM Optional Practical Training, decisions of the Board of Alien Labor Certification Appeals, ethics, and Trump’s many views on immigration.   We will continue to provide insightful commentary on contemporary immigration issues in 2017, and there will surely be much to cover under the new Trump administration! We wish all of our supporters and well-wishers a very happy New Year!

  1. A Closer Look At The Form I-983 – Training Plan for STEM OPT Students
  2. Perspectives On Immigration In 2016 Through My Crystal Ball
  3. Analysis of Key Provisions of the High Skilled Worker Final Rule
  4. Is Hillary Clinton’s Silence On H-1B Visas Golden?
  5. No Longer So Fast!  An Examination of EB-1 Retrogression For Indian And Chinese Born  Foreign Nationals
  6. Can a STEM OPT Student Be Employed At A Third Party Client Site?
  7. A Trap For The Unwary: Equivalent Degree And Alternate Requirements In Labor Certification Applications
  8. BALCA Reverses Labor Certification Denials By Upholding Real World Job Advertisements
  9. The Role Of The Immigration Lawyer In The Age Of Trump
  10. Don’t Forget Skilled Workers Who May Have to Wait For  A  Few Centuries Before Getting the Green Card

 

 

The Ethical Role of a Lawyer Under a Trump Administration

Ever since Donald Trump won the election, many immigrants have justifiably become fearful. During his election campaign, Trump engaged in harsh rhetoric against immigrants. He said he would build a wall and deport 2 to 3 million immigrants with criminal records. Trump also promised that he would rescind President Obama’s deferred action program for young people, known as Deferred Action for Childhood Arrivals (DACA), who arrived in the United States prior to the age of 16 and are out of status. There are also proposals of banning immigrants from certain countries or areas, as well as engaging in extreme vetting of people from Muslim countries as well as reviving the registration program.

The role of the immigration lawyer has become ever more important since Trump winning the election, and the prospects for increased immigration enforcement after January 20, 2017 when Trump is President. While Trump has softened some of his harsh rhetoric since the election, many of his advisors are in favor of strong enforcement such as Jeff Sessions who will be the Attorney General and other immigration hardliners such as Kris Kobach and Stephen Miller. Hence, the fear is palpable, and immigration lawyers have been inundated with calls from worried clients.

Undocumented immigrants fearful of a new enforcement machine will rely on the immigration lawyer to advise them on how they can remain in the country, especially if they have US citizen children. In the event that DACA is rescinded, although there is an ameliorative legislative proposal whose outcome is uncertain, DACA recipients may want to know whether they can change their address, which would be different from the address that was provided in the application. Similarly, even lawful permanent residents with a criminal records and who are vulnerable to deportation may ask the same question of the lawyer. Employers will want to know whether they can continue to hire a DACA employee if the program will be rescinded. A DACA employee will want to know whether she can continue working for the employer if the employer does not realize that the work authorization has expired.

What are the lawyer’s ethical obligations when advising a client fearful of a Trump presidency? A lawyer is under a duty to vigorously represent the client. According to Rule 1.3 of the ABA Model Rules of Professional Conduct, “A lawyer shall act with reasonable diligence and promptness in representing a client.” Comment 1 to Rule 1.3 provides, “A lawyer should …take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” On the other hand, a lawyer can only represent her client within the bounds of the law. Under Model Rule 1.2(d), “A lawyer shall not counsel a client to engage or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist the client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

The key issue is whether counseling an unauthorized immigrant to remain in the U.S., even indirectly (such as by advising of future immigration benefits), is potentially in violation of Model Rule 1.2(d) or its analog under state bar ethics rules.

While practitioners must ascertain the precise language of the analog of Model Rule 1.2(d) in their own states, one can argue that overstaying a visa is neither “criminal” nor “fraudulent” conduct. Even while an entry without inspection (EWI) might be a misdemeanor under INA §275, it is no longer a continuing criminal violation to remain in the U.S. after the EWI. Although being unlawfully present in the U.S. may be an infraction under civil immigration statutes, it is not criminal or fraudulent, and given the paradoxical situation in our immigration system where an undocumented noncitizen can eternally hope to gain legal status (such as if a US citizen child turns 21 or if the individual is placed in removal and obtains cancellation of removal), a lawyer ought not to be sanctioned under Model Rule 1.2(d) or its state analog with respect to advising individuals who are not in status in the U.S.

Of course, the most prudent approach is to refrain from expressly advising or encouraging a client to remain in the U.S. in violation of the law; and instead, present both the adverse consequences and potential benefits to the client if he or she chooses to remain in the United States in violation of the law. In fact, adopting such an approach becomes imperative when remaining in the U.S., in certain circumstances, does constitute criminal conduct. For instance, failure to depart after a removal order pursuant to INA 237 (a) within 90 days under INA §243 renders such conduct a criminal felony. Even here there is an exception at INA §243(a)(2), which provides: “It is not in violation of paragraph (1) to take any proper steps for the purpose of securing cancellation of or exemption from such order of removal or for the purpose of securing the alien’s release from incarceration or custody.” Moreover, there are provisions that allow a person who received a final removal order many years ago to reopen if the government consents to such reopening and there is available relief against deportation. See 8 C.F.R. § 1003.2(c)(3)(iii); 8 C.F.R. § 1003.23(b)(4)(iv).

The ethical lawyer must also be a competent lawyer who is capable of analyzing all the nuances and contours of statutory and regulatory provisions. Even if the DACA program is cancelled, the employment authorization document (EAD) is not unless the government specifically revokes it pursuant to 8 CFR 274a.14(b), and only after the EAD recipient has been given an opportunity to respond through a Notice of Intent to Revoke. Thus, a lawyer can ethically advise that an unexpired EAD still authorizes the DACA recipient to work in the US, and for the employer to continue to employ this person. In the event that a DACA client’s employment authorization has expired, but the employer is not being represented by the same lawyer as the DACA client, this lawyer is under no obligation to alert the employer if it did not notice the expiration of the employment authorization. The employer may be subject to employer sanctions for continuing to employ an unauthorized worker while the DACA client is in any event amenable to deportation whether he is working or not.

Lawyers should also be exploring for alternative opportunities for DACA recipients under immigration law. If they have a legal basis for permanent residence, they should explore it, such as through marriage to a US citizen spouse or through some other green card sponsorship basis. Even if they cannot adjust status in the US if they previously entered without inspection, they can leave on advance parole and return without triggering the 3 or 10 year bar, which would provide a basis for eligibility to adjust status as an immediate relative of a US citizen.  Alternatively, they can take advantage of the provisional waiver rule, which allows one to waive based on extreme hardship to a qualifying relative the 3 or 10 year bars in advance of the departure from the US in order to process the immigrant visa at the US consulate.  These suggestions are by no means exhaustive and may not be accomplished by January 20, 2017 when Trump takes office, so DACA recipients must consult with advocacy organizations and attorneys to fully explore all their options.

A lawful permanent resident who may have a criminal conviction cannot be immediately removed from the United States. He is first subject to removal hearing and must be served with a Notice to Appear. Not all criminal conduct results in removal. Even if a criminal conviction is considered a crime involving moral turpitude or an aggravated felony, it should be carefully considered if such a characterization can be contested under the categorical approach. This approach, best exemplified in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) and Descamps v. United States, 133 S. Ct. 2276 (2013), requires identification of the minimum prosecuted conduct that violates the criminal statute rather than the conduct of the respondent in removal proceedings.

Permanent residents are in a rush to file for naturalization, but the lawyer must carefully review the client’s history to ensure that nothing comes up during the naturalization process that could trigger some ground of removability, such as an improperly obtained green card or a criminal conviction. If the client still wants to take the risk of applying for naturalization, the lawyer must also determine if there are grounds for a waiver in removal proceedings, and should also advise that it is likely that discretionary waivers may be less readily granted within a bureaucracy that is oriented towards enforcement rather than grating immigration benefits.

It may be an exercise in futility for the lawyer to advise a client to move residence so as to avoid detection, even when the client is not being actively pursued and there is no outstanding warrant. If the DHS wishes to initiate removal proceedings, it can do so by serving the Notice to Appear by mail. It would be better if the undocumented immigrant received the NTA at the last known address that the government has rather than not receiving such an NTA and being subjected to an in absentia removal order. While an in absentia order can be reopened for lack of notice, it is time consuming, stressful and the results are uncertain. In any event, an AR-11 has to be filed whenever a person changes address. If a person with a removal order reports that she is being pursued by ICE agents, it would be ethically problematic for the lawyer to advise this person to evade ICE agents by changing address. Remaining in the US after a removal order is a felony under INA 243 and a lawyer should not be advising a client to engage in criminal conduct, although a lawyer could, if applicable, advise such a client on ways to overcome the removal order or to seek a stay of removal or apply for other prosecutorial discretion remedies such as an order of supervision. It would be clearly unethical for a lawyer to advise a client who is facing ongoing removal proceedings to not honor hearing dates as it would lead to a removal order in absentia, and the lawyer will be held responsible for providing ineffective assistance to her client.

The immigration lawyer must also be mindful of potential criminal penalties that can be applied for providing advice to a person who is unauthorized to remain in the United States. There exists a relatively untested provision under INA 274(a)(1)(A)(iv) which criminally penalizes any person who:

“encourages or induces an alien to come to, enter, or reside in the United States in knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law”

This provision, which involves encouraging someone to reside in the US in violation of law, is a companion to other related criminal provisions such as “brings to” or “smuggling” (INA 274(a)(1)(A)(i)), “transportation” (INA 274(a)(1)(A)(ii)), and “harboring” (INA 274(a)(1)(A)(iii)). While these three provisions relating to smuggling, transportation and harboring are discrete and Congress intended to cover distinct groups of wrongdoers, see US v. Lopez, 590 F.3d 1238 (11th Cir. 2009) the “encouraging” provision is more broad based and could potentially apply to a person who encourages an undocumented person who is already residing in the United States to do so in violation of the law. In U.S. v. Oloyede, 982 F.2d 133 (4th Cir. 1992), a lawyer was convicted under a predecessor of this provision for representing persons at the former INS who were sold false social security and employment documents by a co-conspirator. Although these facts in U.S. v. Oloyede are rather egregious and would not usually apply to ethical lawyers, the following extract from the Fourth Circuit decision is worth noting:

Appellants maintain that Section 1324(a)(1)(D) is solely directed to acts bringing aliens into the country. However, the plain language states, “knowing that [the illegal alien’s] residence is or will be in violation of the law.” (Emphasis supplied). Because the use of the verb “is” clearly connotes the present status of the illegal aliens’ residence in this case within the United States, it can only be understood to apply expressly to actions directed towards illegal aliens already in this country.

To the best of this author’s knowledge, the “encouraging” provision has never been applied to a lawyer providing routine advice to an unauthorized immigrant who desires to continue to remain in the United States in hope for a remedy in the future, such as a US citizen child turning 21 in a few years, that would enable her to adjust status in the United States or in the hope that the law may change to his benefit. However, it is important to know that such a provision of this sort does exist and could be applied more broadly by an administration that has an enforcement mindset. In the event of overzealous prosecution, a lawyer who carefully remains within the confines of ABA Model Rule 1.2(d) would have a good defense. Comment 9 to Model Rule 1.2(d) is a golden nugget, which summarizes the delicate balance that the attorney ought to strike when representing a client who may be undocumented but who has potential relief in the future:

Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.

Finally, when immigrants are frightened and vulnerable, they will seek desperate measures such as applying for political asylum. The filing of a political asylum application enables the individual to remain in the United States and even apply for work authorization if the application has been pending for 150 days or more. If there is a meritorious claim for asylum, a lawyer ought to pursue it on behalf of the client, after the client has been informed, and provided consent, about the risks. There is a possibility that the claim, if not granted at the affirmative level, could be referred before an Immigration Judge in removal proceedings. If the client is unable to win before an Immigration Judge, he or she would end up with a final removal order. If the asylum claim is filed after one year, and the exceptions to filing after one year cannot be met, there is an even greater chance that the application will be referred into removal proceedings. For a claim to be meritorious the lawyer must ascertain whether the client can provide a detailed statement regarding his claim to asylum and there is a sufficient nexus on one of the protected grounds. Even if there is a precedent decision against a particular ground for an asylum claim, the lawyer must ask whether there are good faith grounds to seek a reversal of the adverse precedent decision.

The standard for what constitutes a meritorious claim is provided in ABA Rule 3.1:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

Thus, even if the ultimate objective of filing an asylum application is to ultimately seek cancellation of removal, the asylum claim must still be meritorious. It behooves the ethical practitioner to refer to recent AILA resources, namely, Ethical Considerations Related to Affirmatively Filing an Application for Asylum for the Purpose of Applying for Cancellation of Removal and Adjustment of Status for a Nonpermanent Resident and Nine Ethical Questions to Consider before Filing Asylum Claims to Pursue COR.

Last and not the least, however sympathetic the circumstances may be, the ethical lawyer should never assist in filing an application knowing that it  contains a false statement of fact or law. Although there are clear rules, ABA Model Rule 3.3 and 8 CFR 1003.103(c), that expressly prohibit such conduct, the lawyer could also be implicated under federal criminal provisions such as 18 USC 1001, 18 USC 371 and 18 USC 1546.

BALCA Update: Recent Notable Cases

While we have no idea what the labor certification process will look like under the Trump administration, it still behooves all PERM practitioners to keep up with the Board of Alien Labor Certification Appeals (BALCA) decisions as they continue to directly affect how we prepare and file PERM applications. To that end, this blog will provide a brief summary of recent notable BALCA decisions.

Listing non-quantified skill requirements on the ETA Form 9089

At a December 7, 2016 meeting between the Department of Labor (DOL) Liaison Committee of the American Immigration Lawyers Association (AILA) and the DOL’s Office of Foreign Labor Certification (OFLC), OFLC representatives stated that pending review of the BALCA decision,  Smartzip Analytics, 2016-PER-00695 (Nov. 9 2016), they have suspended the issuance of denials involving the issue presented in that case and are preparing an FAQ relating to unquantified experience in Section H.14.

As background, after issuing PERM approvals dating back more than a decade to the inception of the PERM program, the DOL suddenly started to deny PERM applications where the employer included a requirement for a specific amount of work experience in sections H.6 and H.10 of the ETA Form 9089 and also a non-quantified skill requirement in section H.14. For example, in addition to indicating a requirement of a Bachelor’s degree plus 5 years of experience, an employer might also indicate in section H.14 that qualified applicants “must have experience in C++, Java & COBOL.” The DOL started denying labor certifications where the foreign national’s work experience in Section K of the ETA Form 9089 indicated the required work experience (in this example 3 years) but not also a full 3 years of experience in the specific technologies listed in section H.14.

While an indication of the quantified experience required is requested in sections H.6 and H.10, which ask whether experience in the job offered or in an alternative occupation is required, and “if yes, number of months of experience required” the same is not required in section H.14. The ETA Form 9089 indicates that H.14 should be used to list “specific skills or other requirements.” The instructions to the ETA Form 9089 also state that, in this section, the employer should “Enter the job related requirements. Examples are shorthand and typing speeds, specific foreign language proficiency, and test results. The employer must be prepared to document business necessity for a foreign language requirement.” Nowhere does it state that a specific number of months or years must be indicated in H.14.

In recent denials, the DOL argued that a failure to quantify the experience in H.14. left the Certifying Officer (CO) unsure as to how much experience was actually being required and uncertain of how to review applicants’ qualifications.

Then, in Smartzip Analytics, the employer listed the minimum requirements on the ETA Form 9089 as a Bachelor’s degree in Computer Science, Engineering or a related field and 60 months of experience in the job offered with 60 months of experience in any related occupation also being acceptable. In section H.14, the employer listed the following:

Experience must include experience with: delivering native mobile products at scale; publishing iOS application; Objective-C, iOS SDK, Cocoa Touch, Xcode, Interface Builder, and Auto-Layout; knowledge of Apple Human Interface Guidelines; Java.

The CO denied the application because Section K of the ETA Form 9089 did not demonstrate that the foreign national had 60 months of experience in the specific skills listed in section H.14. In a request for reconsideration the employer argued that it did not require any specific amount of experience for the skills listed in H.14. The CO held his ground and argued that by not qualifying the skills experience the employer could require more experience or proficiency of US worker applicants than it required of the foreign national and that the CO had no way of determining whether the foreign national met the employer’s requirements for the position. The employer appealed to BALCA.

BALCA relied on reasoning employed in another case, Apple, Inc., 2011-PER-01669 (Jan. 20, 2015) where BALCA considered whether the information presented in Section K of the ETA Form 9089 established that the foreign national met the special skills requirements listed in section H.14 and held that the ETA Form 9089 only solicited information about the foreign national’s work experience and did not solicit information regarding his skills gained outside of employment. Following the same reasoning, the panel in Smartzip similarly held that, unlike sections H.6 and H.10, in section H.14 the ETA Form 9089 does not solicit a statement of a duration requirement for the special skills. BALCA held that failure to provide a duration requirement for the special skills cannot be the basis for a denial without legally sufficient notice of a requirement to do so.

Hopefully, the forthcoming FAQ will clearly specify how special skills ought to be listed and make a clear distinction between skills like Java versus skills like the ability to type 50 words per minute or to speak French. While it might make sense for an employer to require 6 months of experience in using Java, there really would be no point to a requirement that the employer also issue a duration requirement for the ability to speak a foreign language or type at a certain speed.

Use of terms like “Depends on Experience (DOE)”, “Competitive”, “Negotiable” or similar language in recruitment in lieu of listing the actual wage

In late 2015, the DOL started a round of PERM denials setting forth another new and previously unheard of reason for denial. Despite having certified these types of PERMs for years, the DOL started denying PERM applications where the employers, in their PERM recruitment, used terms such as “Competitive,” “Depends on Experience” (DOE), “Negotiable,” “Will Discuss With Applicant,” “Other,” or similar verbiage in lieu of stating the offered salary. I previously blogged about this here. The DOL claimed that terms like “Depends on Experience” and “Negotiable” could be vague and could place a potential burden on the US worker to reasonably determine the wage rate for the position or could indicate that an applicant’s experience might potentially cause the employer to offer a salary which is lower than the salary offered to the foreign worker. According to the DOL, a term like a “Will Discuss With Applicant” could prevent a potentially qualified US applicant from making an informed decision on whether he/she would be interested in the actual job opportunity, and could deter a number of such applicants from applying. The denials claimed that the employers, by listing terms that potentially deterred US workers from applying, did not adequately test the labor market. Numerous motions to reconsider were filed.

Recently, Matter of Tek Services LLC, 2016-PER-00332 (Nov. 17, 2016), the employer’s recruitment did not specify a particular salary but indicated that the employer was offering a “competitive salary.” For reasons similar to those described above and in my previous blog, the CO denied the application. BALCA reversed the denial finding that the CO did not cite a specific regulatory requirement that had been violated by the employer. BALCA was not convinced by the CO’s argument that reading the words “competitive salary” creates a burden on US workers to identify the competitive wage because these applicants are under no obligation to identify this wage before applying for the position. BALCA pointed out that reading “competitive salary” in an ad also does not prevent applicants from making an informed decision on their interest in the job because this is more informative than an advertisement that is totally silent regarding the wage, an approach perfectly permissible under the regulation.

OFLC representatives have informed that they are currently reviewing the BALCA decision in Matter of TekServices and they have suspended all denials involving this issue.

Rejecting an applicant based on salary expectations

It is completely lawful to reject a US worker who desires a salary that is higher than the offered wage. But, the case of Techorbits, Inc., 2015-PER-00214 (Dec, 9. 2016) serves as a cautionary tale.

The employer filed a PERM application for the position of Business Development Manager. The application was audited. After reviewing the audit response, the CO denied the application finding that the employer had unlawfully rejected two applicants without interview claiming that the applicants desired a higher salary than the salary offered for the position. The CO stated that the employer was required to follow up with the applicants to verify whether they would accept the position at the offered salary.

In a Request for Reconsideration the employer argued that both applicants had been interviewed through interview questionnaires and phone interviews. The employer submitted an affidavit from the interviewer as to what was discussed in his interview with Applicant S.T. The employer also argued that Applicant M.D. rejected the job opportunity stating that “he would have considered this salary a few years ago, but not now.”

The CO denied the Request for Reconsideration. Regarding Applicant M.D., the CO found that he was indeed lawfully rejected based on the minimum salary he stated on the interview pre-screening form. However, Applicant S.T.’s pre-screening form indicated that his minimum salary was “open to discussion” and his resume indicated a wide range as his desired salary. The CO held that the employer had ample opportunity to submit the affidavit from the interviewer of Applicant S.T. in the audit response but did not do so. Therefore, the CO refused to consider it in the Request for Reconsideration. Without considering this affidavit, there was nothing else in the record to demonstrate that wages were ever discussed in an interview with Applicant S.T. and a rejection based on his requested salary listed as “open to discussion” was unlawful.

BALCA agreed with the CO. Without evidence to the contrary, it appeared that Applicant S.T. was rejected based on his responses to the employer’s pre-interview questionnaire. Even the employer’s email to Applicant S.T. stated, “Your minimum salary requirement you indicated on the questionnaire is higher than what is being offered for the position.” This did not help the employer in trying to prove that the applicant had been rejected based on his answers during an actual interview.  The employer also tried to argue that Applicant S.T. never responded to the employer’s rejection email to dispute the employer’s statements. BALCA shut down this argument stating that the onus is not on the applicant to correct an employer’s erroneous assumption.

BALCA also pointed out that an employer may reject an applicant as unwilling to accept the salary offered only after the position has been offered to the applicant at the salary listed and there is documentation of the offer and the applicant’s refusal. BALCA cited various cases that stand for the requirement that the position must first be offered to the applicant and the applicant must actually decline based on the low salary.

It’s interesting that BALCA did not comment about Applicant M.D. The CO found that he was lawfully rejected based only on his indication of a higher salary on his pre-interview questionnaire. But he did not actually receive and decline a job offer.

This case provides some helpful tips and reminders. An employer’s reliance on a US worker’s statements or demands as a lawful reason(s) for rejection must be very carefully documented. Pre-interview questionnaires are a great tool but employers need to carefully review them and follow up in an interview with the applicant on any statements that could potentially be used to reject the applicant. A statement indicating that the applicant will discuss wages with the employer is obvious but it might be best to also discuss an applicant’s indication of desired wage that is higher than the offered wage. This way the employer has a chance to actually inform the applicant of the offered wage and get his withdrawal of his application if he finds the wage too low.  And, as the employer learned in the instant case, an interviewer’s affidavit is an important part of the audit file and best practice dictates that it should be prepared and executed right after the interview and submitted as part of the employer’s audit response.

Is a PERM position really a “future” position if the Beneficiary is already employed in the position?

In Bally Gaming, Inc., 2012-PER-10729 (Sept. 2, 2016) the employer filed a PERM application for the position of Software Engineer located in Egg Harbor Township, NJ. The CO noted that the foreign national resided in Kennesaw, Georgia and in an audit notification requested documentation demonstrating the location of the offered position.

In the audit response, the employer explained that the foreign national currently performs the duties of the position at both locations based on the employer’s business needs but the offered permanent position will in fact be located in NJ. The employer’s application for a prevailing wage determination (PWD) indicated the New Jersey location and no travel requirement.

The CO denied the case finding that the employer had failed to obtain the proper PWD since the foreign national would also be working in Kennesaw, Georgia and failed to indicate a travel requirement on the ETA Form 9089. The employer filed a Request for Reconsideration and explained that the CO had actually misinterpreted its audit response. The employer explained that the foreign national holds H-1B status and is permitted under his H-1B to work in both locations but the permanent position does not entail any travel between the two locations.

The CO denied the reconsideration request based again on its incorrect interpretation of the PWD. The CO also stated that since the employer is permitting the foreign national to live in Georgia and travel to New Jersey to perform the job duties then the foreign national is receiving a benefit of travel or remote work that applicants for the job opportunity were not offered. The CO forwarded the case to BALCA.

The employer submitted a brief to BALCA arguing that the temporary H-1B position and the permanent position offered on the labor certification are different and that there is no legal requirement that the PERM application be for the same position in which the foreign national is employed in nonimmigrant status.  BALCA found that the employer’s PWD was indeed fully consistent with the ETA Form 9089 and also agreed with the employer that there is no requirement in the PERM regulations or in the Immigration and Nationality Act that both positions be identical. The case was remanded for certification.

What’s interesting about this case is contained in footnote 7 where BALCA suggests that there remains the question of whether the CO could deny certification on the basis of the employer’s failure to offer US workers the same benefit of travel or remote work that the foreign worker was already receiving. Due process concerns prevented BALCA from examining this issue. Since the CO initially asserted this basis for denial on a request for reconsideration, the employer was effectively denied any opportunity to address the new basis and, if appropriate, supplement the record in its request for reconsideration by the CO. BALCA also declined to address this question since it already made the determination that the CO had erred in requiring that the permanent position and the temporary position be identical.

At this point in time, we have the benefit of guidance which was not available to the employer in Bally Gaming. We know that the DOL has confirmed that the 1994 Barbara Farmer memo remains the controlling guidance on issues relating to employees who do not work at a fixed location. The DOL is still flagging cases where the foreign national’s residence is not within commuting distance of the work location. Inasmuch as a PERM position is an offer of “future” employment, if the foreign national already holds the position and is afforded a benefit in order to perform in the position, employers must be careful to offer that same benefit to US workers. I previously blogged here and here about employers’ obligation to list items or conditions of employment in its advertisements.

Other interesting cases

Micron Technology, Inc., 212-PER-02116 (Aug. 1, 2016) – BALCA held that an employer may not reject applicants for not having taken specific courses when the ad only required “knowledge of…” The employer was obligated to explore other ways in which the applicants may have gained the required knowledge.

Humetis Technologies, Inc., 2012-PER-02098 (Aug. 4 2016) – In response to an audit notification, the employer submitted email correspondence between the employer and the newspaper of general circulation. The correspondence indicated the title of two occupations to be advertised along with a description of the requirements for each position. The email confirmed that an ad would be placed online in the newspaper but did not verify the dates of publication or confirm the employer’s payment for the publication.

The regulations at 20 CFR 656.17 provide that an employer “can” document its placement of two Sunday ads by furnishing copies of the newspaper pages or proof of publication furnished by the newspaper. Various BALCA cases have established that other types of documentation could also be accepted but must be reasonably equivalent to the proof listed in the regulations. However, BALCA held that the employer’s failure to product tear sheets, a publisher’s affidavit or additional proof of publication deprived the CO of concrete evidence of the timing of the ads and the publication actually used.

Robert Bosch LLC, 2012-PER-01739 (Aug. 25, 2016) – The CO denied certification because of a discrepancy between the total number of resumes (62) stated in the recruitment report submitted with its audit response and the total number of job applicants (61) for which rejection reasons were cited in the recruitment report.  The Employer requested reconsideration, explaining that the discrepancy was the result of a typographical error in its “recruitment chart” and it offered a corrected version of the recruitment report.  BALCA held that the CO properly refused to accept and consider the employer’s corrected recruitment report which was prepared after the initial denial and thus barred by 20 C.F.R. §656.24(g)(2)(ii) which precludes an employer from submitting in an Request for Reconsideration, documentation that it previously had an opportunity to submit.

One tiny and unintentional mistake could bring a quick and unfortunate end to what is a costly and often lengthy process for an employer and foreign national. But reviewing only one BALCA case can make all the difference. Despite the fact that the DOL continues to constantly shift the goal posts in the PERM process, reviewing these cases can not only assist with avoid pitfalls but can also provide encouragement when considering appealing to BALCA.