Tag Archive for: BALCA

Cyrus Mehta

The Long, Windy, Bumpy, and Outrageous Road to Labor Certification feat. Two Sunday Ads

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By Cyrus D. Mehta and Jessica Paszko*

It’s no secret that employers wishing to sponsor a foreign national for permanent employment must jump through many bureaucratic hoops that Congress once envisioned would ensure that foreigners are not stealing jobs from U.S. workers. One of those bureaucratic hoops in the PERM labor certification process is conducting a series of recruitment steps. In addition to conducting two mandatory recruitment steps, including placing a job order with the State Wage Agency and placing two print advertisements on two different Sundays in a paper of general circulation, employers must also select any three out of ten additional recruitment steps that are outlined in the regulations. Although well intentioned and enacted to ensure that employers first demonstrate that they were unable to find qualified U.S. workers, the Department of Labor (“DOL”) continues to use these very technical requirements as a pretext to deny labor certifications, as was the case in Matter of Kolla Soft, Inc., 2018-PER-00184 (March 30, 2022).

In Matter of Kolla, an Arizona based employer filed a PERM labor certification sponsoring a foreign worker for permanent employment for the position of software engineer. The DOL denied certification on the grounds that the employer failed to comply with the mandatory recruitment step of placing two Sunday ads because the newspaper East Valley Tribune used by the employer “is not a newspaper of general circulation in the area of intended employment most likely to bring responses from available U.S. workers.” Pursuant to 20 C.F.R. § 656.17(e)(1)(i)(B), the employer must place “an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers.”

The DOL pointed to the newspaper’s “About Us” section on its website which stated that the newspaper is delivered to selected areas in Mesa, Gilbert, Chandler, Tempe and Queen Creek only and not available for delivery or pick up in the Phoenix or Scottsdale area. On reconsideration, the employer argued that the East Valley Tribune “is distributed through Maricopa County, the largest populated county in Arizona which obviously includes the county’s two largest cities, Phoenix and Scottsdale.” According to the employer, it was a given that the newspaper would be available in the newspaper’s two largest cities in its area of circulation in Maricopa County. In support, the employer submitted an affidavit from the publisher of the East Valley Tribune stating that its newspaper is available for home delivery and in the cities of Phoenix and Scottsdale, Arizona, and is a newspaper of general circulation throughout Maricopa County, Arizona. The employer also urged the DOL to consider the fact that the East Valley Tribune has placed numerous PERM advertisements and that its status as a newspaper of general circulation has never been previously questioned. The employer even submitted evidence that the newspaper updated its “About Us” section on its website and that it now includes Scottsdale as an area of home delivery and retailer distribution as well as evidence that the East Valley Tribune is the third largest newspaper in Arizona.

Unconvinced by the employer’s arguments and mountains of persuasive evidence, the DOL affirmed the denial on reconsideration. According to the DOL, the regulations require “that the mandatory advertisements appear in the newspaper most appropriate to the occupation and the workers most likely to apply for the job opportunity,” and the East Valley Tribune was not the most appropriate newspaper to advertise the job opportunity because with three day per week publishing and a circulation of 97,573 copies, it was the third largest newspaper in the area of intended employment. Upon administrative review, the Board of Immigration Appeals (“BALCA”) found that the employer provided sufficient evidence on reconsideration demonstrating that the East Valley Tribune is a newspaper of general circulation in the area of intended employment. It ultimately affirmed the denial, however, due to the employer’s failure to state why the East Valley Tribune is the “most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers” (emphasis included). Absent such evidence, the BALCA found that the record demonstrated that The Arizona Republic, a daily newspaper in Phoenix, Arizona published seven days a week with circulation of 321,600 copies, rather than the East Valley Tribune, which is published three days each week and a circulation of 97,563 copies, “is the most appropriate newspaper to advertise the job opportunity and most likely to solicit responses from U.S. workers.” Similarly, in a prior decision, Matter of Intercontinental Enterprises, Inc., 2011-PER-02756 (July 30, 2012), the BALCA similarly concluded that the employer had not satisfactorily compiled with the Sunday ad requirement because even though it placed the ads in The Washington Examiner which had a “reasonably large circulation”, the employer failed to establish that it was the best choice for the job at issue.

Business immigration practitioners who have failed to consider the significance of the regulation’s requirement that Sunday ads be placed, not only in a newspaper of general circulation but also, in a newspaper “most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers” may be feeling unsettled by the decision in Matter of Kolla. It appears that the employer in Matter of Kolla was no stranger to the PERM labor certification process and had placed ads in this particular newspaper before without issue. Perhaps this particular labor certification was intended for a position that the employer had never filled before or maybe this unlucky employer’s labor certification simply fell onto the desk of a particularly picky certifying officer at the DOL. Admittedly, the BALCA does seem to have a point given that there exists a daily newspaper in Phoenix which is published more frequently and circulated to a higher volume of readers. Maybe if the employer had proffered a good enough reason for choosing the newspaper that it did to advertise for the position, for instance, because that particular newspaper was read by a higher number of U.S. workers seeking software engineer positions, the case would have turned out differently. By contrast, the BALCA held in Matter of Gallup McKinley Schools, 2013-PER-03215 (Oct. 3, 2017), that ads placed in local or ethnic newspapers, which employers may place to satisfy one of the additional recruitment steps, need not comply with the same standard as the Sunday ad. In that decision, the BALCA concluded that because the regulation at 20 C.F.R. § 656.17(e)(1)(ii)(I) does not contain similar to § 656.17(e)(1)(i)(B)(1), i.e., language requiring that the ad be placed in a newspaper “most likely to bring responses from able, willing, qualified, and available U.S. workers”, it does not follow that an employer must abide by the “most likely” standard when selecting a local or ethnic newspaper. But still, if the employer places such an ad in bad faith, the DOL can deny the labor certification under the catch all provision at 20 C.F.R. § 656.24(b)(2) which provides, in pertinent part, that the “Certifying Officer makes a determination either to grant or deny the labor certification on the basis of whether or not: . . . [t]here is in the United States a worker who is able, willing, qualified, and available for and at the place of the job opportunity.”

As business immigration attorneys based in New York City with corporate clients in New York City, we hardly ever see employers place Sunday ads in newspapers other than the New York Times. There is no doubt that the New York Times is a newspaper of general circulation in New York, the tri-state area, and maybe even the entire United States, but the decision in Matter of Kolla has left us wondering whether the New York Times is always the most appropriate newspaper. In light of this decision, we cannot forget to take into account that Sunday ads must not only be placed in newspapers of general circulation but also in newspapers that are most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers. While an ad in the New York Times may be the most appropriate for most professional positions, an ad for the position of a welder, for instance, may be more appropriately placed in a different newspaper of general circulation in New York, such as the New York Post or the Daily News.

At the same time though, we cannot help but balk at this decision and the government’s strict reading of the regulations and its pretextual use of them to close the door on employment of foreign workers every chance they get. As lawyers, we understand and appreciate the need to comply with the letter of the law, but also cannot help but wonder if the government lives under a rock. While we agree that U.S. workers should be given first dibs on available jobs, we also recognize and see firsthand how tight the U.S. job market continues to be and that there are plenty of jobs to go around for both U.S. and foreign workers. The regulations have been carefully crafted to protect the very important obligation that employers first attempt to find U.S. workers by requiring, not one, not two, not three, but rather, five recruitment steps, thus ensuring that available and qualified U.S. workers will be informed of the job opportunity before a labor certification is filed. Yet, even in today’s modern, digital age, the government, with its rose-colored glasses, continues to place an unnecessarily high importance on two Sunday ads as if today’s technologically savvy workforce still flocks to the newsstands each Sunday to look for open job positions. The reality of searching for a job is markedly different today than what the legislators envisioned when they drafted the regulations. It also bears reminding that the labor certification process is not designed for employers to hire U.S. workers. Although the employer is required to conduct a good faith test of the U.S. labor market, if a qualified U.S. worker does apply, the employer is not required to hire the U.S. worker and is only precluded from filing the labor certification. Of course, based on the lessons learned from the Facebook settlement, if the employer does not hew closely to how it would normally recruit for U.S. workers, the Department of Justice’s Civil Rights Employee and Immigrant Rights Section can accuse an employer with discriminatory practices under INA § 274B(a)(1).

While we understand that compliance with the law, however absurd, is necessary, and will continue to advise clients to purchase ad space in newspapers, we also disagree with the government’s reluctance to ease up on these very technical, outdated requirements. Instead of finding insufficiencies between a newspaper with a circulation of 321,600 copies that is published seven days a week and a newspaper with a circulation of 97,573 copies that is published three days a week, the regulation’s purpose may be better served by the government’s focus on how much traffic a particular job search website gets, for instance. The government’s focus on these insignificant details, on the ground that they are accurate measures of how likely workers are to apply for a job opportunity, is truly misguided. Instead of spending time and resources to review cases like Matter of Kolla, and not simply granting labor certifications when an employer facially meets all requirements, the government may stand to benefit and get a much needed wake up call by obtaining statistics on how many U.S. workers actually read the Sunday paper to find work. Until that happens, denials of labor certifications like that in Matter of Kolla will continue and will further confirm our suspicion that the government’s primary concern is not that job opportunities are taken away from U.S. workers but that the road to permanent employment remain rampant with obstacles.

 

*Jessica Paszko is an Associate at Cyrus D. Mehta & Partners PLLC. She graduated with a J.D. degree from Brooklyn Law School in 2021.

 

Cyrus Mehta

Florida Detox Centers Provides Further Guidance on Resume Review in Labor Certification Recruitment

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By Cyrus D. Mehta & Jessica Paszko*

Under the Immigration and Nationality Act (“INA”), U.S. employers wishing to sponsor a foreign worker for employment and permanent residence must first prove to the Department of Labor (“DOL”) that there are no sufficient workers who are able, willing, qualified and available for the prospective job and that hiring the foreign worker will not adversely affect the wages and working conditions of workers in the U.S. similarly employed. INA § 212(a)(5)(A)(i).

Before employers can file an Application for Permanent Employment Certification, or Form 9089, sponsoring a foreign worker, they must conduct a good faith recruitment effort and ascertain whether there are U.S. workers available for the job. Employers may only reject applicants for lawful, job related reasons in accordance with 20 C.F.R. § 656.10(c)(9), such as when an applicant is not qualified for the job opportunity. However, the regulations also provide that a U.S. worker is able and qualified for the job opportunity if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training. 20 C.F.R. § 656.21(e)(4). Therefore, an employer may lawfully reject a U.S. worker for being unqualified, only if the employer determines that a U.S. applicant does not meet the requirements listed on Form 9089 and the U.S. applicant could not acquire the skills during a reasonable period of on-the-job training.

Previous decisions by the Board of Alien Labor Certification Appeals (“BALCA”) have indicated that where an applicant’s resume shows a broad range of experience, education, and training that raises a reasonable possibility that the applicant is qualified, even if the resume does not expressly state that the applicant meets all the requirements, the employer bears the burden of further investigating the applicant’s credentials. See Blessed Sacrament School, 96-INA-52, slip op. at 3 (Oct. 29, 1997); Matter of Goldman Sachs & Co., 2011-PER-01064 (June 8, 2012). These decisions discussed in a previous blog put pressure on employers to interview U.S. applicants, no matter how convinced they may have been that the applicants were unqualified for the position based on their resumes, or else risk a denial of the foreign worker’s labor certification. However, a recent BALCA decision, Florida Detox Centers, 2017-PER-00236 (Aug. 24, 2021), may offer some leeway to employers by allowing them to reject applicants on the basis of their resumes.

In Florida Detox Centers, the employer sought to employ an “Operations Analyst” with “two years of experience in the job offered,” and having found no such U.S. worker, filed Form 9089 sponsoring a foreign worker for the position. The employer was subjected to supervised recruitment by the DOL. In its recruitment report, the employer stated that it received 240 applications for the job opportunity, interviewed 20 applicants it found to be potentially qualified and rejected 220 applicants because they did not possess the minimum of two years of experience based on the face of their resumes. The DOL denied labor certification, finding that the employer rejected a potentially qualified U.S. applicant without an interview even though there was a reasonable possibility that the applicant met the requirements of the job opportunity.  The applicant’s resume clearly indicated that the applicant lacked the required two years of experience in the job offered. Nonetheless, the DOL argued that the employer did not meet its burden by failing to investigate the applicant further and conducting an interview. The DOL pointed to the applicant’s resume which indicated experience similar to the job duties described on Form 9089 as well as the applicant’s four years of experience in the Operations Analyst/Strategic Sourcing Coordinator industry.

In the matter before the BALCA, the employer, on reconsideration, thoroughly expanded on its reasons for rejecting the applicant and detailed why the applicant was unqualified for the job opportunity such that an interview or further inquiry was unnecessary. The employer argued that it was not able or willing to accept less than two years of experience, as stated on Form 9089, nor should it have been required to do so, given the high specific vocational preparation level (“SVP”) of 8 assigned by the DOL for the occupation of Operations Analyst under O*Net Code 13-1111. An SVP of 8 generally requires between four and ten years of education, training, and/or experience, but the employer was only requiring two years of experience in the job offered. The employer compared each duty identified in the Form 9089 to the applicant’s resume and determined that the applicant only had experience in 25% of the job duties described in the form. The employer also stated that the applicant lacked any experience in three important job duties described in the form. According to the employer, it was “unrealistic to . . . consider an applicant completely lacking experience in nearly 40% of the job duties,” especially given the employer’s requirement of a minimum of two years of experience in each job duty. The employer claimed not to have a duty to investigate the applicant further given the level of detail in the applicant’s resume which allowed it to readily determine that the applicant’s experience was not similar or relevant to the job opportunity.

The BALCA was satisfied with the employer’s explanation for rejecting the applicant and that the employer, in the selection process, concluded that based on the applicant’s resume and its business operations and staffing, that the applicant possessed two years of experience in only 25% of the job duties, and that for the remaining 75% of the job duties, the applicant would require a full two years of training in 40% of the job duties, and more than the normal six months of training in the remaining 55% of the job duties. The BALCA found that the employer’s explanation, which the employer substantiated by detailing the specific period of time that training would take, sufficiently demonstrated that the applicant could not acquire the necessary experience through a reasonable period of on-the-job training. The BALCA accepted the employer’s argument that it should not be required to offer more than 6 months of on-the-job training for an Operations Analyst assigned an SVP level of 8 because the additional training “would severely jeopardize the operational and financial well-being of the business, particularly when the specific purpose of [the job opportunity] is to improve and maximize efficient and effective operations” of the business.

While the BALCA’s conclusion appears helpful to employers, it should not be taken to mean that all employers can avoid a labor certification denial by relying on the argument that necessary job experience cannot be acquired through a reasonable period of on-the-job training. Indeed, in a 2012 decision, Kennametal Inc., 2010-PER-01512 (Mar. 27, 2012), the BALCA found that the employer rejected a number of applicants for other than lawful, job-related reasons. There, the employer did not merely reject applicants based on their resumes alone but rather interviewed them and only after the interview determined that they did not possess the requisite qualifications, namely knowledge in Unigraphics and heat transfer and fluid dynamics. According to the BALCA, the employer’s argument that training unqualified employees in using Unigraphics and learning heat transfer and fluid dynamics would involve a substantial and unreasonable amount of training was “not acceptable.” Apparently, the employer had not met its burden in establishing that it was not feasible to train a U.S. worker. The employer’s failure to substantiate its claims that the applicants would only be qualified if they already possessed these skills and failure to give the specific time that training would take proved fatal to its application.

While Florida Detox Centers may offer a reprieve from the rather harsh ruling of Matter of Goldman Sachs & Co. by allowing employers to reject unqualified candidates on the basis of their resumes alone, employers must detail the specific period of time that training the applicant would take and explain why the applicant could not acquire the necessary experience through on-the-job training. However, coupled with Kennametal Inc., it is clear that what the DOL or the BALCA really care about is that employers investigate how long training an unqualified applicant would take. In Florida Detox Centers, the employer clearly required that an applicant possess two years of experience in a number of job requirements and thus an unqualified applicant could only acquire that experience in two years’ time. Whereas in Kennametal Inc., the employer wholly failed to consider that training unqualified applicants in two specific job duties could take six months, or a reasonable period of time. Indeed, had the employer in Kennametal Inc., determined that such training would take much longer, the BALCA may have decided differently. In JP Morgan Chase & Co., 2011-PER-01000 (Jul. 16., 2012), the employer too won based on a resume review alone when the resumes did not indicate that the applicants met the employer’s requirement, which was “Proficiency in Excel or Access,. . .understanding of databases (Lotus Notes and SharePoint), must have experience liaising with a technology team to develop/update product enhancement tool, databases and work flow engines . . . .” The key issue for the BALCA was whether or not the employer’s stated minimum requirements were established as a business necessity. Note that in Florida Detox Centers, on the other hand, the employer did not ask for any specific requirements which it could establish through business necessity and instead simply required two years of experience in the duties of the offered position. The BALCA in JP Morgan Chase stated that the employer had submitted a business necessity explanation in its recruitment report detailing why it requires an understanding of Lotus Notes and SharePoint and why job training was not feasible; the DOL did not contend that these requirements were unduly restrictive; and the resumes of the U.S. worker applicants showed that they did not have the required skills. Based on this, the BALCA held that the DOL cannot dismiss the employer’s stated requirements and substitute its judgment for the employer’s.

Therefore, while employers may survive a labor certification denial even where they fail to interview potentially qualified applicants, they must provide details of why the applicant did not meet the duties or requirements of the position based on a review of the resume as well as detail the specific period of time that training the applicants would take. A bare assertion that it is not feasible to train a U.S. worker will not be accepted.

[This blog is for informational purposes and should not be considered as a substitute for legal advice]

*Jessica Paszko is a Law Clerk at Cyrus D. Mehta & Partners PLLC. She graduated with a J.D. degree from Brooklyn Law School in 2021, passed the New York Bar Examination and is awaiting admission to the New York Bar.

Cora-Ann Pestaina

Recent BALCA Cases Highlight the Importance of Choosing the Right Sunday Newspaper

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In June 2019, the Board of Alien Labor Certifications Appeals (BALCA) issued at least ten decisions that addressed the employers’ choice of Sunday newspaper in the PERM labor certification recruitment process. So maybe they wanted to make a point? Let’s discuss.

As background, an employer must conduct a good faith recruitment of the labor market in order to obtain labor certification for a foreign national employee. The PERM recruitment process, whether for a professional or a nonprofessional position, requires employers to place two Sunday advertisements in a newspaper of general circulation. As PERM practitioners, having read the regulations, how confident are we on advising employers regarding which newspaper to use for Sunday ads? Some New York practitioners say that they always advise employers to use the New York Times. Others say they’ve successfully used the Daily News but have felt scared each time. What about the New York Post?  Over the years the question just keeps coming up. The Department of Labor (DOL) has not provided any specific guidance. One FAQ contains the following question and answer:

Question:         What is considered an acceptable newspaper and/or acceptable journal and is there a published list?

Answer:            There is no published list of acceptable publications.

Most employers, based on their normal recruiting efforts, will be able to readily identify those newspapers…that are most likely to bring responses from able, willing, qualified and available U.S. workers.

I am not sure if the newspapers are as readily identifiable as the DOL expects.

For nonprofessional positions, 20 C.F.R. 656.17(e)(2)(ii) requires that the employer place “an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity.” For professional occupations, there is the added requirement that the newspaper be “most likely to bring responses from able, willing, qualified, and available U.S. workers.” See 20 C.F.R. 656.17(e)(1)(i)(B)(I). A nonprofessional occupation is defined as any occupation for which the attainment of a bachelor’s or higher degree is not a usual requirement for the occupation. A professional occupation is an occupation for which the attainment of a bachelor’s or higher degree is a usual education requirement. See 20 C.F.R. 656.3.

The ten recent BALCA decisions each involved the posting of Sunday ads in the Washington Examiner which was a free newspaper of general circulation in Maryland, D.C. and Virginia (it no longer publishes a Sunday newspaper). Eight of the decisions involved nonprofessional positions and two involved professional positions. In Matter of Fernando Lawn Services, LLC, 212-PER-01989 (Jun 6, 2019) the employer recruited for the position of Assistant Manager which required 2 years of experience as an assistant manager and a high school diploma. The CO denied the application on the sole ground that the Washington Examiner was “not a newspaper of general circulation most likely to bring responses from available U.S. workers.”  As authority, the CO cited 20 C.F.R. 656.17(e)(1)(i)(B)(l) which relates to professional occupations. The employer requested reconsideration or review and argued that the job was nonprofessional; the Washington Examiner was a newspaper of general circulation in the intended area of employment and was most likely to bring responses from able, willing, qualified, and available U.S. workers. However, the CO denied the motion for reconsideration on the same sole ground even though he cited the regulations relating to both professional and nonprofessional occupations thereby conflating the standards applicable to professional advertising with those applicable to nonprofessional positions.   The case was then forwarded to BALCA.

BALCA reexamined existing, inconsistent case law that involved the Washington Examiner. Capital Building Services, Inc., 2012-PER-01971 (Feb. 12, 2013) involved the position of Cleaning Supervisor. The job requirements were two years of experience and therefore the position was nonprofessional. The CO denied certification because the employer used the Washington Examiner as its newspaper of general circulation. The majority BALCA panel disagreed with the CO and ordered certification.  They distinguished the case from Intercontinental Enterprises, Inc., 2011-PER-02756 (July 30, 2012). In Intercontinental Enterprises, the CO denied certification, finding that the Washington Examiner was not the newspaper of general circulation most appropriate to the occupation and the workers likely to apply for the job opportunity because it involved the professional position of Senior Food Technologist. The BALCA panel noted that the regulatory history of the regulations recognized a distinction between professional and nonprofessional occupations. Specifically, when the regulations were being promulgated, the Employment and Training Administration explained in the proposed rule:

Under the current system [i.e., the pre-PERM regulations], the employer may advertise, when a newspaper of general circulation is designated as the appropriate advertising medium, in any newspaper of general circulation. However, our experience has shown that some employers routinely place newspaper advertisements in those newspapers with the lowest circulation and that these publications are often the least likely to be read by qualified U.S. workers. Therefore, in order for the employer’s job opening to receive appropriate exposure, the proposed regulation requires that the mandatory advertisements appear in the newspaper of general circulation most appropriate to the occupation and the workers most likely to apply for the job opportunity in the area of intended employment. For example, in a relatively large metropolitan area such as Philadelphia, Pennsylvania or Washington, DC, it would not be appropriate to place an advertisement for a computer professional in a suburban newspaper of general circulation since workers interested in professional jobs consult the metropolitan newspapers in the area of intended employment with the largest circulation rather than the suburban newspapers of general circulation. On the other hand, it would be appropriate to advertise in a suburban newspaper of general circulation for nonprofessional occupations, such as jewelers, houseworkers or drivers.

ETA, Proposed Rule, Implementation of New System, Labor Certification Process for the Permanent Employment of Aliens in the United States [“PERM”], 20 C.F.R. Part 656, 67 Fed. Reg. 30466, 30471 (May 6, 2002).

The Intercontinental Enterprises panel acknowledged that The Washington Examiner was not a mere suburban newspaper, but found that the employer failed to establish that it was the newspaper in the Washington, D.C. area most appropriate to the occupation in question and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers. Essentially, The Washington Examiner was not appropriate to recruit for professional positions.

The panel in Capital Building Services found that the case was distinguishable from Intercontinental Enterprises because it presented an application involving a nonprofessional position and thus, the persons likely to apply are different types of job seekers. However, in his dissent, then Associate Chief Administrative Law Judge Johnson agreed with the majority that The Washington Examiner is a newspaper of general circulation and that the regulatory history indicates that a suburban newspaper of general circulation would be appropriate for certain nonprofessional occupations. But he disagreed with majority panel’s implication, by way of their grant of certification, that an employer may base its newspaper selection on less than the best newspaper choice for the occupation and the area of intended employment.

Further, in Millenniumsoft, 2012-PER-00636 (Nov. 23, 2015), regarding the position of Programmer Analyst, BALCA found that the use of the Washington Examiner was not appropriate for professional positions under either Intercontinental or Capital Building. The panel questioned the majority’s statement in Capital Building that the publication was a good choice for nonprofessional positions, noting that the statement did not seem consistent with the employer’s obligation under the regulation to use the newspaper “most likely” to attract domestic applicants. The “most likely” provision applies only to professional positions but the language “most appropriate to the occupation and the workers likely to apply for the job opportunity” appears in the criteria for both professional and nonprofessional positions. Several other BALCA panels go back and forth on finding the Washington Examiner to be either appropriate or inappropriate for recruitment for nonprofessional positions.

The panel in Fernando Lawn Services, after reviewing all the case law, agreed with the majority in Capital Building Services and held that the Washington Examiner is a newspaper of general circulation that may be a good choice for advertising certain types of jobs in the Washington, DC area; and the regulatory history indicates that a suburban newspaper of general circulation would be an appropriate choice for certain nonprofessional positions. BALCA held that an employer does not need to establish that its chosen newspaper is the best publication or has the greatest circulation where a nonprofessional occupation is involved. Rather, it must be established that it was “most appropriate to the occupation and the workers likely to apply for the job opportunity.” Since the employer asserted that the Washington Examiner was most appropriate and the CO offered nothing to refute this and did not identify the newspaper in which the Sunday ads should have been placed and explain why that paper would have been a better choice, the CO erred in denying the application.

Of the remaining nine recent cases, BALCA found the Washington Examiner to be the appropriate for nonprofessional positions such as Pipelayer, Server, Maintenance Repairer, Mason, Mechanic, and Cook and called out the CO for applying the standard applicable to professional positions to labor certification applications for these positions. See Eastern Pool Co. Inc., 2012-PER-01849; Fil Parong, 2012-PER-01167; Mount Vernon country Club, Inc., 2012-PER-02764; Daco Construction Corporation, 2012-PER-03333 and 2012-PER-03539; City Concrete Corp., 212-PER-02516 and Nova Europa Restaurant, 212-PER-03442, all issued on June 6, 2019.

In Georgetown Hill Early School, 2012-PER-03334, the offered position was that of a Teaching Assistant and required a Bachelor’s degree. The CO denied the application upon concluding that the Washington Examiner was not appropriate for recruitment for a professional position. In the end, BALCA did not accept the employer argument that the publication was targeted at young urban professionals and commuters and was widely read by white collar professionals and stated that this is not the standard but rather, it must be the newspaper “most likely to bring responses from able, willing, qualified and available U.S. workers” under the criteria for professional occupations appearing in 20 C.F.R. 656.17(e)(1)(i)(B)(1). See also, Software Catalysts, LLC, 2012-PER-01899 (Jun, 6, 2019).

BALCA cases can often serve as a warning of what is to come. Could the DOL soon start to focus more of its attention on the Sunday paper? While these recent cases focus on one paper in one geographic area, they are very important to highlight the importance of careful consideration when deciding on a Sunday newspaper of general circulation especially in relatively large metropolitan areas such as New York where there may be several newspapers that qualify as a “newspaper of general circulation.” It may not suffice to use the New York Times for a nonprofessional position such as a Nanny if the New York Times is not the paper “most appropriate to the occupation and the workers likely to apply for the job opportunity.” An argument that the New York Times has the highest circulation may not be successful if it cannot be proven that an out of work Nanny would likely search for a job in the New York Times as opposed to other newspapers of general circulation such as the New York Post or Daily News. In several of the ten cases discussed above, the CO actually checked the classified sections on the newspaper tear sheets provided by the employer and observed that the Washington Examiner’s classified sections included “no more than 30 total job listings over two pages, while they included nine pages of legal notices.” As practitioners, we ought to pay close attention to the types of advertisements that appear in different newspapers so that we are prepared to demonstrate that the employer has chosen the correct newspaper and to be able refute potential assertions made by a Certifying Officer in denying an application. There is no perfect method for making these determinations but in the end, the application ought to be certified as long as the employer has abided by the regulations and has demonstrated good faith recruitment. Hopefully.

Cora-Ann Pestaina

How Binding Are DOL FAQs?

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As PERM practitioners, we are all familiar with Department of Labor’s (DOL) Frequently Asked Questions (FAQs). Going as far back as 2005, the year of the inception of the PERM program, there have been various rounds of DOL FAQs on a wide range of topics including on how to file or withdraw a PERM application; how to prepare a PERM Recruitment Report; on the best practices for appeals to the Board of Alien Labor Certification Appeals (BALCA); on what constitutes a familial relationship; on Supervised Recruitment; and on and on. PERM practitioners rely on these FAQs to explain DOL’s requirements and expectations in the preparation and filing of PERM applications. These FAQs can even be used to remind the DOL of its own requirements when an erroneous PERM denial has been issued. But, at the end of the day, how binding is a DOL FAQ? Can the DOL deny a PERM application solely because the instruction in an FAQ was not followed? This issue was discussed in the following cases.

In Matter of Guess?, Inc. 2015-PER-00504 (June 28, 2017) the Employer filed a PERM application seeking to sponsor the foreign national for the offered position of Senior Financial Analyst. The Employer listed the job requirements as a Bachelor’s degree in Finance and 60 months of experience in the job offered. In Box. H.14 of the Form 9089, the Employer further stated that CPA licensure is required. However, when the Employer listed the foreign national’s qualifications in Sections J and K of the Form 9089, there was no indication that the foreign national was a licensed CPA. The Certifying Officer (CO) denied the application because the foreign national’s qualifications listed on the Form 9089 failed to demonstrate that he met the requirements for the offered position, specifically CPA licensure. The CO noted that Section K of the Form 9089 instructs employers to list all jobs the sponsored foreign national has held as well as any other experience that qualifies the foreign national for the job opportunity.  The CO further pointed out that the Office of Foreign Labor Certifications (OFLC) had published guidance through an FAQ on July 28, 2014, prior to the Employer’s submission of the Form 9089. To read the FAQ, click here and scroll to “Alien Experience.” The FAQ states:

When the employer lists specific skills and other requirements for the job opportunity in Section H, Question 14, the employer must also demonstrate on the ETA Form 9089 that the foreign worker possesses those skills and requirements. In order to do so, the employer should list separately in Section K all the foreign worker’s qualifications, such as certificates, licenses, professional coursework, or other credentials that meet the requirements to perform the job opportunity listed in Section H, if those qualifications have not already been explicitly identified under information about the jobs held in the past three years. If not listed elsewhere, the list of certificates, licenses, professional coursework, or other credentials held by the foreign worker and required in order to perform the job opportunity, should be entered after all jobs held in the past three years are listed, under Question 9, “Job Details (duties performed, use of tools, machines, equipment, etc.)”

Since the Employer did not list on the Form 9089 that the foreign national possessed a CPA license, as instructed by the FAQ, the CO concluded that denial of the Form 9089 application was authorized by 20 C.F.R. §656.17(i)(1) which states that the “job requirements, as described, must represent the employer’s minimum requirements for the job opportunity.” Essentially, the CO found that by including a CPA licensure requirement the Employer had indicated requirements which exceeded the foreign national’s qualifications.

The Employer requested reconsideration of the CO’s denial and submitted evidence of the foreign national’s CPA license. The Employer also argued that Section K of the Form 9089 only allows for entry of the foreign national’s work experience and that the CPA license could not have been submitted online. The Employer also argued that since the CPA license existed prior to the submission of the PERM application and since the CO did not issue an audit to request a copy, then the CO ought to accept proof of the CPA license submitted as part of the request for reconsideration in accordance with BALCA’s decision in Denzil Gunnels, 2010-PER-00628 (Nov. 16, 2010) which we previously blogged about here.

The CO upheld the denial and stated that:

[A]n FAQ is sufficient to adequately apprise the general public of changes in the Department of Labor, Office of Foreign Labor Certification policy or processing of Permanent Employment Certification Applications (PERM). Therefore, in accordance with the Department’s FAQ published on July 28, 2014, for applications filed on or after July 28, 2014, an employer seeking Permanent Employment Certification must demonstrate the foreign worker identified on the application meets all license, certificate, and requirements listed on the ETA Form 9089, at the time the application is submitted for processing.

The Employer filed a request for Board review and argued that (1) the July 28, 2014 FAQ does not cure the deficiencies in the Form 9089 and its instructions. (2) that the DOL cannot establish a substantive new rule that applications will summarily be denied for failure to list a foreign national’s licenses because the FAQ was not promulgated through the notice and comment process required to comport with due process in rulemaking; (3) that the DOL posts and removes FAQs without notice and in an inexplicable manner and that FAQs can be hard to find; and (4) that the CO erred in refusing to consider the copy of the CPA license submitted with the Employer’s request for reconsideration.

BALCA acknowledged that its panels have consistently upheld denials of certification where the employer ignored the clear directive in the Form 9089 instructions to list “all” of the foreign national’s qualifying experience. But BALCA also acknowledged that is has also ruled that applications cannot be denied based solely on an employer’s failure to include information on the Form 9089 where it is not apparent how that information could be included on the application and cited, among other cases, Smartzip Analytics, 2016-PER-00695 (Nov. 9, 2016) and Apple Inc., 2011-PER-01669 (Jan. 20, 2015) which I previously blogged about here.

BALCA found that the July 28, 2014 FAQ was an attempt by the OFLC to correct the deficiency in the Form 9089 and its instructions in regard to listing special skills, certificates, licenses and professional coursework that are not included in the required recitation of the foreign national’s qualifying job experience and that no changes have been made to the Form 9089 to address the deficiency. BALCA noted that neither the Form 9089 nor its instructions say anything about including special skills, certificates, licenses and professional coursework that are not included in the listing of the foreign national’s qualifying job experience. BALCA also found that the FAQ was silent regarding the consequences an employer may face for non-compliance with the FAQ guidance. Finally, BALCA held that the FAQ is not an appropriate and legally effective method of correcting shortcomings in the Form 9089 and its instructions and it was therefore arbitrary and inconsistent with the requirements of due process and fundamental fairness for the CO to deny the Employer’s PERM application based on a failure to state on the Form 9089 that the foreign national has a CPA license. BALCA found that the CO should have asked the Employer to submit supplementary information/documentation through the audit procedure. In the absence of an audit request, BALCA found that the CO ought to have accepted the Employer submission of a copy of the CPA license as part of its request for reconsideration.

Similarly, in Solar Turbines, Inc., 2016-PER-00025 (June 2, 2017), the CO denied the Form 9089 application, without an audit, because the Form 9089 did not establish that the foreign national possessed the skills required to perform the job. Specifically, the Form 9089 indicated that the position required academic or industry experience in the full use and application of “heat transfer, Finite Element Analysis, drafting/CAD (Pro-E), or applied thermodynamics” and the Employer did not list these skills in Section K of the Form 9089. The Employer sought reconsideration supplying the missing information and contending that there was no space on the application form to include such information. However, the CO reaffirmed the denial noting that an FAQ issued in July 2014 explained how the information could have been added to the form. BALCA reversed the denial concluding that the CO had erred in not considering the information submitted along with reconsideration request since the employer had not had a prior opportunity to submit the information. 20 C.F.R. §656.24(g)(2)(ii). BALCA agreed with the Employer that the limitations of the Form 9089 and its instructions “effectively prevented the presentation of the documentary evidence concerning the Alien’s specific qualifications to the CO.”

BALCA also spoke on FAQs in Matter of Arbin Corporation, 2013-PER-00052 (Jun, 29, 2017). In that case, after review of the Employer’s audit response, the CO denied the Form 9089 application based on a determination that the recruitment advertisements in a newspaper and on a job search website did not provide a description of the job vacancy specific enough to apprise U.S. workers of the job opportunity as required by 20 C.F.R. § 656.17(f)(3). Specifically, the CO found that the Employer’s newspaper and job search advertisements failed to mention “delivery of products” as described in the job duties listed on the Form 9089. The CO characterized “delivery of products” as a travel requirement, and he stated that had the Employer disclosed this travel requirement “to U.S. workers for the same job description which was provided to the foreign worker, potential U.S. applicants may have been interested in a company which would afford them the opportunity to travel.”

The Employer acknowledged that its advertisements did not refer to “delivery of products” and instead contained a “shortened” description of job duties. In addition, the Employer argued that if the CO believed that a hidden travel element should be disclosed then the Employer had done so by virtue of the fact that its advertisements indicated that the job requires the applicant to “maintain and repair Arbin battery testing systems” and also by virtue of the job title of “Customer Support Engineer.” These two things, the Employer argued, fully advised potential job applicants that this position requires a certain level of travel. Finally, the Employer argued that its shortened description of the job opportunity in the advertisements complied with the requirements of Section 656.17(f) as clarified in FAQ guidance published on the OFLC website that advertisements are not required to enumerate “every job duty, job requirement, and condition of employment” and that “[a]n advertisement that includes a description of the vacancy, the name of the employer, the geographic area of employment, and the means to contact the employer to apply may be sufficient to apprise potentially qualified applicants of the job opportunity.” To read the FAQ, click here and scroll to “Advertisement Content.”

BALCA ultimately held that the Employer’s reliance on the FAQ is misplaced. BALCA cited the case of CSI International, Inc., 2012-PER-00614 (Nov. 4, 2015) in finding that the FAQ is a merely an expansion on the requirement at Section 656.17(f)(3) that advertisements “[p]rovide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought….” And the fact that Section 656.17(f)(3) does not require great detail about the job opportunity does not mean that an employer is exempt from including the content requirements directed by Section 656.17(f)(4) which mandates that the Employer apprise applicants of travel requirements.

The subject of FAQs also arose in Matter of Oracle America, Inc., 2015-PER-00308 (May 4, 2017), a case in which the CO denied the PERM application, after audit, based on the Employer’s failure to properly notify and consider workers it had laid off in the occupation as required by 20 CFR §656.17(k)(1). In its audit response, regarding how it notified and considered laid off workers, the Employer stated that laid-off U.S. workers had been given a notice in their termination packet with instructions on how to view and apply to any and all labor certification job opportunities that the Employer is offering. BALCA held that §656.17(k) requires specific notice to laid off workers of a job opportunity for which the employer has sought permanent labor certification. The Employer raised the subject of an FAQ (to read the FAQ, click here and scroll to “Recruitment Report”) which it argued presented an alternative to the requirement that a specific notice be provided to laid-off workers. However, BALCA held that the Employer had not complied with the guidance in the FAQ but rather, had provided the type of notification expressly rejected in the FAQ, that is, notice that simply informs the laid-off worker to monitor the Employer’s website for future openings and inviting the worker, if interested, to apply for those openings.

To what extent can the DOL utilize its FAQs as a substitute for actual rulemaking? In these cases we see BALCA find for the Employer and hold that an FAQ does not hold the power and force of the regulations. In other cases, we see BALCA indicate that the FAQ provided the Employer with means by which to comply with the existing regulations or that the FAQ represented an expansion of the existing regulations rather than a new directive. So where does that leave us? Can PERM FAQs be ignored? Certainly not. PERM FAQs have always been and will continue to be extremely important and useful to provide PERM practitioners with much needed clarity on the DOL’s requirements and expectations in the preparation and submission of PERM applications. It would serve no practical purpose to ignore FAQs only to potentially face the hurdle of a denial and an appeal to BALCA. However, to the extent that the DOL wishes to rely on one of its FAQs to create new rules and ascribe to them the force of the regulations then the DOL ought to be reminded that FAQs cannot be used to change the regulations and the issuance of an FAQ does not rise to the level of a substantive new rule because an FAQ is not promulgated through the notice and comment process required to comport with due process in rulemaking.

Cora-Ann Pestaina

7 Points To Remember Regarding Resume Review In The PERM Process

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The employer’s review of resumes received from applicants continues to be one of the trickiest issues in the PERM labor certification process. The process might seem straightforward enough because, after all, employers filing PERM applications are likely quite used to evaluating resumes from applicants. But such thinking is probably where the first wrong step is taken. I last blogged on this issue on December 2012 and my blog entitled, Resume Review in the PERM Process is still very relevant. However, I find that this issue continues to be a problematic one and worthy of a follow up.  Improper resume review continues to be one of the Department of Labor’s (DOL) most popular reasons for PERM denials.

By way of background, under the Immigration and Nationality Act, the DOL has a statutory responsibility to ensure that no foreign worker is admitted for permanent residence based upon an offer of employment absent a finding that there are not sufficient U.S. workers who are able, willing, qualified and available for the work to be undertaken and that the admission of such worker will not adversely affect the wages and working conditions of U.S. workers similarly employed. INA §212(a)(5)(A)(i). The DOL fulfills this responsibility by determining the availability of qualified U.S. workers before approving a permanent labor certification application and by ensuring that U.S. workers are fairly considered for all job opportunities that are the subject of a permanent labor certification application.  Accordingly, the DOL relies on employers who file labor certification applications to recruit and consider U.S. workers in good faith.  Under 20 C.F.R. §656.10(c), the employer must certify that U.S. workers who applied for the job opportunity were rejected for lawful job-related reasons. While the DOL has indicated that good faith recruitment requires that an employer’s process for considering U.S. workers who respond to certification-related recruitment closely resemble the employer’s normal consideration process, operating under this belief will most likely lead to problems.  I have always found that it is infinitely more effective to counsel the employer not to consider PERM as resembling any type of real world recruitment process whatsoever.

Review of the Board of Alien Labor Certification Appeals (BALCA) is a good place to stay up to date on the DOL’s reasoning on any PERM issue. Based on recent BALCA decisions, here are 7 points regarding resume review that are worth discussing with the employer at the outset of the PERM process, even before the job duties and requirements are finalized and the advertisement is drafted.

1.   Be certain that use of the Kellogg language is warranted and reflective of the actual   minimum requirements for the offered position.

2.   An applicant cannot be rejected simply because their cover letter or resume clearly states that they are seeking a completely different position.

In Global Teachers Research and Resources, Inc. 2015-PER-00396 (March 30, 2017), the employer’s job requirements for the position of Elementary Teacher were a Bachelor’s degree in Elementary Education and 60 months of experience in the job offered.  In addition, the qualified applicant also had to demonstrate eligibility for a Georgia Teaching Certificate. In section H.14 of the ETA Form 9089, the employer had also listed, “Employer will Accept any Combination of Experience, Training or Education.” This is commonly referred to as the Kellogg language based on Matter of Francis Kellogg, 1994-INA-465 (Feb. 2, 1998) (en banc).

After reviewing the employer’s response to an audit, the DOL denied the PERM application finding that the employer failed to properly consider one applicant who possessed a Master’s degree in Education/Special Education, 60 months of experience and a GA teaching license. The Certifying Officer (CO) reasoned that since the employer had indicated “Employer will Accept any Combination of Experience, Training or Education” then the employer had to consider the applicant even if she did not have a degree in Elementary Education. Oftentimes, an employer will insert the Kellogg language on the ETA Form 9089 when it is totally unnecessary. It is important to remember that this is specific language that is only required on the ETA Form 9089 when the foreign national qualifies for the offered position only on the basis of the employer’s alternative requirements. In addition, Federal Insurance Co., 2008-PER-00037 (Feb. 20, 2009) held that the failure to include this language was not fatal as there is no space on the form for such language. Some employers recall receiving PERM denials due to lack of this language prior to the decision in Federal Insurance and, not fully comprehending the issue, they feel better to just include it. It is therefore very important to discuss the meaning of the Kellogg language with the employer and whether the insertion of this language would reflect the employer’s true minimum requirements for the offered position.

The employer in Global Teachers Research and Resources filed a request for reconsideration and argued that the applicant had clearly indicated on her resume that she was seeking employment as Special Education Teacher and that this information prevented them from actually considering applicant for the offered position. However, BALCA held that since the Applicant had applied for the Elementary Teacher position and since it would be illogical for a person to apply for a position in which they were not interested, the employer was obligated to give the application due consideration. Citing a long list of precedent decisions which would make for required reading, BALCA held that an applicant is presumed to be interested in a job for which he or she applies.

3.    Be careful of rejection for lack of an unstated, “inherent” requirement.

4.    Even if an applicant may lawfully be rejected for various reasons, always list ALL   reasons for rejection in the recruitment report.

 In Matter of Los Angeles Unified School District, 2012-PER-03153 (Jan. 23, 2017) the employer recruited for the position of “Teacher, Special Education” for which it required a Bachelor’s degree in any field, a valid California Education Specialist teaching credential, and no training or experience.  After two audits, the PERM application was denied because the employer rejected an applicant finding that the applicant failed to meet the minimum requirements for the offered position because the applicant had a below satisfactory performance evaluation on her most recent student-teaching assignment.

The employer requested reconsideration and, listing several pre-PERM administrative law decisions, argued that some qualifications are simply inherent and need not be expressly stated in the job description. The employer argued that the ability to “teach special education classes competently” is one such inherent requirement that need not be expressly stated. The employer also pointed to a negative confidential reference from the applicant’s most recent teaching assignment.

BALCA dismissed all of the administrative law decisions as non-binding and stated that the PERM program demands strict compliance with the regulations which require that the job requirements described on the ETA Form 9089 represent the employer’s actual minimum requirements for the offered position. BALCA found it debatable whether one negative performance evaluation over the course of a career could demonstrate a lack of competency. But ultimately, since nothing in the employer’s stated minimum requirements indicated that an applicant cannot have a negative performance evaluation or a negative reference of any kind, BALCA found the rejection of the applicant to be unlawful. Basically, any qualification that can form the basis of a rejection ought to be listed in the advertisement. If it is not, then it cannot be used as the basis for a rejection.

However, this decision does not make sense as every inherent skill cannot be listed in the advertisement, the ability to speak English, being the prime example. There are a line of cases to support this proposition. See Ashbrook-Simon-Hartley v. McLaughlin, 863 F.2d 410 (5th Cir 1989), Matter of Ron Hartgrove, 1989 BALCA Lexis 6 (BALCA May 31, 1989), Matter of La Dye & Print Works, 1995 BALCA LEXIS 59 (BALCA April 13, 1995).

In its appellate brief the employer had also tried to insert a new argument that the applicant was also not qualified because she did not have the required teacher credential. The employer stated that it did not initially consider this but that is nevertheless a basis for rejection. BALCA dismissed this evidence finding that its review is restricted to timely submitted evidence that was part of the record when the CO made his decision. It is therefore very important that an employer conduct a complete review of each applicant’s qualifications and list each and every lawful reason for rejection of any applicant. In the instant case, despite the employer’s rejection for lack of what it considered to be an inherent requirement, if the employer had also lawfully rejected the applicant for lack of the teaching credential and demonstrated that the applicant indeed lacked the credential, the PERM might not have been denied.

5.     Never put the duty to follow up on the applicant.

Matter of Unisoft International, Inc. 2015-PER-00045 (Dec. 29, 2016) is a supervised recruitment case.  The offered position was that of Network Administrator. The employer’s PERM application was eventually denied for four reasons but only reason number 4 regards resume review. Essentially, the CO found that the employer did not conduct a good-faith recruitment effort because the employer sent out a form letter to each of 20 applicants. This letter stated, “After a preliminary review of your resume, we have determined that you do not have a few of the desired skills we are looking for including experience with MCP and SPO for OS2200.” Putting the onus of additional communication on the applicant, the letter then stated, “Please contact us immediately to schedule an interview if you do have these qualifications.” The CO found that the employer had failed to “intensively” recruit and had not sufficiently established that there were no US applicants who were able, willing, qualified and available to perform the work.

BALCA pointed to case law which held that an employer may lawfully reject an applicant when the resume is silent on whether he or she meets a major requirement such as a college degree. However, when the qualification is something a candidate may not indicate explicitly on his or her resume though he or she possesses it, the employer carries the obligation to inquire further whether the applicant meets the requirements.  BALCA found that the employer had rejected these 20 candidates because they did not list a subsidiary requirement on their resumes and the employer had an obligation to inquire further. The employer’s letter to these 20 applications did not fulfill this obligation because it placed the responsibility of following up and requesting an interview on the shoulders of the applicants.  Moreover, BALCA found that the employer failed to inquire whether there were any available training options for these candidates especially for two candidates who the CO identified as already possessing networking experience. BALCA found that the employer’s letters to the candidates were perfunctory and not made in good faith.

This case displays another strong example of how resume review in the PERM process does not resemble resume review in the real world. In the real world, an applicant is expected to demonstrate his or her actual interest in the offered position. In the real world, putting the onus of additional communication on the applicant could very well be a test of the applicant’s dedication and interest. No so under PERM. In the PERM process, the employer has to understand that it must bend over backwards to ensure that it has done everything in its power to fully determine whether an applicant is qualified for the offered position notwithstanding that applicant’s failure to respond to a telephone call (email and then send a certified letter); that applicant’s lack of awareness of who the employer is or of the offered position (the employer must now inform them again!);  or that applicant’s request to be contacted at a later time (the employer must comply!).

6.     Over qualification is never a lawful reason for rejection.  

7.     An applicant may be rejected based on their unwillingness to accept the salary only if the employer can show that the employer offered the position to the applicant at the listed salary and the applicant then refused to accept the position.

BALCA has long held that an employer may not reject a US worker applicant based on a belief that the applicant is over qualified for the position. This is still one rejection reason that almost all employers instinctively want to use. And again, this is where the PERM process breaks away from the real world. It is hard for most employers to comprehend why the DOL would require that they classify as qualified, an applicant who clearly would be taking a “step down” because their qualifications indicate that they are qualified for a higher level position. Employers feel that such applicant use lower level positions as a stepping stone. However, BALCA has always held that such applicants are qualified to perform the core job duties. See Bronx Medical and Dental Clinic, 1990-INA-00479 (Oct, 30, 1992) (en banc) and most recently, Kohn Pedersen Fox Associates PC, 212-PER-02772 (Nov. 25, 2016).

Also in Kohn Pederson Fox Associates, the employer, having advertised listing the offered salary, then rejected applicants who applied for the position requesting a higher salary. While the employer’s reasoning here makes real world sense, BALCA held that an employer may reject a qualified US applicant as unwilling to accept the position at the offered wages only if the position was actually offered to the applicant and the applicant refused to accept the position at the offered wages.  The employer must have documentation of the offer and refusal.

Overall, employers must always bear in mind that the DOL serves to protect the interests of the US worker. Accordingly, while the real world may be a dog eat dog world where one typo can cause an applicant’s resume to quickly hit the trash, in the PERM world, applicants must almost be cuddled. The employer must set aside all normal reasoning; all normal industry expectations; all expectations that a US worker applicant can understand basic things like a requirement for 2-3 years of experience means that 2 years would be acceptable. The employer must consider what is in the best interest of the US worker applicant and ensure that it has sufficiently described the offered position and all its requirements to fully apprise the US worker of all he or she needs to know in order to determine whether to apply for the position. Once that application has been received, the employer is obligated to examine every aspect of that applicant’s qualification; to reach out to that applicant using multiple forms of communication if the most convenient form fails; to verify that the applicant, though lacking in a certain requirement cannot be trained within a reasonable time; and to remember, above all else, that the employer is never supposed to seek the “best” candidate for the position, but rather, must consider a candidate qualified if he or she even barely meets the stated minimum requirements.

Cora-Ann Pestaina

BALCA Update: Recent Notable Cases

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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.

Cora-Ann Pestaina

BALCA Holds That Failure To Disclose A ‘Wage Adjustment’ Is Not A Valid Denial Ground

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Recently, in the representative case, Matter of Cognizant Technology Solutions US Corp, 2013-PER-01488 (BALCA, September 29, 2016), the Board of Alien Labor Certifications Appeals (BALCA) reversed 382 PERM denials finding, most significantly, that the employer’s failure to apprise US workers of its wage adjustment – a variable amount of money to be paid to the employee depending on where they’re geographically based – was not a valid ground for denial.

In the representative case, the employer, in response to an audit notification, submitted a copy of an offer letter that was sent to a U.S. applicant. This offer letter stated a base salary of $117,707.20 and also described a “Cost of Labor Adjustment” or “COLA” as follows:

As eligible, you may be paid a geographically based Cost of Labor Adjustment (COLA) of $250.00 per pay period for Washington, D.C., which is an annualized amount of $6,000. Your COLA on the 15th and last day of each month in accordance with the Company’s current payroll policies and practices, along with your regular base salary. [sic] If your work location changes, then there will be an adjustment to COLA effective the first day of work in your new work location. COLA is subject to regular review and may be increased or decreased, or replaced by another compensation component upon certain promotions.

The Certifying Officer (CO) found that the employer’s Notice of Filing (NOF), which advised of a long and short term travel requirement, failed to also appropriately apprise US workers of the actual terms and conditions of employment. The CO found that the NOF violated 20 CFR §656.17(f)(3) which states that advertisements must “provide a description of the vacancy specific enough to apprise the U.S. worker of the job opportunity for which certification is sought” and 656.10(d)(4) which requires that the NOF “contain the information required for advertisements by §656.17(f).” The CO also found that the job order, Sunday newspaper advertisements, local newspaper advertisement, job search website advertisement and private employment firm advertisement failed to apprise US workers of the COLA and therefore did not appropriately apprise them of the job opportunity in violation of 656.17(f)(3). The CO, in denying the application, held that US workers were not properly notified that they would be appropriately compensated based on the specific geographic area of assignment, which could have impacted whether or not they were willing to apply for the job opportunity.

In its Request for Reconsideration/Request for Review, the employer argued that COLA was a “per diem benefit payment” which did not need to be disclosed based on BALCA’s previous decision in Matter of Emma Willard School, 2010-PER-01101 (BALCA, September 28, 2011). In Emma Willard, BALCA held that there is no obligation for an employer to list every item or condition of employment in its advertisements and listing none does not create an automatic assumption that no employment benefits exist. I previously blogged about this decision here. The employer argued that COLA is a not a guaranteed benefit and can be increased, decreased or replaced by other compensation at any time and to insist that such a benefit be disclosed would be similar to insisting that the employer also disclose benefits such as parking and gym memberships, which the regulations do not require.

BALCA found that the CO correctly classified COLA as a wage adjustment because it is a set amount “per pay period”, even if the exact amount may change, and is paid on the 15th and last day of each month along with the base salary. BALCA further found that this is different from a per diem benefit, which refers to something paid on a daily basis (citing Mirriam-Webster’s definition of “per diem” as “by the day”) or to reimbursements for travel receipts or meals (pointing to the U.S. General Services Administrations’ definition of “per diem” as an allowance for lodging…meals and incidental expenses). BALCA cited the case of Crowley v. U.S., 57 Fed. Cl. 376, 381 (2003) where the court cited a 1990 Conference Report discussing the Federal Law Enforcement Pay Reform Act which stated that a locality adjustment was considered part of base pay. BALCA therefore held that, based on the federal government’s characterization of a locality benefit as part of base pay, COLA must also be considered part of base pay. Since COLA is a wage and not a benefit, BALCA held that the holding in Emma Willard did not apply.

If COLA is a wage adjustment then isn’t the employer required to list it in all its advertisements and on the NOF? BALCA held that since there is no requirement that an employer list a wage in its newspaper advertisements, the employer’s failure to do so is not a violation of the regulations. Also, citing its decision in Symantec Corporation, 2011-PER-01856 (Jul. 30, 2014) which I previously discussed here, BALCA held that the job order and additional recruitment steps could not held deficient pursuant to 656.17(f)(3) because 656.17(f) applies only to newspaper advertisements. If the advertisements were not deficient, then 656.24(b)(2) is not a valid ground for denial because the employer did properly recruit for the position.

But BALCA has left a pretty bloody trail when it comes to lack of disclosures in the NOF. In Matter of KFI, Inc. 2009-PER-00288 (Aug. 25, 2009) BALCA affirmed a PERM denial based on the employer’s failure to list the CO’s address on NOF in violation of 656.10(d)(3)(iii). In Servion Global Solutions, Inc., 009-PER-00282 (Jun. 23, 2009) BALCA held that failure to state the rate of pay constituted grounds for denial. In Matter of Innopath Software, 2009-PER-00153 (Sept. 2, 2009), BALCA held that the absence of the employer name on the NOF, although it was posted in a conspicuous location at the place of employment, was not harmless error. In Matter of G.O.T. Supply, Inc., 2012-PER-00429 (Oct. 6, 2015) BALCA affirmed the CO’s denial where the company president’s name but not employer’s name was listed on the NOF. BALCA said persons providing information to the CO need the employer name as it appears on Form 9089. The NOF is required to contain certain information as specified in 20 CFR § 656.10(d) which provides that the NOF “must state the rate of pay (which must equal or exceed the prevailing wage entered by the SWA on the prevailing wage request form).” Failure to list the rate of pay wage in the NOF usually constitutes grounds for denial of certification. But this time, the deficiencies of the PERM process and the Form 9089 could not be overcome.

Despite its conclusion that the regulations could reasonably be interpreted to require an employer to state a wage adjustment on a NOF, BALCA declined to affirm the denial because the Employment and Training Administration (ETA) has issued no guidance whatsoever alerting employers that this type of wage adjustment needs to be specifically disclosed in the advertising and on the ETA Form 9089. BALCA also noted that there is “neither an instruction nor a current mechanism by which an employer may enter this information on the Form 9089 and cited Federal Insurance Co., 2008-PER-00037 (Feb. 20, 2009) in which case the fact that certain mandatory language pertaining to an alternative requirement under Matter of Francis Kellogg, 1994-INA-465 (Feb. 2, 1998) (en banc), did not appear on the ETA Form 9089 was not fatal as there is no space on the form for such language. Because employers have not been provided with notice of its regulatory interpretation concerning the requirement that COLAs be disclosed and a mechanism by which to disclose COLAs, BALCA could not find the NOF defective.

As an aside, it is also interesting to note that the foreign national resided in Florida rather than in Washington, DC, but BALCA did not attach any significance to this fact. It still raises a question about the importance of differentiating between a future job opportunity in a labor certification and a foreign national’s current employment. It was not clear in the representative case whether Washington DC, which was the subject of the COLA, would be the future position. The PERM labor certification was presumably filed using the employer’s headquarters, and indicated that it would involve working at “unanticipated client locations throughout the US.” If the current position provides a COLA, but the future position that is the subject of the labor certification does not, then the fact that the employer submitted a job offer letter with respect to the current position should not undermine the outcome of the labor certification. In responding to an audit notification, employers must clearly specify whether a job offer letter sent to a US worker applicant is applicable to the future PERM position or to the current position in order to attempt to stave off a similar denial.

Also quite interesting is BALCA’s insertion of a footnote acknowledging that the employer, in its prevailing wage request, negatively answered the question about whether the position will be performed at multiple worksites but then indicated on the Form 9089 that work would also be performed at “unanticipated client locations throughout the US.” BALCA acknowledged that the prevailing wage issued by the National Prevailing Wage Center may have been affected had the employer disclosed the roving nature of the position. BALCA provided no explanation as to why this did not constitute grounds for denial. Possibly because the immigration bar continues to beg in vain for clarification on issues related to roving employees.

This decision follows the trend of Infosys Ltd., 2016-PER-00074 (May 12, 2016), also cited in Cognizant, where BALCA held that it was not fundamentally fair to require an employer’s advertisements and Form 9089 to disclose the possibility of relocation in absence of notice or guidance especially since the DOL had previously approved over 500 similar PERM applications by the employer. In Infosys, BALCA recognized that PERM, an attestation-based program places a heavy burden on employers to be careful in preparing their applications but also places a related burden on the CO to ensure that employers are given adequate guidance on what will be demanded of them. These decisions highlight the frustrating deficiencies in the existing PERM regulations and Form 9089. Updates to the PERM program have long been anticipated by both employers and foreign nationals who each expect to benefit from the PERM modernization. DOL officials previously commented that they expect the new regulation to be finalized and implemented before the end of President Obama’s administration in January 2017.

Cora-Ann Pestaina

BALCA Reverses Labor Certification Denials By Upholding Real World Job Advertisements

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Late last year, just in time to ruin the holidays for those affected, the Department of Labor (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 (lulling practitioners into another false sense of security), 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.

To provide some background, an employer has to conduct a good faith recruitment of the labor market in order to obtain labor certification for a foreign national employee. Obtaining labor certification is often the first step when an employer wishes to sponsor a foreign national employee for permanent residence. The PERM regulations do not require the employer to state the offered salary in any of its recruitment. In its list of frequently asked PERM questions (FAQs) on the Office of Foreign Labor Certification’s website, question number 5 under the heading of “Advertisement Content” is asked and answered as follows:

Does the offered wage need to be included in the advertisements?

No, the offered wage does not need to be included in the advertisement, but if a wage rate is included, it can not be lower than the prevailing wage rate.

The Preamble to PERM Regulations, 69 Fed. Reg. at 77347 also discusses the elimination of the requirement that the wage offer must be included in advertisement.

In filing a PERM application, the employer, under 20 C.F.R. §656.10 (c), must certify to the conditions of employment listed on the Application for Permanent Employment Certification (1) “[t]he offered wage equals or exceeds the prevailing wage determined pursuant to §656.40 and §656.41” and (8) ‘[t]he job opportunity has been and is clearly open to any U.S. worker.” And 20 C.F.R. §656.24(b)(2) requires the Certifying Officer (CO) to make a determination as to whether there “is in the United States a worker who is able, willing, qualified and available for and at the place of the job opportunity.” Using these regulations as authority for some of its denials, the DOL, after acknowledging the fact that the employer is not required to list a wage in its advertisements, goes on to state that the employer’s indication of “Competitive,” “Depends on Experience (DOE),” “Negotiable,” “Other,” etc. is in fact an expression of a salary and that any discussion concerning wages must sufficiently inform applicants of the job opportunity outlined in the PERM application. The DOL claims 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. Incredulously, 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 claim that the employers, by listing terms that potentially deterred US workers from applying, did not adequately test the labor market.

Under the PERM regulations at 20 CFR §656.17(e)(1)(i)(A) and §656.17(e)(2)(i), the employer’s job order for both professional and nonprofessional occupations must be placed with the State Workforce Agency (AWA) serving the area of intended employment for a period of 30 days. But one of the problems many employers face is with SWAs that require the employer to list an offered wage and to make a selection from a drop down menu under “Pay Comments” choosing from comments which include “DOE,” “Will Discuss with Applicant,” “Commission Only,” “Not Applicable,” etc. The DOL has been issuing denials in cases where, for example, the employer listed the offered salary as $0 or $1 in an effort to get past this requirement and then indicated “Will Discuss With Applicant” under the pay comments. As ludicrous as it is to suggest that any US worker would be deterred from applying for the offered position simply because the offered wage was listed as $0 – which obviously could never be the actual case – this is exactly what the DOL suggests in its denials.

The American Immigration Lawyers Association (AILA) did raise this issue with the DOL in one of its stakeholders meetings last year informing the DOL that many of its state job order systems, and many job search websites and other recruitment sources require the use of, or they automatically insert, the terms that are now the cause of the new denials. The DOL only agreed to review the issue and may possibly issue an FAQ in the future. But they declined to suspend further denials or reopen past denials.

Many motions to reconsider have been filed and remain pending. The Board of Alien Labor Certification Appeals (BALCA) has just issued a couple of decisions that will hopefully help shed light on how those pending motions should be decided. In Bahwan Cybertek, Inc. 2012-PER-01147 (Feb. 18, 2016) the employer filed a PERM application indicating that the offered wage was $99,500. The PERM was audited. The employer submitted copies of its SWA job order which showed that the employer had listed the minimum pay and the maximum pay as $1 per year. Under “Pay Details” the employer had indicated “Competitive Salary. Will be discussed with the candidate.” The CO denied certification finding that the job order listed a wage rate lower than the prevailing wage in violation of 20 C.F.R. §§656.10(c)(8) and 656.17(f)(7). In a request for reconsideration the employer stated that it normally does not list wages in its recruitment and the PERM rules do not require it but that the Massachusetts SWA’s online job order system asked for minimum and maximum pay for the advertised position and so the employer entered $1 so that the system would accept the posting but added the pay comments as clarification making it clear that the salary was not $1. The CO still found that the statements “competitive salary” and “will be discussed with the candidate” were “not demonstrably specific enough to overcome the potential chilling affect [sic] arising from advertising $1 as an annual salary.” The employer appealed to BALCA.

BALCA simply pointed out that the regulation at 20 C.F.R. § 656.17(f) provides that “[a]dvertisements placed in newspapers of general circulation or in professional journals before filing the Application for Permanent Employment Certification must … [n]ot contain wages or terms and conditions of employment that are less favorable than those offered to the alien” and that, by its own terms, this regulation only applies to advertisements in newspapers or professional journals, and does not regulate the content of SWA job orders.

But with regard to whether or not the job opportunity had been clearly open to any US worker as the employer attested to under 20 C.F.R. §656.10(c)(8), one of the grounds for denial being used in the slew of recent denials discussed above, BALCA confirmed that stating a wage rate below the actual wage offer for the job definitely calls into question whether the job opportunity is indeed open to US workers. However, BALCA found that in the instant case, the employer’s indication of a wage rate of $1 was obviously a placeholder based on a generic data field in the SWA job order and was clearly not intended to reflect the actual wage rate. BALCA found that that “no reasonable job seeker would have been discouraged from applying for the job, especially since it was clarified that the employer is offering a competitive salary and that the salary was subject to discussion.

Similarly, as in the recent denials, where an employer has indicated a salary of $0 and had indicated that the salary will be discussed with the applicant, no reasonable job seeker would have been deterred by that.

In another case, Global TPA LLC, 2012-PER-00847 (Feb. 18, 2016), the offered Project Manager position required 4 years of specific experience which the employer detailed on the ETA Form 9089. Upon audit, the CO discovered that the employer had advertised on a website, as one of the three additional forms of recruitment required for professional positions under 20 C.F.R. § 656.17(e)(1)(ii), indicating that the Project Manager position requires 4-5 years of experience. The CO listed this as one of its three reasons for denial. The employer filed a motion to reconsider but the CO upheld its denial and the case went up to BALCA. BALCA referenced its en banc decision in Symantec Corp., 2011-PER-1856 (July 30, 2014) which I previously discussed here. BALCA pointed out that under Symantec the additional professional recruitment only requires documentation of recruitment for the occupation involved in the application and not recruitment for the particular job opportunity at issue. Therefore, the fact that the employer’s website posting stated 4-5 years of experience as opposed to 4 years of experience as listed on the PERM application did not violate the regulations.  In a footnote, BALCA pointed out that the CO in this case had only cited 20 C.F.R. §656.17(f)(6) as a ground for denial in regard to the discrepancy between the website posting and the ETA Form 9089 in regard to the experience required. BALCA pointed out that its decision is not an opinion on whether the website posting may have been in conflict with 20 C.F.R. §656.10(c)(8) which requires that the employer certify that the job opportunity has been and is clearly open to any U.S. worker.

In any event, even if BALCA declined, in that case, to state that the job opportunity was nevertheless clearly open to US workers, it doesn’t mean that the argument can’t still be made. Under Symantec, the additional forms of recruitment can represent real world alternatives and can advertise for the occupation involved in the application rather than for the job opportunity involved in the application as is required for the newspaper advertisement. Therefore, when it comes to one of these forms of recruitment, an employer’s use of terms like “Competitive,” “Depends on Experience” (DOE), “Negotiable,” “Will Discuss With Applicant,” etc. does not take away from the employer’s advertisement of the occupation and is therefore not in violation of any PERM regulation. BALCA specifically stated in Bahwan Cybertek that no reasonable job seeker would have been discouraged from applying due to the use of such terms. And to state what is probably obvious, someone that would read such terms and be left so confused as to be deterred from applying is quite likely not qualified.

After its slew of denials starting late last year and the stream of motions to reconsider that must have resulted, the DOL’s ultimate stance on this issue remains to be seen. Anecdotal and unscientific evidence seems to indicate that they have stopped or slowed down the issuing of these types of denials.

Nevertheless, going forward, it would be wise to stay away from usage of any of the “problem terms” indicated above to the extent possible.

Cyrus Mehta

A Trap For The Unwary: Equivalent Degrees And Alternate Requirements In Labor Certification Applications

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When a foreign national has a three year degree instead of a four year degree, or has no degree, and is able to establish an equivalent degree through a combination of education and work experience, or only through work experience, it is important that the PERM labor certification application be carefully drafted. While an equivalent degree might pass muster for an H-1B visa, it will not always for a labor certification and the subsequent I-140 immigrant visa petition.

20 CFR §656.17(h) requires that an alternative requirement must be substantially equivalent to the primary requirement of the job opportunity in a labor certification application. If the foreign national does not meet the primary job requirement, and while already employed by the sponsoring employer, only meets the alternative requirement, the labor certification will be denied unless the application states that any suitable combination of education, training or experience is acceptable (emphasis added). 20 CFR §656.17(h)(4)(ii) essentially adopts the holding of BALCA in Francis Kellogg, 1994-INA-00465, although in that case the primary and alternative requirements, namely, experience as a cook or salad maker, were not substantially equivalent, thereby necessitating that the employer accept any suitable combination of education, training or experience. In contrast to Kellogg, 20 CFR §656.17(h) requires consideration of this language even if there is substantial equivalence between the primary and alternative requirement.

Fortunately, if this language does not appear on the form, it is no longer fatal and practitioners can challenge a denial if the sole reason for the denial was the failure to insert this “magic language” on the application. In Federal Insurance Co., 2008-PER-00037 (BALCA Feb. 20, 2009) the fact that the Kellogg language did not appear on the form could not be a ground for denial as there is no space on the ETA-9089 form for such language; and the Kellogg language also does not need to appear in recruitment materials. BALCA in Federal Insurance held that a denial would offend fundamental fairness and due process under HealthAmerica, 2006-PER-0001 (BALCA July 18, 2006). HealthAmerica is a seminal BALCA decision, which rejected the certifying officer’s (CO) denial of the labor certification based on a typographical error recording a Sunday advertisement on the form, although the employer possessed actual tear sheets of the advertisement. BALCA rejected the CO’s position that no new evidence could be submitted as the advertisement tear sheets were part of the PERM compliance recordkeeping requirement and thus was constructively submitted by the employer.

Notwithstanding the fact that the Kellogg magic language is not required, DOL’s rigid insistence that alternate requirements be substantially similar becomes especially problematic when a position requires the minimum of a bachelor’s degree but the foreign national qualifies based on equivalent work experience. It is important to draft PERM labor certification applications being aware of this pitfall, as well as the advertisements, so as to avoid a denial. Globalnet Management, 2009-PER-00110 (BALCA Aug. 6, 2009) is illustrative of this problem. In Globalnet Management,, BALCA held that a bachelor’s degree plus two years of experience was not substantially equivalent to 14 years of experience. BALCA did not accept the argument that the alternative requirement of 14 years of experience comported with the well-established formula to determine equivalency under the H-1B visa, three years of experience is equal to one year of education under 8 CFR §214.2(h)(4)(iii)(D)(5), and held that the primary and alternative requirements were not substantially equivalent. BALCA relied on Field Memorandum No. 48-94 that set forth the years under the Specific Vocational Preparation (SVP) system for different educational attainments. Therefore, the appropriate alternative for a position requiring a B.S. degree plus two years of experience would have been four years of experience rather than 14 years of experience. While BALCA noted that 8 CFR §214.2(h)(4)(iii)(D)(5) may be persuasive in the absence of other guidance, citing Syscorp International, 1989-INA-00212, it nevertheless relied on Field Memo No. 48-94 in affirming the denial of the labor certification.

One reason why practitioners still include an alternative requirement relating to an equivalent degree is to ensure that the requirement is consistent with the H-1B visa petition. It is not unusual to qualify a foreign national for an H-1B visa who may have the equivalent of a three year degree, and then makes up the fourth year through the equivalent of three years of experience. The following language, which previously passed muster would now put into jeopardy ETA-9089 applications that define an equivalent degree, as follows: “Employer will accept a three year bachelor’s degree and three years of experience as being equivalent to one year of college.” Under the reasoning employed in Globalnet, this assumes that the alternative requirement would involve 12 years of SVP lapsed time while a bachelor’s degree would only require two years of SVP lapsed time. The employer faces a Hobson’s choice. If the employer does not include what it means by an equivalent degree on the ETA-9089, the subsequent I-140 petition will fail. If an employer requires a bachelor’s degree, and if the foreign national does not have the equivalent of a four year degree, and the ETA-9089 does not include a definition with respect to what it means by an equivalent degree, USCIS will assume that the employer required a four year degree and the foreign national would not be able to qualify for the position by virtue of not possessing such a degree.

On the other hand, in light of Globalnet it no longer remains viable to insist on consistency between the H-1B and the labor certification. Hence, if the primary requirement is a bachelor’s degree and two years of experience, and the foreign national does not have a degree whatsoever, the substantially equivalent alternative that would be acceptable to DOL would be four years of experience, as opposed to 14 years of experience. There may be some concern that requiring this formula on the labor certification, which may pass muster for DOL, may still be problematic when the alien has filed an I-140 petition and is also extending the H-1B visa using the “3 for 1” equivalency formula to establish the equivalent degree to qualify for the H-1B occupation. There is some anecdotal evidence of the USCIS questioning the extension of the H-1B visa when the I-140 petition involving the same position did not require a degree.  However, if this issue comes up during an H-1B adjudication, it should be argued that the discrepancy lies in the USCIS regulations and USCIS interpretations relating to H-1B and I-140 petitions, not in the beneficiary’s job or the beneficiary’s qualifications. USCIS ought not to deny an H-1B solely because a beneficiary who has been classified for an H-1B visa through an equivalent degree, either based on a combination of education and experience, or purely through a requirement of 12 plus years of experience, is classified on an I-140 under the EB-3 skilled worker preference requiring something less than a bachelor’s degree.

Finding ways to escape the Globalnet trap (and to achieve consistency with the H-1B) have not been successful. In Microsoft Corporation, 2011-PER-02563 (October 16, 2012), the employer indicated in items H.4 through H.7 in the ETA 9089 that its requirements for the position was a Bachelor’s degree or foreign educational equivalent in Comp. Sci., Eng., Math, Physics, Business or related field and six months of experience in the job offered or in a computer-related occupation or student school project experience. The employer indicated in item H.8 that there was an acceptable alternate combination of education and experience, and specified that it would accept 3 years of work experience for every year missing from a four year college degree. The CO denied on grounds that the alternative requirement was not substantially similar to the primary requirement. When the employer appealed to BALCA, one of its arguments was that 20 CFR §656.17(h)(4)(i) did not apply as it was accepting an alternate combination of education and experience in H.8-C, rather than an alternate experience requirement. This argument, unfortunately, was shot down, since the employer created an alternate requirement by indicating in H.10 that it would require three years of work experience for every year of missing college education. The following extract from the BALCA decision in Microsoft Corporation is worth noting:

The Employer completed item H.8 indicating it would accept an alternate combination of education and experience, but that there was no alternate experience requirement. The Employer, however, completed box H.14 indicating that it will accept three years of work experience for every year of missing education from a four year college degree. Although not listed in item H.8C, box H.14 indicates that the position has, in effect, an alternate experience requirement which varies from zero to twelve depending on the level of education attained by the applicant. Therefore, the CO correctly applied § 656.17(h)(4)(i) in determining whether the alternate experience requirement is substantially equivalent to the primary requirement.

The reason why labor certifications of this sort stumble is because there is an alternative requirement, thus triggering 20 CFR §656.17(h)(4)(i). The employer can arguably require the equivalent of a bachelor’s degree as a sole requirement, rather than insist on a bachelor’s degree or the equivalent of such a degree, by checking No to H.6 and Yes to H.10 in ETA 9089, and explaining the equivalency formula in H.14. See Matter of DNP America LLC, 2012-PER-00335 (Oct. 6 2015) (employer properly answered No to H.6 because it did not require experience in the offered position, and was instead requiring experience in a similar position, which it appropriately indicated in H.10).   This strategy too is likely to fail as the DOL may argue that an alternate requirement was created in H.10, as in Microsoft, although BALCA has yet to rule on such a fact pattern where the labor certification expresses one requirement, rather than a primary and alternate requirement.

While achieving consistency between the H-1B and the educational requirements on the ETA 9089 may be impossible based degree equivalencies through work experience, it behooves the employer to at least frame the alternate requirement appropriately as being substantially similar to the primary requirement so as to avoid a denial of the labor certification. For foreign nationals who have no degree and have qualified for their H-1B visa status through 12 years of work experience, including the formulaic “3 for 1” year rule as a way to express the equivalency on the labor certification will most certainly be fatal. Instead, this author has experienced success when the employer required a bachelor’s degree in the specialized field as a primary requirement, and as an alternate, required two years of experience in the specialized field in lieu of a bachelor’s degree. This is consistent with DOL’s interpretation under Kellogg and 20 CFR §656.17(h)(4)(i) that the primary requirement of a bachelor’s degree (requiring 2 years of SVP time) is substantially equivalent to  the alternate requirement (which is two years of experience). If the position requires two years of experience in addition to a bachelor’s degree, then the alternate requirement could be 4 years of experience in lieu of a bachelor’s degree.  Similarly, when a foreign national has a three year degree, the best practice is to require either a 3 or 4 year bachelor’s degree plus the relevant experience.

Navigating immigration law is already challenging, and it becomes increasingly more so when one is dealing with the DOL and the USCIS, who are committed to different standards relating to equivalency. What is worse is that the goal posts are constantly moved, and what may have been acceptable previously is unbeknownst to anyone suddenly not. Until both the agencies settle their differences, or legislation forces them to do so, the immigration practitioner will need to be constantly threading the needle when representing foreign clients with equivalent degrees in order to avoid a labor certification denial and successfully obtain permanent residency.

[This is a shorter version of a forthcoming article in ILW’s PERM Book III (High Tech/IT Edition, Ed. Joel Stewart). The blog is for informational purposes only and should not be viewed as a substitute for legal advice]

Cora-Ann Pestaina

What One Hand Giveth the Other Taketh Away: Are We Truly Welcoming Foreign Entrepreneurs to America?

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“Our nation has always attracted individuals with great drive and entrepreneurial spirit. As the world’s greatest economy and a global leader in innovation, the United States must continue to welcome and retain the next generation of foreign entrepreneurs who will start new businesses and create new jobs here in America.”

The above is an extract from the USCIS’ Entrepreneur Pathways Portal which provides guidance on how entrepreneurs can obtain nonimmigrant visa status through a startup entity. The United States Citizenship and Immigration Services (USCIS) launched its Entrepreneurs in Residence initiative in 2012 and later the portal. Prior to that, in an August 2, 2011 press release, the Department of Homeland Security (DHS) stated that “The United States must continue to attract the best and brightest from around the world to invest their talents, skills, and ideas to grow our economy and create American jobs.” Through the Entrepreneurs in Residence program, USCIS officers are supposed to be trained to recognize the unique nature of a startup and to understand that a nonimmigrant petition based on a startup will not present the characteristics typical of a petition filed through a more established business entity. Startups often lack a formal office space; they may operate in stealth mode in an effort to hide information from competitors; and the foreign national seeking nonimmigrant status in the US often has a majority interest in the startup. Unfortunately, too often a benefit conferred on one hand is taken away by the other hand. USCIS has created these seemingly great avenues for entrepreneurs but other USCIS initiatives and other agencies such as the Department of Labor (DOL) make it harder for those same entrepreneurs to continue to obtain benefits.

One example is the DHS’ proposed rule, “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students,” which was published in the Federal Register on October 19, 2015 for comment. In sum, the rule proposes to amend the F-1 student visa regulations regarding optional practical training (OPT) for certain students with degrees in science, technology, engineering, or mathematics (STEM) from U.S. institutions of higher education. Under the current rule, students can receive up to 12 months of OPT upon graduation. In 2008, the DHS published regulations authorizing an additional 17-months extension of the OPT period for foreign students who graduated in STEM fields. The new rule proposes to allow F-1 STEM students who have elected to pursue 12 months of OPT to extend the OPT period by 24 months. This new 24-month extension would effectively replace the 17-month STEM OPT extension currently available to these students. This is indeed a positive development, and it encourages talented foreign students to remain in the United States and contribute to the US economy.

A STEM graduate may also utilize the OPT period to work for their own startup. But one aspect of the proposed rule might mean that this STEM graduate may not be able to obtain the 24-month extension to continue working for the startup. One of the things that will be required under the proposed rule is the implementation of formal mentoring and training plans by employers for the STEM OPT employee. The employer must also implement a process for evaluating the OPT employee. The STEM OPT extension could be difficult to establish for the OPT employee who is the majority shareholder in their startup. It appears that here the government will want to see proof of the typical employer-employee relationship which totally goes against everything it tries to do through the USCIS Entrepreneurs Pathway portal and erodes the whole idea of the startup.

Even if the foreign national were to obtain nonimmigrant visa status, that status is temporary. If the foreign national is desirous of obtaining lawful permanent residence in the US through their own company, there s/he may face another roadblock.

Recently, in Step By Step Day Care LLC, 2012-PER-00737 (Sept. 25, 2015), the Board of Alien Labor Certification Appeals (BALCA) affirmed the denial of a PERM labor certification finding that the offered position was not open to U.S. workers because the beneficiary was in a position to control or influence hiring decisions regarding the job. The employer filed a PERM labor certification for the position of “Daycare Center Director” indicating on the application form that the company is a closely-held corporation in which the foreign national has an ownership interest.  The DOL issued an audit request for documentation that included information on the business structure; a statement describing any familial relationships between parties with ownership interests in the company and the foreign national; the name of the employee with the primary responsibility for interviewing and hiring applicants; and the names of the employer’s officials who have control or influence over hiring decisions involving the job opportunity listed on the PERM application. The employer’s audit response showed that the foreign national beneficiary of the PERM application and her husband each held 50% ownership of the company, and they were here on E-2 visas. (The E-2 visa is one such visa that is encouraged for startups in the Entrepreneurs Pathway Portal). The foreign national was the Director and her husband was the Operations Manager. The recruitment was conducted by the company’s Assistant Director.

The Certifying Officer (CO) denied the application on the grounds that the employer had not overcome the presumption that exists that a job opportunity is not bona fide when the employer is a closely-held company where the beneficiary has an ownership interest or a familial relationship with the stockholders, officers, incorporators, or partners, and is one of a small number of employees. The CO took issue with the fact that the hiring official, the Assistant Director, was a subordinate of the beneficiary and is not the usual official having authority over hiring decisions.

In its motion for reconsideration, the employer explained that while the beneficiary and her husband typically made the hiring decisions in consultation with the Assistant Director, the hiring process was modified in for purposes under the labor certification recruitment because the beneficiary was also the co-owner. The employer held that neither the beneficiary nor her husband were involved in recruitment. The employer argued that the beneficiary and her husband each held E-2 investor visas as a result of purchasing the company and therefore the beneficiary’s stay in the US was not dependent on her position as Director and provided documentation to show that the position was a requirement for daycare businesses under Florida law and did not exist for the benefit of the foreign national beneficiary. The CO nevertheless upheld the denial.

As background, mere existence of a family relationship, or the fact that the beneficiary is the owner of the sponsoring entity, should not lead to a conclusion that a job opportunity was not bona fide.  When determining whether a bona fide job opportunity exists, the CO must consider the totality of the circumstances, considering, among other factors, whether the alien:

  1. Is in the position to control or influence hiring decisions regarding the job for which labor certification is sought;
  2. Is related to the corporate directors, officers, or employees;
  3. Was an incorporator or founder of the company;
  4. Has an ownership interest in the company;
  5. Is involved in the management of the company;
  6. Is on the board of directors;
  7. Is one of a small number of employees;
  8. Has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application; and
  9. Is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operation without the alien.

Good Deal, Inc., 2009-PER-00309 (Mar. 3, 2010) (citing Modular Container Systems, Inc., 1989-INA-228, (July 16, 1991) (en banc).  The Board should also consider the Employer’s compliance and good faith in the application process. Id.  No single factor, such as a familial relationship between the alien and the employer or the size of the employer, shall be controlling. See Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System, 69 Fed. Reg. 77326, 77356 (Dec. 27, 2004).

Upon review, BALCA held that having recruitment conducted by a subordinate of the foreign national beneficiary is not in the best interests of U.S. worker applicants. BALCA found it difficult to believe that the beneficiary exercised no influence on the hiring process. BALCA cited 20 CFR 656.10(b)(ii) which states:

The employer’s representative who interviews or considers U.S. workers for the job offered to the alien must be the person who normally interviews or considers, on behalf of the employer, applicants for job opportunities such as that offered the alien, but which do not involve labor certifications.

BALCA held that since the Assistant Director did not normally conduct interviews or consider applications, this regulation was not met. With regard to the employer’s statement that the beneficiary did not need the position since she held E-2 status, BALCA held that the filing of the labor certification indicated the beneficiary’s preference to remain in the position.

The foreign national entrepreneur who successfully obtains nonimmigrant visa status to run a business in the US could later be kicked out when that temporary nonimmigrant visa status expires. In the above discussed BALCA case, the beneficiary held E-2 status which could be extended indefinitely. However, a beneficiary with H-1B status would need to leave the US upon reaching the maximum 6-year limit.  While there may be other options for entrepreneurs on a temporary visa to get permanent residency, such as through the national interest waiver or as a person of extraordinary ability, very few can qualify under these pathways. The majority of skilled foreign nationals get sponsored via an employer through the labor certification process, and the odds of winning labor certification substantially lessen when one is the owner or founder of the sponsoring entity. It is not clear how such conflicting policies could work to “[attract] individuals with great drive and entrepreneurial spirit” and “welcome and retain the next generation of foreign entrepreneurs who will start new businesses and create new jobs here in America.” What one hand giveth the other taketh away.