Tag Archive for: ETA 9141

Cyrus Mehta

Although Section H.10-B Has Disappeared in the New ETA 9089, Will Its Ghost Continue to Haunt Us?

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By Cyrus D. Mehta and Kaitlyn Box*

The new ETA 9089 form has gone into effect and DOL stopped using the old version of the form on the evening of May 31, 2023. The new form does not have Box H.10-B. In our previous blog, we discussed the rise in PERM labor certification denials related to question H.10-B between October 2022 and March 2023. Does that mean that the problem has gone away? Not entirely, since the new ETA 9089 links to the Form ETA 9141 – the application for a prevailing wage determination – which asks an analogous question to H.10-B regarding the occupation required if employment experience is required. If the employer did not respond appropriately to the analogous question in ETA 9141 that now links to the new ETA 9089, will the DOL still deny labor certification?

This blog is part of a series, see here and here, that  address some of the numerous questions and issues raised by these new forms.

As background, Box H.10-B of the previous version of the ETA 9089 asked employers to “identity the job title of the acceptable alternate occupation” if experience in an alternate occupation is acceptable. The DOL had promulgated little guidance on this question, so immigration lawyers completed this question in a variety of ways, including describing the experience such as “2 years of experience in engineering management emphasizing cloud-based product development” and then referring to section H.14., which lists the requirements of the offered position, rather than attempting to list specific job titles. This is because foreign national workers often had a number of job titles in their prior experience, which may not have reflected the job offered in the labor certification. For instance, with respect to the position of Engineering Manager, the foreign worker may have had similar experience in prior engineering management positions, but may have held titles that had little direct connection to the duties, such as Associate or Specialist. Hence, it was more appropriate to describe the experience gained rather than the titles in the prior positions, as this approach would define the employer’s job requirements with greater clarity.  Historically, the DOL had accepted PERM applications that responded to question H.10-B in this way. Since the spate of denials from October 2022, the Office of Foreign Labor Certification (OFLC) communicated the following guidance to the American Immigration Lawyers Association (AILA) in November 2022 in response denials on this issue:  “Employers may list a specific job title, a number of related job titles, or even language such as ‘any occupation in which the required experience was gained.’ The answer does not have to be an exact job title, but employers still have to answer the question. If employers reference H.14 to answer the question in H.10-B, employers must be sure to answer the H.10-B question. Just providing a list of requirements is not acceptable.” See AILA Doc. 22092601.

The denials concerning question H.10-B centered on the idea that question H.10-B is not properly completed if the employer fails to list specific job titles. The DOL therefore took the position that the entire PERM application is rendered incomplete if this question is not completed properly. The DOL cited to 20 CFR § 656.17(a), which states that incomplete applications will be denied, as the authority for the denials.

The DOL responded to reports of increasing PERM denials concerning question H.10-B, and posted a notice that read as follows as its website on April 14, 2023:

OFLC has stopped issuing denials for this issue for pending applications and will not deny for this reason for any application submitted on or before May 30, 2023, by which point OFLC expects to be accepting the updated version of Form ETA-9089 in the Foreign Labor Application Gateway system. Further, OFLC will overturn denials based solely on this issue. OFLC will identify applications that were denied for this issue and for which reconsideration has not yet been requested; employers whose applications have been denied solely for this reason and have not yet requested consideration are encouraged not to submit a request for reconsideration. Where reconsideration has been requested, OFLC will prioritize processing for any pending reconsideration requests based on denials where this is the only denial issue.

Although this notice has now been removed, it is reproduced as AILA Doc. No. 23041700. In our firm’s experience, PERMs denied solely on a question H.10-B issue were certified rather quickly after a Requestion for Reconsideration (“RFR”) was filed. Interestingly, though, while OFLC acknowledges that it has not adjudicated H.10-B issues in a consistent manner, it states that some of the denials were justified, stating:

…OFLC concluded that some employers have not consistently answered the question accurately by providing acceptable alternate job titles; rather, they include statements such as “see H.14 – Special Skills.” The information provided in H.14 does not identify what alternate occupations are acceptable to meet the experience requirements for the job that is the subject of the PERM application. Instead, the application only lists a series of the special skills requirements and/or other alternative combinations of education and experience that the employer is willing to accept. As a result of employers providing insufficient information in either H.10-B. or H.14, OFLC has recently denied applications for being incomplete.

OFLC evaluated these denials and determined that while they are appropriate, it has not been consistent about when it denies an application for this reason, which could confuse filers.

On April 24, 2023, the Board of Alien Labor Certification Appeals (BALCA) issued an important decision addressing H.10-B denials. In Matter of Charter Communications, Inc., 2020-PER-00171 (Apr. 24, 2023), BALCA held that an employer’s failure to list specific occupation titles in box H.10.B. alone was not sufficient grounds for denial of a PERM application, also noting that the OFLC has dealt with this issue in an inconsistent manner in its adjudication of PERM applications. The employer in this case had inserted the following in box H.10-B: “Please see [Section] H-14.” Id. The employer’s response to section H.14 read as follows: “Bachelor’s degree, or foreign equivalent, in Engineering, Computer Science, or [a] related field. Must have 7 years of experience working with DSG/DAVIC set top boxes; and managing, maintaining, and configuring Linux operating systems. Must have 5 years of experience supporting software applications for back office servers.” Id. The Certifying Officer denied certification, and affirmed its denial after the employer filed a Request for Reconsideration (“RFR”), asserting that section H.10-B requires an occupation or job title. BALCA vacated the denial and remanded the PERM application for certification, reasoning that: “…the Employer persuasively argued why, in this matter, failing to include the job title of an acceptable alternative occupation was immaterial to the CO’s review of the substance of the Form 9089. The Employer precisely detailed the skills needed to satisfy the requirement that “experience in an alternate occupation” was acceptable. […] Section H.10-B conveyed significantly more information than simply listing the job title of an acceptable alternate occupation.” Id.

While box H.10-B has disappeared from the new ETA 9089, box F.b.4.b. of the new 9141 with respect to minimum job requirements still asks employers to “indicate the occupation required” if employment experience is required for the position. See AILA Doc No. 23050101. On the previous version of the ETA 9141, which included the same version of this question as the new 9141, employers often responded  by indicating “see addendum” and listing the full requirements of the position rather than just the occupation, such as “2 years of experience in engineering management emphasizing cloud based product development”, in the addendum. Because the new ETA 9141 will link to the ETA 9089 and certain fields will be populated automatically, uncertainty for practitioners remains, even though box H.10-B itself has disappeared, as the response to box F.b.4.b may not have been in compliance to the recent guidance provided by OFLC with respect to H.10-B. These ETA 9141s were prepared and submitted in 2022, even before the H.10-B denials, and do not contain the preferred language recommended by OFLC in November 2022. They will now link to the new ETA 9089. The employer will not have an opportunity in the new ETA 9089 to include any rehabilitative language as it did in response to H.10-B closely analogous to DOL’s suggested  “any occupation in which the required experience was gained” language.  Will the DOL deny the ETA 9089 because the preferred language was not included in the previously approved ETA 9141?

Although only time will tell whether section H.10-B will haunt us despite its disappearance in the new form, employers who have not listed specific job titles  in box F.b.4.b. of the 9141 should be able to take reassurance from BALCA’s decision in Matter of Charter Communications, which although it pertained to an H.10-B denial, seems to support the more general idea that an employer’s failure to list specific job titles is not sufficient justification for denial of a PERM application.  Employers should also be able to argue that 20 CFR § 656.17(a), the provision used to justify PERM denials based on box H.10-B, pertains only to an  incomplete Form ETA 9089. If the DOL issues a denial based on an incomplete ETA 9141, there should be a strong legal basis to challenge the denial under 20 CFR § 656.17(a) in addition to the reasoning provided in Matter of Charter Communications. Another point in favor of challenging any denial is that the ETA 9141 with respect to alternative job requirements at box F.c.4.a asks for the number of months of alternate experience. It does not ask for the job title in the alternate occupation even if box F.b.4.b asks for the occupation required. It is hoped that DOL will not use the logic from its H.10-B denials to deny ETA 9089s in the new system because the occupation was not mentioned in response to box F.b.4.b. of the 9141. If it does, there will be ample basis to challenge the denial and forever exorcize H.10-B’s ghost.

The DOL sees the new 9089 as the solution to all the ambiguities in the old ETA 9089.  However, we all know that the new ETA 9089 is not the panacea to all the problems in the old form and continues to create additional ambiguities. We will need to remain vigilant and point these issues out as they play out including challenging potential denials to BALCA and even in federal court.

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

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Kellogg Has Reared its Ugly Head in the New Labor Certification Form: How Do We Deal with Alternate Requirements?

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By Cyrus D. Mehta and Kaitlyn Box*

Our most recent blog in this series discusses the new Application for Permanent Employment Certification, Form ETA 9089 (“ETA 9089”) and corresponding Application for Prevailing Wage Determination, Form ETA 9141 (“ETA 9141”) promulgated by the Department of Labor (DOL), and, specifically, how issues concerning dual representation and familial relationships can be dealt with on the new form. In this blog, we discuss how to handle alternate requirements in the new ETA 9089.

The Office of Foreign Labor Certification (OFLC) of the DOL has now delayed the implementation of the new ETA 9089 until June 1, 2023. The new form was originally scheduled to go into effect on May 16, 2023. OFLC will continue accepting the older version of form ETA 9089 until June 1, 2023. Significantly, the new ETA 9141 will link to the new ETA 9089, automatically populating certain fields on the PERM application form. Watermarked versions of both new forms are available on the DOL website. This functionality of the new form has introduced uncertainty for practitioners, who must now ensure that information, specifically that pertaining to alternative requirements, is listed on the ETA 9141 in such a way that it will be correctly incorporated into the ETA 9089 as well.

The new ETA 9089 has undergone formatting changes, as well. The new form appears to change the way employers must list alternative requirements and specifically incorporate the Kellogg “magic language”.  The controlling guidance on alternative requirements comes from the Board of Alien Labor Certification Appeals (BALCA)’s decision in Matter of Francis Kellogg, 94-INA-465 (Feb. 2, 1998). As discussed in a prior blog, Kellogg held that employers should indicate that they will accept “any suitable combination of education, training or experience” if the primary and alternate requirements for the position are not “substantially equivalent”. 20 CFR §656.17(h)(4)(ii) broadened the holding of Kellogg to apply whenever there are alternate requirements, providing as follows:

“If the alien beneficiary already is employed by the employer and the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer’s alternative requirements, certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable.”

However, in Matter of Federal Insurance Co., 2008-PER-00037 (Feb. 20, 2009), BALCA held that there is no appropriate place on the ETA 9089 to include the Kellogg language, so an employer’s failure to do so should not be a basis for denial of the PERM application.

As the holding of Federal Insurance suggests, the old ETA 9089 was not well formatted to incorporate the Kellogg language. Box H.6 of the old ETA 9089 asks “Is experience in the job offered required for the job?”. Box H.10 then asks “Is experience in the alternate occupation acceptable?” If the employer answered both H.6 and H.10, it would likely trigger the requirement to state the Kellogg language.  Many employers chose to avoid stating the Kellogg language on the form by answering “no” to  question H.6. Instead, one could respond “yes” to box H.10., which asked “Is experience in an alternate occupation acceptable?” This approach resulted in the alternate requirement listed in H.10 becoming the primary requirement. Because Box H.6 was answered “no”, there was only one requirement in H.10 rather than a primary and alternate requirement. However, this approach became irrelevant after Federal Insurance was decided on February 20, 2009, although employers still attempted to only have a primary requirement just in case the DOL revived the Kellogg language.

Take the example of  a Systems Engineer with the following job duties and requirements:

Conduct project execution in a global delivery model using various methodologies like Agile to deliver projects in enterprise applications space. Utilize Oracle Peoplesoft HCM, SCM and CRM, SaaS, and cloud based software like Salesforce. Conduct architecture, analysis, design, development, customization, and maintenance of applications using PeopleSoft, Salesforce Cloud, Data analytics tools like Tableau, PL/SQL, SQL, Oracle, HP Quality Centre, Rally, ServiceNow along with testing, application packaging, release co-ordination, security administration and product management from ideation to delivery of the product.

Reqs: Master’s degree (or equiv) in CompApps, CompSci, Engg (Comp/Mech/Electronic), or related field, plus 3 years of experience in position involving similar duties/technical capabilities.

In this case study, the employer instead of requiring 3 years of experience in the exact duties of the position as offered above has asked for “3 years of experience in a position(s) involving similar duties/technical capabilities.”

The employer will address this in H.10 rather than H.6.  in the existing ETA 9089 by answering “no” to H.6 and “yes” to H.10 – Is experience in an alternate occupation acceptable? Then, by indicating the number of months of experience requirement in the alternate occupations in H.10A and  by referring to H.14 in H.10B that the employer will accept “3 years of experience in a position(s) involving similar duties/technical capabilities.”  Even before Federal Insurance,  by checking only H.10 rather than both H.6 and H.10, the employer could avoid the Kellogg language. However, if an employer chose to answer both H.6 and H.10 from February 20, 2009, the Kellogg language would not trigger because of Federal Insurance.

The new Form ETA 9089, however, appears to rectify the problem identified in Federal Insurance by specifically referencing the Kellogg language. This change could create confusion for employers who are not accustomed to including this language in recruitment or the ETA 9089 itself.

Box G.4. of the new ETA 9089 asks “Is the foreign worker currently working for the employer submitting this application?” An employer who answers “yes” to this question must then indicate in Box G.4.a. “whether the foreign worker only qualifies for the job opportunity by virtue of the employer’s alternative requirements identified in Section F of the ETA 9141 identified in Question E.1”. If the answer to this question is “yes” as well, Box G.4.b. asks the employer to “select the applicable statement describing the employer’s willingness to accept any suitable combination of education, experience, or training”, mirroring the Kellogg “magic language”. The two possible responses to this question are “I accept” or “I do not accept”.

Once the Kellogg magic language is included in the ETA 9089, it will be harder for employers to justify the lawful rejection of US workers. In Matter of Goldman Sachs & Co., 2011-PER-01064 (June. 8, 2012), the employer, indicated on the ETA Form 9089 that it would accept for the position of Financial Analyst, “any suitable combination of education, training and experience,” which was the required Kellogg magic language. During supervised recruitment, the employer submitted an expert opinion to the DOL detailing why thirty-five U.S. worker applicants had each been rejected without interview. As examples, BALCA highlighted one applicant who was rejected despite his “substantial academic business credentials” and because he did not possess “narrowly focused” experience necessary for the position and another applicant who the employer described as having “a long and varied career in accounting and financial reporting” but lacking in certain specific experience. The Certifying Officer (CO) denied the labor certification finding that the employer rejected U.S. workers for other than job related reasons. The CO specifically emphasized that the employer had indicated its willingness to accept “any suitable combination of education, training or experience” and had not taken the time to explore and evaluate the suitability of the applicants’ education, training or experience. The DOL cited 20 C.F.R. § 656.24(a)(2)(b) and stated that “where there is a reasonable possibility the applicant may meet the job requirements, it is incumbent on the employer to further investigate the U.S. applicant’s qualifications.” In its request for reconsideration, the employer argued, inter alia, that it has no duty to interview candidates who fail to show on their resumes that they satisfy the major job requirements.

BALCA held that the CO did not question the employer’s business necessity for its job requirements, but instead questioned the fact that the employer rejected without interview applicants who appeared facially qualified for the position and did not address how they were unqualified even possessing a combination of education, training and experience. BALCA upheld the CO’s denial and cited Blessed Sacrament School, 96-INA-52, slip op. at 3 (Oct. 29, 1997) which held that where the 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 he or she meets all the requirements, an employer bears the burden of further investigating the applicant’s credentials. Thus, since the employer was required to evaluate US worker applicants under the Kellogg standard – will accept any suitable combination of education, experience and training – the employer’s rejection of US worker applicants based on only a review of their resumes were not considered to be lawful rejections.

Although the employer has to evaluate candidates who apply for the position under the Kellogg language, this language need not appear in the advertisements as confirmed in the following DOL Round 10 FAQs:

Does the advertisement have to contain the so-called “Kellogg” language where the application requires it to be used on the application?

Where the “Kellogg” language is required by regulation to appear on the application, it is not required to appear in the advertisements used to notify potential applications of the employment opportunity. However, the placement of the language on the application is simply a mechanism to reflect compliance with a substantive, underlying requirement of the program. Therefore, if during an audit or at another point in the review of the application it becomes apparent that one or more U.S. workers with a suitable combination of education, training or experience were rejected, the application will be denied, whether or not the Kellogg language appears in the application.

Still, the fact that the employer has to evaluate resumes in light of any combination of education, training or experience imposed by Kellogg in the new ETA 9089 may make it harder for employers to win labor certifications especially in industries where there have been many layoffs in recent times.

It remains to be seen whether the employer can avoid the Kellogg language like under the old form by making the alternative requirement the primary requirement. Under the revised forms, what is indicated in ETA 9141 will be linked to the ETA 9089. The question is whether under the new system the employer will be able to skip F.c. in ETA 9141, which asks details about the Alternative Job Requirements and instead complete only F.b. in ETA 9141, which asks details about the Minimum Job Requirements but would actually include information about the alternative job requirements.  By skipping F.c. in ETA 9141 (alternative requirements) and completing F.b. (minimum requirements) in ETA 9141, can the employer argue in Appendix C – Supplemental Information that the alternate has become the primary requirement and thus avoid using the Kellogg language?

It is unclear how well the approach of making the alternate requirement the primary will work in light of the “Kellogg language” question on the new ETA 9089. There is a chance that failure to accept the Kellogg question on Box G.4.b. of the new ETA 9089 when alternative sets of qualifications will be accepted, even if F.c. in ETA 9141 was left blank, could result in an audit or denial of the PERM application.

In Agma Systems LLC, 2009-PER-132 (Aug. 6, 2009), BALCA held that an employer was not required to include the Kellogg language where it has two sets of alternative requirements that are substantially equivalent. In Agma, the requirements in question were a Master’s Degree in Computer Science or Engineering and three years of experience in Computer Software Developing and/or Consulting — and a Bachelor’s Degree in Computer Science or Engineering and five years of experience in Computer Software Developing and/or Consulting. Because these two sets of requirements were essentially the same and neither was the “primary”, BALCA reasoned that the Kellogg language need not be invoked because Kellogg expressly recognizes this type of equivalent requirements as acceptable. When requirements are substantially equivalent, BALCA’s holding in Agma lends support for the strategy of making the alternative requirement the primary requirement, thereby obviating the need to use the Kellogg language even in the revised ETA 9089.

The Kellogg language has returned with a vengeance in the new ETA 9089, and it remains to be seen whether employers and their attorneys will be able to avoid it if the alternate requirement can still become the single primary requirement. Employers need to deal with Kellogg with the respect that it deserves in order to avoid a denial.

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

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Answering Tricky Questions on the Revised Labor Certification Form on Dual Representation and Familial Relationships

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By Cyrus D. Mehta

The Department of Labor’s Office of Labor Certification (OFLC) has revised the Application for Permanent Employment Certification, ETA Form 9089, as well as the corresponding Application for Prevailing Wage Determination, Form ETA 9141. OFLC will begin accepting these revised forms on May 16, 2023, and has posted an “unofficial watermarked preview copy” of the form “to allow stakeholders to become familiar with changes to the form.” The link to the form can be found at https://www.dol.gov/agencies/eta/foreign-labor

OFLC will no longer accept any new applications submitted via the legacy PERM Online System after May 15, 2023, at 6:59 pm ET. OFLC also will no longer accept the previous version of Form ETA-9089 after May 15, 2023, either electronically or by mail.

This will be the first in a series of blog discussing selected issues in the new ETA-9089 that are confounding practitioners.

1. How to answer the dual representation question?

 The question below asks whether the employer has contracted with an attorney that also represents the foreign worker covered by the application, as follows:

D.2. Has the employer contracted with an agent or attorney that also represents the foreign worker covered by this application?

Yes

No

It is difficult to understand why the DOL has included this question. Many practitioners take the position that they are representing both the employer and the foreign worker, which is commonly referred to as dual representation. Representing two or more clients is appropriate if the goals of both the clients are aligned. If the practitioner is engaging in dual representation then “Yes” should be checked off rather than “No”. It should not prejudice the case if “Yes” over “No” is checked.

Question D.2 also refers to an agent. It would have been good if the DOL did not include an “agent” as only attorneys admitted to a state bar in the US can engage in the practice of law. Agents should not be encouraged to represent the employer or foreign worker as they will then be involved in the practice of law and are also not bound by the ethical rules that attorneys are subjected to. The ABA Model Rules of Professional Conduct include Rule 1.7 that set forth the parameters under which an attorney can jointly represent more than one client, such as the employer and the employee, and the attorney is precluded from such dual representation if there is an irreconcilable conflict of interest. Non lawyer agents are not subject to any rules of ethical conduct.

This question piqued my interest as I once co authored an article “The Role of the Lawyer in the Labor Certification Process”, a version is available at https://www.ilw.com/articles/2009,0310-endelman.shtm,  which explored dual representation in the labor certification context. There are many decisions of the Board of Alien Labor Certification Appeals discussed in the article that recognize that the lawyer for the employer is also the employer for the foreign worker.

The starting point for this analysis is the DOL rule at 20 CFR 656.10(b), which provides:

(i) It is contrary to the best interests of U.S. workers to have the alien and/or agents or attorneys for either the employer or the alien participate in interviewing or considering U.S. workers for the job offered the alien. As the beneficiary of a labor certification application, the alien can not represent the best interests of U.S. workers in the job opportunity. The alien’s agent and/or attorney can not represent the alien effectively and at the same time truly be seeking U.S. workers for the job opportunity. Therefore, the alien and/or the alien’s agent and/or attorney may not interview or consider U.S. workers for the job offered to the alien, unless the agent and/or attorney is the employer’s representative, as described in paragraph (b)(2)(ii) of this section.

(ii) 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.

 

This rule precludes attorneys from interfering in the recruitment process by interviewing or considering US workers who apply for the job offered to the foreign worker. Only the employer is allowed to interview and consider the resumes of US worker candidates. Even the foreign worker cannot be involved in the recruitment process. Although most of the verbiage in the rule prohibits the attorney of the foreign worker form interfering in the recruitment process, the rule was amended in the fall of 2008 to also include “It is contrary to the best interests of U.S. workers to have the alien and/or agents or attorneys for either the employer or the alien participate in interviewing or considering U.S. workers for the job offered the alien.” (emphasis added). Thus, even the attorney for the employer is prohibited from interfering in the recruitment process since 2008 after the DOL slipped in the phrase “for the employer” in 20 CFR 656.10(b)(i).

Regardless of this amendment to the rule, there are a number of BALCA decisions even before 2008 that have acknowledged dual representation, and thus recognizing that the attorney for the employer is also considered the attorney for the beneficiary. In Sharon Lim Lau, 90-INA-103 (BALCA 1992),  the attorney for the employer sent letters to the only two applicants who responded to the advertisements inviting them to interviews and also presided over the initial interviews to screen the applicants.   The foreign beneficiary, who was the subject of this labor certification application, lived in Taiwan, and the attorney argued that he was the foreign worker’s agent only for purposes of providing a mailing address and to facilitate the foreign worker’s responses to requests by the government for information or documents.  BALCA disagreed by holding that it was common in labor certification cases for the same attorney to be listed as the attorney for both the employer and the foreign worker on the labor certification form.

Contrast Sharon Lim Lau with the earlier BALCA decision in Matter of Marcelino Rojas, 87-INA-685 (BALCA 1988).  In Rojas, the employer contended that his attorney interviewed U.S. applicants because he had difficulty communicating effectively in the English language.  Here too, the certifying officer alleged that 20 CFR §656.20(b)(3)(i) had been violated because the attorney had interviewed a U.S. applicant for the position. BALCA initially noted:

In labor certification cases, the employer’s attorney is almost automatically the  alien’s pro forma attorney.  The employer’s attorney “represents” the alien to the  extent that if the employer succeeds in its application then the alien also succeeds   by receiving labor certification.  It would be the rare exception to find the alien  and the employer represented by different attorneys.

 

But BALCA, in Rojas, held that the attorney represented the employer rather than the foreign worker in the conduct of the interviews.  The employer was present at the location of the interviews to observe the applicants and to decide, after conferring with his attorney, whether to conduct follow-up interviews.  Therefore, the attorney only represented the employer and 20 CFR §656.20(b)(3) was inapplicable to this case.  Rojas, can thus best be described as an exception to the generally accepted rule that the attorney for the employer will also be treated as the attorney for the foreign worker. Of course, Rojas was decided before the amendment to the rule in 2008.

In a later decision, Chicken George, 2003 BALCA LEXIS 72,   the attorney for the employer and the foreign worker was the one who issued letter for the interview to one of the U.S. applicants who applied for the job.  The letter was written on the letterhead of the law firm. Since the employer’s attorney assented that he was the attorney for both the employer and the alien, BALCA held that 20 CFR §656.20(b)(3)(i) and (ii) had been violated.

Finally, in Matter of Scan, 97-INA-247 (BALCA 1998),  the labor certification was denied because it appeared that the applicant was to have been screened by the attorney rather than by the employer.  There, the Certifying Officer concluded:

The initial assessment of the applicant’s qualifications constitutes attorney  involvement and is prohibited by the Regulations.  It is clearly adverse to the  interests of U.S. workers for the alien’s attorney to have any involvement in the  recruitment process.  The rebuttal provides no satisfactory assurance that the  attorney did not initially assess the applicants’ qualifications in this case despite the fact that the employer actually interviewed the workers and made the ‘hiring  decision.’  We cannot say that U.S. workers were not prejudiced by the attorney’s          actions in this case.

 

Although it is unclear from the fact that the attorney claimed to only be the employer’s attorney, BALCA appeared to have broadly held that the attorney violated 20 CFR §656.20(b)(3)(i) because he had engaged in the “filtering process” which is part of the personnel procedures that the employer follows when the employer hires staff personnel.

Thus, under the predecessor provision, 20 CFR §656.20(b)(3),  with the sole exception of Rojas, BALCA has held that an attorney interfering in the recruitment process, either by interviewing or initially screening applicants, violated the regulation.  Of course, the regulation does carve out an exception where if the attorney is the person who normally interviews job applicants outside the labor certification process, this provision will not be implicated.

I have provided this history to demonstrate that the DOL has recognized dual representation in the labor certification process. If the employer is engaging in dual representation, then there will be no downside in answering the question as “Yes” to Question D.2 in the revised ETA 9089.

 

2. How to Answer the Question on Familial Relationships?

The revised ETA 9089 asks the following two questions:

A.16. Is the employer a closely held corporation, partnership, or sole proprietorship in which the foreign worker has an ownership interest?

Yes

No

A.17. Is there a familial relationship between the foreign worker and the owners, stockholders, partners, corporate officers, and/or incorporators?

Yes

No

In the current ETA 9089, Question C.9 asks:

Is the employer a closely held corporation, partnership, or sole proprietorship in which the alien has an ownership interest, or is there a familial relationship between the owners, stockholders, corporate officers, incorporators, or partners, and the alien?

The question needed to be answered “Yes” only if the employer was a closely held corporation, partnership or sole proprietorship and the foreign worker either had an ownership interest or there is a familial relationship between the owners, stockholders, corporate officers, incorporators, or partners, and the foreign worker. The language in C.9 was consistent with the language in 20 CFR 656.17(l), which provides:

If the employer is a closely held corporation or partnership in which the alien has an ownership interest, or if there is a familial relationship between the stockholders, corporate officers, incorporators, or partners, and the alien, or if the alien is one of a small number of employees, the employer in the event of an audit must be able to demonstrate the existence of a bona fide job opportunity, i.e., the job is available to all U.S. workers, and must provide to the Certifying Officer, the following supporting documentation…….

The new ETA 9089 now separates out this question into two questions removing any ambiguity regarding whether the corporation has to be closely held for both parts in the same C9 question of the current form.

Question A.16 asks:

Is the employer a closely held corporation, partnership, or sole proprietorship in which the foreign worker has an ownership interest?

 

Question A.17 asks:

Is there a familial relationship between the foreign worker and the owners, stockholders, corporate officers, incorporators, or partners?

The DOL has taken the position that if the foreign worker either has an ownership interest or there is a close family relationship the recruitment that the employer is required to conduct to test the US labor market will be suspect. If the foreign national has an ownership interest or familial relationship BALCA has set forth a “totality of circumstances” test under Matter of Modular Container, 1989-INA-228 (Jul. 16, 1991) (en banc) to determine whether there is a bona fide job offer to US workers. Modular Container Systems considers whether the foreign national:

a) Is in a position to control or influence hiring decisions regarding the job for which LC is ought;
b) Is related to the corporate directors, officers or employees;
c) Was an incorporator or founder of the company;
d) Has an ownership interest in the company;
e) Is involved in the management of the company;
f) Is on the board of directors;
g) Is one of a small number of employees;
h) Has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application; or
i) 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 without the foreign national.

 

In the current version of the form the question had to only needed to be responded to in the affirmative if the employer is a closely held corporation. The new question A.16 regarding whether the foreign worker has an ownership interest need only be answered “Yes” if the employer is a closely held corporation. This makes sense since even if the foreign worker held shares in a large publicly traded corporation it would be hard to imagine how the recruitment would be tainted.

Question A.17, however, is no longer conditioned by whether there is a closely held corporation, and this is clearly not consistent with 20 CFR 656.17(l). So, let’s say the foreign worker is a second cousin or grandnephew to a corporate officer in Walmart which has over a million employees, the answer now has to be “Yes”. For a publicly traded company, how is one supposed to know whether there is “a familial relationship between the foreign worker and the . . . stockholders”?

In DOL’s FAQ, a  “familial relationship includes any relationship established by blood, marriage, or adoption, even if distant. For example, cousins of all degrees, aunts, uncles, grandparents and grandchildren are included. It also includes relationships established through marriage, such as in-laws and step-families. The term ‘marriage’ will be interpreted to include same-sex marriages that are valid in the jurisdiction where the marriage was celebrated.”

If the employer is not a closely held corporation and there is a familial relationship, one view is to assume that the intention of the DOL was to only expect an answer to the question in the affirmative if the employer is a closely held corporation. On the other hand, if the intention of the DOL was to ask the question without regard to whether the employer is a closely held corporation,  the practitioner must require the foreign worker to ascertain whether  there is any familial relationship foreign worker and the owners, stockholders, corporate officers, incorporators, or partners. This would be the more prudent approach until we get further clarification from the OFLC. The foreign worker can endeavor in good faith to find out whether any relative as defined in the DOL FAQ owns stock in the company that is filing the labor certification. If so, A.17 must be marked as Yes. In the supplemental information, Appendix C, it can be explained that notwithstanding the familial relationship the foreign worker under the totality of circumstances test in Matter of Modular Containers had no influence on the recruitment process especially in the context of a large publicly held corporation.

There will be many instances when the foreign worker may not be able to identify every relative who owns stock in the company that is filing the ETA 9089 on their behalf. Even if the question A.17 is marked as “No” and it later comes to light that the question should have been “Yes” and the DOL denies the application, such a finding can be challenged as BALCA does not take too kindly to the DOL denying applications when the instructions are not clear. For instance, when the employer requires alternative experience and the foreign worker qualifies through that alternative experience, 20 CFR 656.17(h)(4), which adopted the holding in Matter of Kellogg, 1994-INA-465 (Feb. 8, 1998),   provides that certification will be denied unless the application states that “any suitable combination of education, training, or experience is acceptable.” In Federal Ins. Co., 2008-PER-37 (Feb. 20, 2009), BALCA reversed the denial on grounds of fundamental fairness and procedural due process  where this language was not included as the ETA 9089 or its instructions gave no guidance where to put this language.

The new ETA 9089 now specifically instructs applicants about where and how to insert the Kellogg language, and how to respond to the question on the new form will probably be the subject of the next blog in this series.