Tag Archive for: PERM

Cyrus Mehta

The Application for  Prevailing Wage Determination and the Application for Permanent Labor Certification – Siblings or Twins?

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By Cyrus D. Mehta and Kaitlyn Box*

The process for an employer to sponsor a noncitizen employee for permanent labor certification is long and complicated. The first step in the process for filing Form ETA 9089, Application for Permanent Labor Certification, also known as PERM, is to file Form  ETA 9141, Request for Prevailing Wage Determination. It takes about 6 months for the National Prevailing Wage Center to issue the prevailing wage determination. It is only after the prevailing wage is determined, and recruitment is conducted, that the employer can file Form 9089, which takes 9 months to a year before a labor certification is issued.

The filing of  Form 9089 sets the priority date, which determines where the noncitizen is in the queue under the Employment-Based Second (EB-2) or Employment-Based Third (EB-3) Preference. The filing of the Form 9089 can also provide the legal basis for filing an H-1B extension beyond the six year limit if it is filed one year before the sixth year under section 106(c) of the American Competitiveness in the 21st Century Act.

As the Form 9141 is imperative in ensuring that the Form 9089 can be filed as soon as possible, the National Prevailing Wage Center has begun to issue Requests for Information (RFI) after the Form 9141 is filed to request a prevailing wage determination, which have the potential to further delay the overall labor certification process.

In the Form 9141, the position and the requirements have to be provided in detail so that the National Prevailing Wage Center (NPWC) can issue an appropriate prevailing wage determination. For instance, if the position requires travel, this too needs to be specified on Form 9141. Since June 1, 2023, Form  9141 links to the new Form 9089, automatically populating certain fields on the PERM application form. Some of the information on Form 9141, such as the description of the offered position and its requirements, remain only on Form 9141.

Practitioners have been receiving a Request for Information (RFI) after filing Form 9141 requesting the employer to answer the travel requirement question with more specificity. This could add further delays to the issuance of a prevailing wage determination, which is taking about six months, which in turn would lead to delays towards filing Form 9089.  Question F.d.3 on Form 9141 asks, “Will travel bs required in order to perform the job duties?” If the response is “Yes” to this question, then the employer is required  under Question F.d.3. to “provide geographic location and frequency of travel”

If the position requires travel, Question F.d.3. should be answered as specifically as possible. If the position requires travel about once a month domestically to meet clients, the employer must specify under F.d.3 that the position requires travel once a month with  the US to meet with clients. If such details are not provided in Form 9141, and instead, the answer is “occasional travel required” then the NPWC will issue an RFI asking for specific details as set forth in the following example we have received on behalf of a client:

Item F.d.3a states, “Frequent travel required. ” Please clarify if the occupation will require any national or international travel, and the frequency of that travel. Your response should also confirm that the NPWC has permission to correct your Form ETA-9141 with the information you provide in your response.

The employer is given the choice to respond directly to the RFI in the FLAG system or via e mail. The employer must respond within 7 days. The employer is also given the choice to withdraw and apply again too.

In the case of “roving employees”, the 1994 Barbara Farmer Memo states that the employer’s main or headquarters (HQ) office should be indicated as the worksite when a job opportunity will require a beneficiary to work in various locations throughout the U.S. that cannot be anticipated.  Even with roving employees, the employer will tend to answer “Yes” to F.d.3, which asks “Will travel be required in order to perform the job duties?” Then, under F.d.3.a. where the employer is asked to “provide [the] geographic location and frequency of travel” the employer tends to answer consistent with the  Barbara Farmer Memo as follows: “Must be willing to relocate and work anywhere in the US.”

Recently, the NPWC has been issuing an RFI on this response too stating:

Item F.d.3 states “Yes”, and Item F.d.3a states the applicant “Must be willing to relocate and work anywhere in the U.S. ”

Please clarify the frequency of that travel.

However, this response does not relate to travel because the frequency of travel is now known. The position, rather than requiring travel, requires the employee to be willing to relocate and work anywhere.

At the AILA 2024 Spring Conference in Washington DC on March 22, 2024, Lindsey Baldwin, Director, National Prevailing Wage Center, clarified that the DOL is more interested in knowing about travel in the Form 9141 than unanticipated job locations under the Barbara Farmer memo. She also said that the information in the Form 9141 does not have to match everything that is in the Form 9089, and suggested that the Form 9141 and Form 9089 may be siblings but they are not twins!

Given that the information in the Form 9141 links to the Form 9089, what if the employer answers “No” to Question F.d.3 regrading travel for a position that only requires the ability to work at unanticipated locations under the Barbara Farmer Memo? How will the ability to work at unanticipated worksites get captured in the Form 9089? Answering “No” may avoid an RFI regarding travel. However, the information in the Form 9089 must also match with the information provided in the advertisements, which requires that the job applicant  be willing to relocate and work anywhere in the US.

One way of ensuring that the need to relocate to unanticipated worksites gets into Form 9089 is to answer “Yes” to  Fb.1. in Form 9089 – Will work be performed in geographic areas other than the one identified in Section F as above? Then answer F.c. – Other Definable Geographic Area(s) – by stating “Various worksites such as the Company Headquarter [insert address] and other unanticipated locations in the US.” This further demonstrates that Form 9141 and Form 9089 are siblings and not twins.

In order to answer the RFI and also answer F.d.3.a on Form 9141 to avoid a future RFI another suggested response from the employer may include answering positively to the travel question after consulting with the employer regarding the anticipated frequency of relocation. One example is as follows:

Must be willing to relocate and work anywhere in the US. Travel in the context of relocation may be required at least once or twice a year based on clients’ needs.

Ms. Baldwin did however emphasize that when responding to the RFI regarding travel, the employer must specify:

  • Whether travel is local or international

  • How frequent is the travel? – once or twice a year or more (do not indicate “occasional travel” as that is subjective)

  • What is the nature of the travel? Is it for meetings or is it for the performance of the duties of the position?

If the employer does not answer the RFI with such specificity, the Form 9141 issuance will get further delayed.

The labor certification process has been both exacting and maddeningly complex. The recent trend of RFIs being issued in the context of travel to determine the prevailing wage have added even more complexity as well as confusion to the process. The authors only provide suggested responses to RFIs and how to complete the travel section in Form 9141 and related sections in Form 9089. They do not provide any assurances that DOL will agree with these suggested responses.

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

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

 

 

 

 

Cyrus Mehta

Changes in Work From Home Policies After Labor Certification Has Been Filed

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Cyrus D Mehta and Jessica Paszko*

As a response to the COVID-19 pandemic, employers implemented telecommuting policies, and work-from-home became the norm for much of the workforce. Three years later, many of those employees are dusting off their lunchboxes and ironing their work suits as their employers call them back to the office. While the turning back of these policies may be met with groans from employees who grew comfortable in their home offices, for foreign nationals in the process of being sponsored for permanent employment, the change could mean something much worse than a mere change of work scenery. For instance, if the employer indicated in its test of the labor market that the position allows telecommuting and then later requires all employees to report to the office, could the labor certification be deemed invalid?

The PERM labor certification process is typically begun by submitting the Department of Labor (DOL) Form ETA 9141, Application for Prevailing Wage Determination (PWD). Some key “Job Offer Information” that ETA 9141 asks for in Section F is the job title (F.a.1), job duties (F.a.2), the minimum degree (F.b.1) and experience requirements (F.b.4), and whether the employer requires any special skills or other requirements (F.b.5). In F.b.5, the employer clearly must list any tools, software, or programs that the employee is required to know for the position, but the employer should also use this field to list other key information about the job, such as that telecommuting is permitted. The ETA 9141 also requires the employer to provide the full address of the place of employment (F.e). Based on the regulations’ definitions of employment and employer, the “place of employment” has been interpreted to mean a physical office or location in the U.S. Specifically, 20 CFR § 656.3 defines employer as a “person, association, firm, or a corporation that currently has a location within the United States to which U.S. workers may be referred for employment and that proposes to employ a full-time employee at a place within the United States . . . . An employer must possess a valid Federal Employment Identification Number (FEIN).”.  In the case of “roving employees”, the 1994 Barbara Farmer Memo states that the employer’s main or headquarters (HQ) office should be indicated as the worksite when a job opportunity will require a beneficiary to work in various locations throughout the U.S. that cannot be anticipated. Note, the information from the ETA 9141 automatically gets included in the ETA 9089, the DOL form used to electronically submit the labor certification, since the revised ETA 9089 took effect on June 1, 2023. Under the old ETA 9089, the employer had to repeat the information from the ETA 9141 in the relevant boxes. Many of the approved labor certifications are under the old ETA 9089.

Once the ETA 9141 is certified by the DOL, employers can move onto the second stage of the PERM process which is to conduct a series of mandatory and optional recruitment steps to confirm that there are not sufficient U.S. workers who are “able, willing, qualified, and available at the time of application for a visa and admission into the United States and at the place where the alien is to perform the work”, i.e., the labor market test. 20 CFR § 656.1(a)(1). The employer’s advertisements must indicate all of the “Job Offer Information” that was listed in the ETA 9141, or in the old form it was the ETA 9089 and box H.14 was answered. The recruitment steps must be conducted in the area of intended employment that was listed in Section F.e. If an employer intends for an employee to work solely at a designated worksite, such as a company office or its HQ, then the ETA 9141 need only list one worksite location and the employer need only conduct recruitment in that area of intended employment. If the employer will permit the employee to perform work remotely from their home, then the ETA 9141 still need only list the employer’s main or HQ office as the worksite, but F.b.5 on the ETA 9141, and in turn each of the ads used in recruitment, should indicate that the employer will permit telecommuting from anywhere in the U.S.

Turning back to the question we posed at the outset – what should happen to a labor certification that indicated “telecommuting permitted” but where the employer later decides that all employees must report to the office five days a week? Arguably, the labor certification should not be deemed invalid in such a scenario because the labor market test was conducted in the area of intended employment, i.e., the company’s main office or HQ, which is where the foreign worker will need to report to. Additionally, by issuing the labor certification, the DOL determined that there are not sufficient U.S. workers who are able, willing, qualified and available at the time of application for a visa and admission into the U.S. and at the place where the alien is to perform the work. Indeed, the employer, by indicating that telecommuting would be allowed, cast a wider net and potentially made the position “available” to more U.S. workers “at the place where the alien is to perform the work” since the U.S. applicant not need be physically present in the employer’s area of intended employment listed in the ETA 9141, Section F.e or in the old ETA 9089. Therefore, the labor certification should not be invalid as the employer properly made the two attestations required by it.

But what if the issue was flipped and now the employer wishes to allow telecommuting even though the ETA 9141 and subsequent recruitment did not indicate that telecommuting would be permissible? Here, the employer’s attestation that there are not sufficient U.S. workers who are able, willing, qualified and available at the time of application for a visa and admission into the U.S. and at the place where the foreign worker is to perform the work may be called into question. By failing to indicate in its ads that workers could telecommute from anywhere in the U.S., the employer arguably made the position more restrictive as qualified U.S. applicants may have not applied to the position due to the location of the employer’s office or HQ, though they would have applied if telecommuting was allowed. Still, we would argue that the employer’s telecommuting change after the labor certification should not invalidate the labor certification. The Barbara Farmer Memo made clear that the employer’s main or HQ office should be indicated as the worksite when a job opportunity will require a beneficiary to work in various locations throughout the U.S. that cannot be anticipated. That HQ worksite in turn determines the course of the labor market test and where it is to be conducted. The labor certification should not be later deemed invalid just because the employer changes its mind as to whether or not telecommuting is allowed as the labor market test is still valid since it was conducted in the area of intended employment.

If the labor certification is approved but the I-140 petition still needs to be filed, it would behoove the employer to provide a justification in the support letter to the I-140 that the labor certification is still valid despite a change in work from home policy. Alternatively, the employer is only obligated to offer the position in accordance with the terms of the labor certification upon the grant of permanent residence. See Matter of Rajah, 25 I&N Dec. 127 (BIA 2009).  Thus, even if the work from home policies have currently changed, but the employer still wishes to offer the job in accordance with the labor certification, then there is no need for any further justification. Assuming that the employer does not intend to offer the position per the labor certification upon the grant of permanent residence, obtaining an I-140 approval after full disclosure has been made would be the ideal situation. If the I-140 petition is already approved, the employer could again go with the assumption that the underlying labor certification is valid despite the change in work from home policy and perhaps explain in the letter in support the I-485 or in the I-485J supplement, whichever is applicable. When there is doubt regarding the validity of the labor certification due to changes in work from home policies, and the I-140 is already approved, the employer can file a new labor certification and upon approval of the labor certification, file an I-140 petition and recapture the earlier priority date under 8 CFR § 204.5(e)(1).

Given the extraordinary time it takes to obtain labor certifications, starting again when there is a change in a work from home policy can be very burdensome especially when the foreign worker is running out of H-1B time. Our blog provides a legal basis for keeping the labor certification in intact when there is a change in work from home policies, and making full disclosure when submitting the subsequent I-140 petition and I-485 application.

(This blog is for informational purposes and should not be relied upon as substitute for legal advice)

*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

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

Dealing With Section H.10-B Labor Certification Denials

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By Cyrus D. Mehta and Kaitlyn Box*

In recent weeks, reports of PERM labor certification denials concerning the manner in which question H.10-B was completed on Form ETA 9089 have abounded from many immigration lawyers and their clients. This question asks employers to “identity the job title of the acceptable alternate occupation” if an alternate exists. The DOL has promulgated little guidance on this question, so immigration lawyers have been accustomed to completed it in a variety of ways. While some employers may prefer to list related job titles in H.10-B, a candidate’s qualifying experience may have been gained in positions with various nondescriptive job titles. Thus, employers may choose to respond by instead describing the experience such as “2 years of experience in engineering management” and then referring to section H.14., which lists the requirements of the offered position, rather than attempting to list specific job titles. The DOL has historically accepted PERM applications that respond to question H.10-B in this way, and this approach is consistent with guidance that it has previously issued by the DOL’s Office of Foreign Labor Certification (OFLC), so the wave of recent denials is puzzling.

The uptick in PERM denials concerning question H.10-B seems to have begun between October and December 2022, when the percentage of PERM applications denied by the DOL nearly doubled when compared to data from the first quarter of FY 2022. The denials seem to focus on the idea that question H.10-B is not properly completed unless specific job titles are listed. Because DOL takes the position that this field in the form was not properly completed if an employer uses alternate language, it asserts that the entire PERM application is rendered incomplete. The DOL cites to 20 CFR § 656.17(a), which states that incomplete applications will be denied, as the authority for the denials.

On November 17, 2022, OFLC communicated the following guidance to the American Immigration Lawyers Association (AILA) in response to reports of numerous denials on this issue: “OFLC understands that there may be a variety of relevant specific job titles in which required experience may be gained. 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. Interestingly, AILA received reports of continued denials on the question H.10-B issue well into March 2023, even when the PERM application contained language similar or identical to that prescribed by OFLC in November 2022. Id.

Historically, BALCA’s decision in Matter of Francis Kellogg, 94-INA-465 (Feb. 2, 1998), has been the prevailing guidance concerning alternative requirements. In Kellogg, BALCA held that employers should indicate that it 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 failure to include the Kellogg language on an ETA 9089 should not be a basis for denial, noting that there is no suitable place on the form to include the language. Nothing in the holdings of Kellogg or its progeny, however, seems to be instructive regarding whether specific job titles must be listed for alternate occupations.

The DOL is aware of inconsistencies in the adjudication of PERM applications, and has communicated to AILA that it will review applications where an employer has filed a Request for Reconsideration (“RFR”) for a denial based on the manner in which question H.10-B was completed. According the AILA, “where the reason for denial is Question H.10-B only, OFLC will pull the case out of the usual order to review and certify the application where appropriate. OFLC has indicated that there are several hundreds of these cases. While OFLC will start reviewing these cases immediately, it may take several weeks to process them all.” See AILA Doc. 22092601. It thus seems that immigration lawyers and their clients who are dealing with an H.10-B denial may be able to get resolution simply by filing an RFR.

The recent denials still pose a number of complications, though. If the PERM was filed in the sixth year in H-1B status, because the DOL is likely to take at least several weeks to process RFRs, some employees may reach the end of their sixth year in H-1B status and be forced to leave the U.S. during this extended waiting period, even if the DOL ultimately certifies the PERM. On the other hand, if the PERM was filed one year or more prior to the end of the sixth year, the PERM that is the subject of an RFR is still considered pending and can provide the basis for a one-year H-1B extension under § 106(a) of the American Competitiveness in the 21st Century Act.   Moreover, immigration lawyers and their clients who process many PERM applications have been left wondering whether other pending PERM applications that use the same language for question H.10-B will be denied. If that is so, then employers should continue to file RFRs each time there is a denial.  If a Prevailing Wage Request or recruitment such as job orders and newspaper ads are already in progress and use general language like “5 years of experience in the biotechnology industry”, it is hoped that DOL will no longer deny such a PERM in light of its announcement that employers may file RFRs. It would be in violation of the Administrative Procedure Act for the DOL to deny pending and future applications without notice and the opportunity to comment on the change.

In general, it is a best practice to ensure that the Prevailing Wage Determination on Form 9141, all recruitment, and the ETA 9089 itself use identical language. While it would easier said than done for the employer to start all over again by requesting a new Prevailing Wage Determination if the language is not consistent with DOL’s latest guidance, obtaining a new 9141 Prevailing Wage Determination could take 12-14 months. If the prevailing wage request is pending and indicates experience rather than titles that have resulted in denials, or if the advertisements are already running with that language, it would be defensible to not change course and list the experience in the same way in H.10-B. Alternatively, the employer may include the “magic” language as suggested by OFLC to AILA in its November 17, 2022 guidance by stating in ETA 9089 H.10-B “any occupation in which the required experience or skills were gained as specified in H.14” . H.14 can list the skills or experience required for the position that was stated in the advertisements or the prevailing wage request. This modification would likely not be inconsistent with the way the job requirements were set forth in the 9141 or the recruitment.

Although it is salutary that the DOL has allowed employers with denied PERMs based on how H10-B was completed to submit RFRs, until this issue is resolved, employers must also find ways to prevent further denials by drafting the language in H.10-B to hew as closely as possible to the DOL guidance provided to AILA while also not veering too far off from the way the requirements have been listed in the prevailing wage determination and ongoing recruitment.

[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

The Tension Between State Wage Transparency Laws and Labor Certification Recruitment

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By Cyrus D. Mehta and Kaitlyn Box*

In the past year, several states and jurisdictions across the U.S. have begun enacting wage transparency laws, and others are poised to go into effect in the new future. Aimed at increasing wage transparency for job seekers, these laws typically require that job postings disclose the salary that the employer plans to offer applicants. Colorado’s law went into effect on January 1, 2021, and requires employers with at least one employee in Colorado to list the applicable hourly wage or salary for the position. New York City’s law went into effect on November 1, 2022, and requires employers with 4 or more employees, at least 1 of which is located in New York City, to disclose wage information in job advertisements. Washington State and California have enacted wage transparency laws effective January 1, 2023, with both applying only to employers with 15 or more employees. Other jurisdictions are considering implementing similar legislation in future. Interestingly, some wage transparency laws could be interpreted to apply even to remote positions that could be performed from one of the impacted jurisdictions, even if the employer does not currently have a presence in that state. Penalties in New York, for example, can require offending employer to “pay monetary damages to affected employees, amend advertisements and postings, create or update policies, conduct training, provide notices of rights to employees or applicants, and engage in other forms of affirmative relief”, although the city will not assess a penalty on first time offenders who correct the violation within 30 days of receiving notice. Civil penalties of $250,000 per violation can be assessed on repeat offenders. Although Colorado indicated that it would not enforce its wage transparency law against PERM recruitment, it has not formalized this guidance in writing, and other jurisdictions have not offered similar assurances

In the permanent labor certification (PERM) context, these laws present a host of new issues for employers to consider. The PERM regulations 20 CFR §656.17 and 20 CFR §656.18 require only the Notice of Filing (NOF) to list the wage or wage range offered for the position, but employers may now find that they are required to disclose a salary range on newspaper and website advertisements that would typically not have included this information. Although Colorado indicated that it would not enforce its wage transparency law against PERM recruitment, other jurisdictions have not offered similar assurances. See AILA Doc. No. 21040231. Interestingly, some jurisdictions’ wage transparency laws may apply to advertisements for remote positions that could be performed from that location, even if the employer otherwise has no presence or current employees in the jurisdiction.

Further complications arise when an employer wishes to list a salary range in its PERM recruitment in order to comply with a state or local wage transparency law, and the lower end of that falls below the prevailing wage determined by the Department of Labor (DOL) or if the wage range in the advertisement materials does not conform with the wage stated in the Notice of Filing. This scenario may be compliant with the relevant wage transparency law, but it could create issues in the PERM context. As yet, the DOL has not issued any guidance on the interaction between wage transparency laws and PERM regulations, and the Board of Alien Labor Certification Appeals (BALCA) has not directly addressed this issue. In the meantime, analyzing how the DOL has viewed wage ranges that partially fell below the prevailing wage can provide helpful guidance.

As mentioned above, the PERM regulations do not require recruitment to list a salary at all, with the exception of the NOF. 20 CFR § 656.10(d)(4) states: “If an application is filed under § 656.17, the notice must contain the information required for advertisements by § 656.17(f), must state the rate of pay (which must equal or exceed the prevailing wage entered by the SWA on the prevailing wage request form), and must contain the information required by paragraph (d)(3) of this section”. Employers who do list a wage or wage range in advertisements in newspapers or professional journals are required to ensure that these advertisements do “[n]ot contain a wage rate lower than the prevailing wage rate” pursuant to 20 CFR § 656.17(f)(5). Furthermore, 20 CFR § 656.17(f)(7) states that that advertisement shall “not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.”

If a wage range is indicated in the advertisements, it is important that the Notice of Filing (NOF) also contains the same wage range. BALCA has held that employers violate 20 CFR § 656.17(f)(7) if the NOF contains a wage lower than the wage offered the foreign worker. In Gallup McKinley County Public Schools, 2016-PER-00646 (BALCA April 16, 2021), the wage range offered to a Middle School Teacher was $50,273 to $57,402. The NOF identified the wage as $52,000 per year. The BALCA upheld the Certifying Officer’s denial since the wage range suggested that the foreign national employee would be paid a wage up to $57,402 and higher than the wage indicated in in the NOF. BALCA reasoned that because the NOF stated a wage lower than the highest wage in the wage range, the “NOF did not disclose that opportunity to the Employer’s other workers or other interested persons who may have viewed the NOF.”

The employer cited a pre-PERM case University of North Carolina, 1990-INA-00422 (June 9, 1992) establishing that 20 CFR § 656.17(f) was satisfied if the wage offered is no less than the wage offered at the time of the foreign worker’s initial hire. In University of North Carolina, the university indicated a salary of $23,100 in all of its advertisements for a research associate position, which exceeded the prevailing wage determination and reflected the noncitizen’s salary at the time. By the time the PERM application itself was filed, though, the noncitizen’s salary had risen to $30,000. BALCA overturned the denial of the PERM application, reasoning that 20 CFR § 656.21(g)(8) requires the employer to advertise a wage that is no less than what the noncitizen was offered at the time of their initial hire, not the offered salary at the time the PERM application is filed. However, in Gallup KcKinley, BALCA held that subsequent panels have rejected the reasoning in University of North Carolina as US workers could potentially pass on the job opportunity because of the difference in the lower wage in the advertisement and the higher wage privately offered to the noncitizen. See, e.g., Sensus Metering Systems, 2010-PER-00849 (July 20, 2011). In Sensus Metering Systems, the employer listed a higher offered wage on the ETA 9089 than the NOF, and the employee had only gained about 7 months of additional experience with the employer since the position was advertised, rather than 3-5 years as in University of North Carolina. BALCA has also upheld denials of PERM applications where the lower end of a wage range as listed in the advertisements fell below the salary offered to the noncitizen on the ETA 9089. See Om Shri Ganesh, LLC, 2016-PER-00024 (July 28, 2016); Red Apple Child Dev. Ctr., 2009-PER-00472 (June 29, 2010); Lakeview Farms, 2011-PER-01679 (Sept. 4, 2014); Charles E. Churchwell, 2012-PER-01662 (Mar. 2, 2016). Sensus Metering Systems and its progeny illustrate the importance of ensuring that a consistent offered wage range is listed across the NOF, advertisements, and the PERM application itself.

In cases where recruitment has inadvertently included a salary range that fell below the prevailing wage, there have been a few decisions where BALCA has been relatively forgiving. In Re IAC Search & Media, Inc., BALCA Case No.: 2011-PER-00845 (May 2, 2012), for example, involved an employer who inadvertently listed a salary lower than the prevailing wage in the ETA Form 9089 and in a website advertisement. BALCA held that employer had actually offered a salary that exceeded the prevailing wage, so the typographical error was not grounds for denial of the PERM. Similarly, in Nancy Adelman, 2011-PER-02464 (BALCA 2011), BALCA overturned a denial of a PERM application on the grounds that the “prevailing wage rate and validity period listed in Section F of the Employer’s ETA Form 9089 did not match the information contained in the PWD submitted by the [e]mployer” as part of an audit response. BALCA held that a labor certification cannot be denied due to a typographical error unless the result is a violation of the PERM regulations, and no violation had occurred here since the offered wage had actually exceeded the prevailing wage. However, in Marcel Cleaners, Inc., 2009-PER-00395 (BALCA February 2010), BALCA affirmed the denial of a labor certification when the job order listed a wage range, the lower end of which was less than the prevailing wage. BALCA reasoned that 20 CFR § 656.17(f)(5) expressly specifies that advertisements placed in newspapers and professional journals must not contain a wage rate lower than the prevailing wage.

Finally, employers must also be careful about State Workforce Agency job orders whose algorithms may require a different formulation of the wage. Thus, a wage range of $0-$70,000 (depending on experience) will not be in compliance with the regulation. This issue also came up in Gallup McKinley County Public Schools, although BALCA focused its denial on the discrepancy between the wage range in the advertisement and in the single wage indicated in the NOF.  Practitioners can take some comfort in  A Cut Above Ceramic Tile, 2010-PER-00224 (Mar. 8, 2012) where BALCA held that based on the history of the PERM regulations and the plain language of 20 C.F.R. §656.17(e)(2)(i), proof of publication of the State Workforce Agency (“SWA”) job order is not required supporting documentation in the event of a DOL audit of the labor certification application.

Wage ranges in labor certification recruitment always add more complexity and risk to an already hyper technical process.   The DOL will likely continue to deny labor certification if there are discrepancies, such as when the salary range falls below the prevailing wage at the lower end (notwithstanding some BALCA decisions going the other way) or if the wage range stated in the advertisements is different from the wage reflected in the NOF. The DOL has said that employers must comply with PERM rules. If employers need to comply with local wage transparency laws it would be prudent for the employer to comply with those laws too during labor certification recruitment but DOL is not concerned about what employers must do under local laws. Employers need to now tread even more carefully when they are compelled to state a wage range under state transparency laws taking into account all the relevant considerations regarding wage ranges established under DOL rules and BALCA decisions.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

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

 

 

Cyrus Mehta

The Facebook Settlement Resolving Claims of Discrimination Against U.S. Workers Only Adds to the Contradictions in the Labor Certification Program

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By Cyrus D. Mehta and Kaitlyn Box*

On October 19, 2021, the U.S. DOJ and DOL announced that they had reached separate settlement agreements with Facebook regarding the company’s purportedly discriminatory PERM labor certification practices. These settlement agreements stem from a December 2020 DOJ complaint, in which the government alleged that Facebook had discriminated against qualified and available U.S. workers by “refus[ing] to recruit, consider, or hire” them for over 2,600 positions, which were tied to labor certifications filed on behalf of foreign national workers. Interestingly, Facebook was not accused of violating DOL rules, which require merely that employers test the labor market and discontinue the labor certification process if a qualified U.S. worker is found, but do not mandate that the company actually hire the U.S. worker or terminate the foreign national who currently holds the position pursuant to H-1B status. Instead, Facebook was charged with discriminatory practices under INA § 274B(a)(1), despite adhering to the DOL’s rules for recruitment.

In particular, the complaint alleged that “in conducting recruitment, employers must also engage in a good faith search that closely resembles the employer’s normal recruiting process”, citing Matter of Am. Specialty Pharmacy, 2016-PER-00016, 2019 WL 2910815 (BALCA 2019). The complaint accused Facebook of designing recruitment practices specifically intended to deter US workers from applying for the relevant positions, a policy which discriminated against U.S. workers in violation of INA § 274B(a)(1)(A). At issue in particular were Facebook’s use of different recruitment methods for PERM labor certifications than those employed for regular positions, such as requiring resumes to be sent by postal mail for advertisements related to labor certifications while accepting resumes by email for other open positions. In a previous blog, we discuss in greater depth the context of the complaint and its contradictions with actual DOL recruitment rules.

Although Facebook will pay a civil penalty of $4.75 million to the United States and up to $9.5 million to workers impacted by its practices, a sum that is likely small change to one of the largest companies in the world, the settlement carries more worrying implications for smaller companies that lack Facebook’s resources. The complaint against Facebook emphasizes that employers must make “good faith” recruitment efforts, but paradoxically implies that it may not be sufficient for companies to follow the DOL regulations, particularly where an employer’s PERM recruitment differs from the way it advertises regular job openings. DOL regulations are largely outdated and require employers to carry out recruitment practices, such as placing print advertisements in two Sunday newspapers, that are out of touch with modern employment practices. In addition to conforming their recruitment practices to the specific and anachronistic methods prescribed by the regulations, the Facebook complaint implies that employers must conduct PERM recruitment that mirrors their regular recruitment, requirements which may be near impossible to reconcile. Among the grievances leveled against Facebook were its failure to hire qualified U.S. workers who applied for PERM-related positions and its rejection of free online advertisements when it had purchased print versions, neither of which are prohibited by the regulations.

Even if an employer mirrors its real world recruitment with its labor certification recruitment,   it will still be vulnerable to a citizenship discrimination claim by the DOJ’s Civil Rights Division’s Immigrant and Employee Rights Section (IER) because labor certification recruitment inherently requires a good faith test of the labor market, and not to hire US workers and replace the foreign national worker,  before the labor certification can be filed and certified by the DOL. If the employer hires the US worker, the labor certification may be denied. Even if the employer hires this minimally qualified US worker, and files the labor certification on behalf of the foreign worker, the employer may be found to be in violation as a result of “diversion.” The Board of Alien Labor Certification Appeals (BALCA) has held that a US applicant cannot be diverted to another position, even a more senior position. See Engineering Technology, Inc.,89-INA-10 (BALCA 1990), Sam’s Exxon, 91-INA-362 (BALCA 1992). BALCA has found “diversion” even when the U.S. worker was hired for the same position as the foreign national worker where the employer was unable to establish multiple openings. Aloha Airlines, 91-INA-181 (BALCA 1992).

As part of the settlement,  Facebook is required to consider applicants who apply for PERM positions on Facebook’s Career website. Furthermore, the settlement requires the entry into “Facebook’s recruiting system (“FBR”) all applicants to all PERM related positions who apply via Facebook’s Careers website, enabling such applicants to be searchable and remain searchable in the same manner as applicants to non-PERM related positions at Facebook, and allowing Facebook’s recruiting team to identify, consider, and/or hire such applicants for Facebook job opportunities, including but not limited to ones in the same job profile group as the PERM-related position to which they previously applied. “It is hoped that if applicants for PERM positions are hired for other positions, the DOL does not deny the labor certification under its antiquated “diversion” doctrine.

These conflicting requirements may well prompt some employers to stop sponsoring foreign national workers for permanent residence. The penalty paid by Facebook would be ruinous to smaller employers and may deter them from even wading into the PERM domain. Further adding to the deterrent effect, Facebook faced not only a monetary penalty, but will also be forced to conduct supervised recruitment in future and will be subject to increased scrutiny even of its H-1B program. The latter penalty may be particularly off putting to companies who employ a large H-1B workforce.

Skilled foreign national workers already face several limitations in the US immigration system. There is a paucity of H-1B visas every year. The annual cap is set at a paltry 65,000 plus an additional 20,000 for those who have graduated with advanced degrees from US institutions of higher education. Skilled foreign national workers born in countries such as India and China also face disproportionate backlogs when they are sponsored for permanent residence due to the per country limits. The latest action against Facebook would now provide a disincentive for employers to file labor certifications. This would impact those caught in the backlogs who wish to change employers and obtain new labor certifications but retain their place in the queue by capturing the original priority date

The safest course for employers to pursue in light of the Facebook settlement may be to hew as closely as possible to their non-PERM recruitment practices when conducting PERM recruitment, within the dictates of the DOL regulations. If the employer normally accepts resumes by email, they should not require that applicants for PERM related positions send their resumes only by postal mail. When regular positions are advertised online, it may be prudent for the employer to do the same for PERM positions, rather than advertising only in print newspapers. At the same time, the employer must comply with the DOL regulation of advertising in two Sunday print newspapers even though they do not normally advertise in print for their normal recruitment.

Although the labor certification process requires an employer to conduct a “good faith” test of the US labor market to determine whether US workers are qualified or available for the position held by the foreign national, the very notion of “good faith” seems oddly out of place when used with reference to a recruitment effort that achieves its desired objective by failing to locate any qualified job applicants. Only in the labor certification world do you win by losing.  The real solution, though, would be for Congress or the Biden administration to amend the regulations to comport with real, modern recruitment practices, ensuring that employers will not be tripped up by the contradiction between the “good faith” recruitment suggested by the Facebook complaint and the antiquated practices laid out in the DOL rules.

(This blog is for informational purposes, and should not be relied as a substitute for legal advice).

* Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as an Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

No Longer in Use: How Changes in SOC Systems Affect Employment-based Immigration

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Cyrus D. Mehta and Isabel Rajabzadeh*

The Standard Occupation Classification (SOC) is a federal statistical standard used by federal agencies to classify workers into occupational categories. The Office of Management and Budget (OMB) coordinates the Federal statistical system, including the SOC. The SOC Policy Committee assists the OMB in the SOC revision process, and is comprised of Federal agencies including the Bureau of Labor Statistics, Department of Labor. Most notably, SOC codes are used to categorize nonimmigrant and immigrant workers on the Permanent Employment Certification (“PERM” or Form ETA 9089, used to file most I-140s),  the Labor Condition Application (“LCA”, necessary to file H-1Bs and other visas) and the ETA 9142B for H-2B workers. The SOC system was created in order to facilitate job classification. It therefore collects occupational data and enables comparison of occupations across data sets.

In assigning the correct SOC code for employment-based petitions, one must compare the proffered position’s job duties and its requirements against the system. In addition, the requirement to pay prevailing wages as a minimum salary is mandatory for some employment-based visas. In order to determine the prevailing wage of a geographic area, one must look up the SOC code in the Foreign Labor Certification Data Center Online Wage Library (“OWL”) which is run by the U.S. Department of Labor.

According to the Department of Labor, the SOC serves as the framework for information being gathered through the Department of Labor’s Occupational Information Network (O*NET). The O*NET database includes detailed information on tasks, skills, tools used, credentials, and other information associated with the occupations. Much like the OWL, the information found on O*NET is listed by the occupation’s SOC codes.

Many may not realize the SOC codes exist, however, its use is integral to some employment-based visas and therefore, can result in a denial if not used properly. These codes are based on statistics, however, what happens when the system is updated? The SOC has been revised four times: 1980, 2000, and then again ten years later in 2010. The most recent update is the 2018 SOC system, which was deemed to be a “multi-year process” by the U.S. Bureau of Labor Statistics. In November 2020, the O*NET 25.1 Database incorporated the O*NET-SOC 2019 Taxonomy, which aligned with the 2018 SOC system. It stated, “updates and added new and emerging occupations ensure that the O*NET-SOC taxonomy not only represents the SOC structure, but reflects changes occurring in the world of work due to advancing technologies, innovative business practices, and the new organization of work.” However, the OWL still has not caught up with all of the SOC codes listed in the 2018 SOC system. Although the OWL states it integrated O*NET 25.3 on July 1, 2021, (which is later than version 25.1) it still does not reflect all of the changed SOC codes in the 2018 SOC system.

The Problem

In an effort to transition between the different SOC systems and SOC codes, “crosswalks” were developed to portray the changes of that year’s update. The crosswalks show which SOC code was replaced by a different title and/or SOC code number. The crosswalk from the 2000 SOC to the 2010 SOC can be found here. The crosswalk from the 2010 SOC to the 2018 SOC can be found here. As stated above, the OWL fails to keep up with the changes in the SOC codes. This causes huge discrepancies. Although not always detrimental to a case, it may cause unnecessary delays such a Request For Evidence (“RFE”).

For instance, “15-1031, Computer Software Engineers, Applications” is no longer in use and it was replaced by “15-1132 Software Developers, Applications” in the 2010 SOC system. Then, the 2018 SOC system changed the SOC code again to, “15-1252, Software Developers.” But what happens when a PERM was filed in 2011 which used the SOC code based on the 2010 SOC system? Then, 10 years later, the foreign national wants to downgrade their I-140 to take advantage of EB-3 priority dates? Which SOC code should be used on the I-140 form? Use of the 15-1031 SOC code would patch the previously filed PERM, however, it is no longer in use so that may raise flags. Use of the new SOC code may be effective, however, it may trigger a Request for Evidence. Even if there is an RFE, it could be overcome by explaining that 15-1132 (Software Developers, Applications) has replaced 15-1031 (Computer Software Engineers), which in turn has most recently been replaced by 15-1252 (Software Developers).

Not only are immigrant visas affected by this but the H-1B system also relies heavily on SOC codes. What happens when an SOC code like 15-1132 is used on an LCA because the new SOC code 15-1252 is not reflected in the OWL and thus, one cannot reference the most relevant information to determine the position? Although usage of the “older” SOC codes on LCAs seem to be permitted by the USCIS, there is significantly less detailed information on the OWL for each SOC code than O*NET. While the O*NET provides detailed explanations for each SOC code based on the 2018 SOC System, we are left using the 2010 SOC system to determine prevailing wage information. In responding to specialty occupation RFE’s, this system forces individuals to not only argue the specialized nature of the position, but that the O*NET also sees it as a specialty occupation in order to strengthen the argument. In some cases, this requires one to dig into the O*NET archives to find the older 2010 SOCs.

In an occupation like technology it is understandable that SOC codes require changes. However, the impact of these changes on petitions filed by employers for immigrant and nonimmigrant visa classifications are not formally addressed, and therefore, require us to connect the SOC code dots.

Finally, it should be noted that the Office of Foreign Labor Certification Data Center (“OFLC) has delayed the implementation of the 2018 SOCs to July 1, 2022. While O*NET has updated its system to the 2018 SOCs, the 2010 SOCs are archived in O*NET. Stakeholders can only use the 2010 SOCs until July 1, 2022, when the OFLC makes them go live in the Foreign Labor Application Gateway (FLAG), OWL, and in the PERM portal.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

* Isabel Rajabzadeh is an Associate at Cyrus D. Mehta & Partners PLLC and is admitted to practice law in New York.

 

Cyrus Mehta

Justice Department’s Discrimination Complaint Against Facebook Chills Employer’s Ability to Legitimately Sponsor Skilled Foreign National Workers for a Green Card

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The Department of Justice’s complaint claiming that Facebook discriminated against US workers even when it followed DOL regulations for sponsoring foreign national workers is troubling. It renders every employer vulnerable to charges of discrimination each time it files a labor certification on behalf of a foreign national worker.

When an employer wishes to sponsor a foreign national for a green card, it is required to test the domestic labor market for qualified workers before a PERM labor certification is approved. Labor certification is the first step in the employment sponsored green card process.  It is rather odd that when Facebook followed the DOL rules regarding recruitment for a labor certification, another agency of the federal government, the Immigrant and Employee Rights (IER) Section of the Department of Justice (DOJ) accuses it of discriminatory practices under INA 274B(a)(1).  Facebook was not accused of violating the DOL rules. Under the DOL rules, if the employer finds a qualified  US worker after testing the labor market, the employer cannot go ahead with the labor certification and is not required to hire the US worker and terminate the foreign worker who already holds the job often on an H-1B visa.  The IER has accused Facebook of discrimination for not hiring US workers for advertisements that were related to a labor certification filed on behalf of a foreign national worker. The labor certification process requires the employer to test the US labor market with respect to an application filed on behalf of a foreign worker, and contrary to the allegations in the IER complaint, is not set up as a program for recruiting US workers.

The IER complaint says at paragraph 24 that “in conducting recruitment, employers must also engage in a good faith search that closely resembles the employer’s normal recruiting process.”  It cites Matter of Am. Specialty Pharmacy, 2016-PER-00016, 2019 WL 2910815 (BALCA 2019). The IER accuses Facebook of implementing a recruitment process intentionally designed to deter US workers from applying, thus discriminating against US workers because of their citizenship status in violation of INA 274B(a)(1)(A). The complaint states that Facebook uses recruitment methods for PERM labor certifications that were different than those it employs for its regular positions. For example, Facebook requires resumes to be sent by postal mail for advertisements related to labor certifications but for open market positions they will accept resumes by e mail. Facebook also does not post advertisements on their website for labor certification positions but for their other positions they do post on their website.

However, Matter of Am. Specialty Pharmacy, supra, which IER cites in its complaint,  just says that: “We have interpreted this regulation as placing a burden on the Employer to conduct a good faith recruitment effort.”  It cites East Tennessee State University, 2010-PER-00038, slip op. at 11 (Apr. 18, 2011) (en banc), which does go into some more detail, but not in the direction that IER suggests. BALCA stated in East Tennessee State University that “employers seeking permanent labor certification may have to conduct their recruitment in a manner different than they would normally in order to ensure that the position is clearly open to all qualified U.S. workers.” In a 2008 Guidance Memo, the DOL also confirmed that “given that the permanent labor certification program imposes recruitment standards on the employer that may deviate from the employer’s normal standards of evaluation, the Department understands and appreciates the legitimate role attorneys and agents play in the permanent labor certification process.”

DOL also insists on recruitment practices that have no bearing on real world recruitment such as placing print advertisements in two Sunday newspapers even when most employers and job seekers do not rely on the print classified sections any longer. Indeed, most of the advertisements in the classified Sunday edition of the NY Times have the look and feel of labor certification advertisements. Although the IER accuses Facebook of requiring applicants to respond by postal mail rather than online, when its non-labor certification advertisements allow for online responses from applicants, that in itself is not a violation of the DOL rules, and DOL has already conceded that the employer’s labor certification recruitment deviates from normal labor practices. While in hindsight, Facebook should have done more to reconcile its labor certification advertisements with its real world advertisements, the labor certification process requires the employer only to test the labor market and not to use it to hire US workers. The DOL imposes other requirements on an employer during labor certification recruitment, which are unimaginable in real world recruitment. If a US worker applicant does not respond to the employer’s invitation to an interview, the employer must go the extra mile to demonstrate that it did indeed contact the applicant who never showed up by sending up a follow up e mail or letter to the uninterested candidate, and must prove that this candidate actually received the communication!  Even when the US worker applicant was interviewed and rejected, the employer must prove that it actually made contact with the applicant.  Thus, even if an employer mirrors its real world recruitment with its labor certification recruitment,  and even goes beyond, it will still be vulnerable to a citizenship discrimination claim by the IER because labor certification recruitment inherently requires a good faith test of the labor market, and not to hire US workers,  before the labor certification can be filed and certified by the DOL.

Rather than penalize an employer for following the rules set forth in 20 CFR 656, Congress,  the administration, or both, could change the rules governing the labor certification process to make them more rational and comport with real world practices.  In a 2008 article Walking The High Wire Without A Net – The Lawyer’s Role In The Labor Certification Process, Bender’s Immigration Bulletin, February 1, 2009,  Gary Endelman and I noted how far removed the labor certification process truly is from an employer’s real world recruitment practices.  Although the labor certification process requires an employer to conduct a “good faith” test of the US labor market to determine whether US workers are qualified or available for the position held by the foreign national, the very notion of “good faith” seems oddly out of place when used with reference to a recruitment effort that achieves its desired objective by failing to locate any qualified job applicants. Only in the labor certification world do you win by losing. Unable to utilize real world recruitment standards, compelled to base evaluations upon the entirely artificial concept of “minimal qualifications” that does not exist outside the cordon sanitaire of 20 CFR §656, wedded to an inflexible job description that can never change regardless of an employer’s business needs or a worker’s evolving talents, and effectively prohibited from taking into consideration the very subjective character traits whose presence or absence is the most reliable predictor of effective job performance, the labor certification process is fundamentally at odds with the very economic system it allegedly seeks to serve.

It is reiterated that an employer is under no legal obligation to hire a qualified applicant at the end of the process. If the employer finds a U.S. worker who is qualified for the position, the labor certification dies. In other words, the employer cannot file the labor certification on behalf of the foreign national worker.  This makes sense as it would be rather cruel to fire the foreign worker on a temporary work visa like the H-1B, which can extend for many years, and replace them with the US worker.  Even if the employer hires this minimally qualified US worker, and files the labor certification on behalf of the foreign worker, the employer may be found to be in violation as a result of “diversion.” The Board of Alien Labor Certification Appeals (BALCA) has held that a US applicant cannot be diverted to another position, even a more senior position. See Engineering Technology, Inc.,89-INA-10 (BALCA 1990), Sam’s Exxon, 91-INA-362 (BALCA 1992). BALCA has found “diversion” even when the U.S. worker was hired for the same position as the foreign national worker where the employer was unable to establish multiple openings. Aloha Airlines, 91-INA-181 (BALCA 1992).

The statutory basis for labor certifications is provided in §212(a)(5) of the Immigration and Nationality Act (“INA”). Under INA §212(a)(5), an alien is deemed “inadmissible unless the Secretary of Labor” certifies, inter alia, that “there are not sufficient workers who are able, willing, qualified…and available at the time of application” among the U.S. workforce. A plain reading of INA §212(a)(5) does not in any way suggest that an employer must seek to recruit U.S. workers in order for the Secretary of Labor to certify that there are a lack of U.S. workers who are qualified and willing at the time of the application. Interestingly, INA §212(a)(5) is silent about requiring the employer to advertise or to establish that it advertised the position without reference to unduly restrictive requirements. It appears that the Department of Labor has created out of whole cloth the current system it enforces against U.S. employers. Gary Endelman previously wrote for the National Foundation for American Policy: “There was no mention of individualized recruitment in the proposed labor certification regulations on November 19, 1965, or the final version of these same implementing rules that came out on December 3, 1965. There was no sense that employers had to advertise; the availability of U.S. workers, or their nonavailability, was based solely on statistics as embodied in Schedules A and B, respectively.”

In discussing the labor certification requirement in the 1965 Amendments,8 Senator Edward Kennedy (D-MA) stated:

It was not our intention, or that of the AFL-CIO. that all intending immigrants must undergo an employment analysis of great detail that could be time consuming and disruptive to the normal flow of immigration. We know that the Department of Labor maintains statistics on occupations, skills, and labor in short supply in this country. Naturally, then, any applicant for admission who falls within the categories should not have to wait for a detailed study by the Labor Department before his certificate is issued …(W]e would expect the Secretary of Labor to devise workable rules by which he could carry out his responsibilities under the law without unduly interrupting or delaying immigration to this country. The function of the Secretary is to increase the quality of immigration, not to diminish it below levels authorized by the law.

Thus, one of the key drafters of the bill, Senator Kennedy, never mentioned nor contemplated the need for the individualized, wasteful, and unreal recruitment that the DOL has imposed on employers. Indeed, after all this recruitment, the DOL only requires the employer to test the U.S. labor market. In other words, employers must prove a negative, namely, that there are no minimally qualified workers for the position. The employer is not required to hire minimally qualified workers. If the employers find qualified workers, they are precluded from filing the labor certification application on behalf of the foreign national worker. Through this process, the DOL forces employers to make pawns of U.S. worker applicants by advertising the position, having them apply for the position, interviewing them, and in the end, not encouraging their hire even if the employer wants them in addition to the foreign national worker.

And now the complaint against Facebook brought by a sister federal agency further highlights the contradictions in the labor certification program.  The IER complaint is aimed at discouraging employers from sponsoring skilled foreign national workers for permanent residence lest they be accused of  citizenship discrimination after following the labor certification process. Whatever may be the motivation behind this action – and it is not unreasonable to speculate that it may be linked to President Trump’s dislike for Facebook and Twitter – the end result is that skilled foreign national workers deserving of green card sponsorship by a US employer bear the brunt,  and America loses the most if they are forced to leave.

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.

Cyrus Mehta & Sophia Genovese

Labor Certification: Mustn’t the US Job Applicant Be Able to Perform the Job Even If Qualified on Paper?

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PERM labor certification operates outside of the realm of typical real world recruitment efforts. Whereas employers in the real world normally look to hire the most qualified applicant, PERM requires employers to only assess whether a worker is minimally qualified for the position, regardless of whether they’re a good fit for the job. But even if a US worker applicant met the minimum requirements of the position, it is reasonable to expect this individual to perform the duties of the position.  There are certain requirements that are so inherent to the position that it would be redundant to even list them in an advertisement. One example is the ability to speak English or to not be addicted to video games in the workplace so that the employee ceases to be effective. There is an inherent requirement for an applicant to properly perform the job. Can the employer lawfully reject the applicant if she or he cannot perform the job duties after the employer discovers this in an interview even though the inherently obvious requirement was not listed in the advertisement?

As background, under Section 212(a)(5)(A)(i) of the Immigration and Nationality Act (INA), the Department of Labor (DOL) has the authority to determine whether there are insufficient US workers who are “able, willing, qualified, and available” to perform a job that has been offered to a foreign worker, and to ensure that the admission of the foreign worker will not adversely affect the wages and working conditions of those similarly situated. In order to demonstrate to the DOL that there are no “able, willing, qualified, and available” US workers to perform the proffered role, employers must go through the labor certification process, which requires, among other things, a good faith recruitment. 20 CFR § 656.17(e)(1)(i) describes the mandatory recruitment steps for professional occupations that an employer must take ahead of filing the ETA Form 9089, Application for Permanent Employment Certification. These include the posting of a job order with the relevant State Workforce Agency (SWA), two Sunday advertisements, and three additional recruitment steps (such as postings on job search websites, on-campus recruitment, local newspaper ads, etc.). The advertisements must clearly apprise US workers of the offered position and the minimum requirements for the role. Thereafter, the employer must prepare a recruitment report signed by the employer describing the recruitment steps taken, how many applicants applied for the role, and if those applicants were rejected, an explanation of why they did not qualify for the role. Critically, 20 CFR § 656.17(g)(2) states that “a US 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.”

Key to labor certification is the job advertisement. The advertisements must be carefully drafted to ensure that US workers are apprised of the position and also to demonstrate what the minimum qualifications are for the role. Under Board of Alien Labor Certification Appeals (BALCA) decisions, employers may only reject US workers for not possessing the skills as listed on the ETA 9089, or not meeting the reasonable minimum education or experience requirements of the position. However, employers may feel that there are many skills that are so inherent to an employee’s ability to perform the job that would qualify as lawful business reasons for rejection, despite the fact that they are not explicitly listed  on the Form ETA 9089.

In Matter of Transamerica Life Insurance Company, 2015-PER-00274 (Feb. 22, 2017), BALCA upheld the denial of a labor certification where US workers were rejected based on an inability to perform the job duties in Section H.11 on the ETA 9089. BALCA reasoned that because the employer had stated that experience in the job offered was not required in H.6, it was “precluded from imposing specific job duties listed in H.11 as requirements that US applicants had to meet.” This holding has been reaffirmed in a number of BALCA decisions. See, e.g., Matter of Nam Info, Inc., 2017-OER-00058 (holding that although the employer could not reject the applicant based on an inability to perform the job duties in H.11 where no experience in the job is required, they could reject the applicant for failure to meet its education requirements for the position); Matter of IBM Corp., 2015-PER-00483 (Mar. 28, 2018) (holding that an employer may not reject an applicant who does not have experience in the duties listed in H.11 where the employer did not indicate that experience in the job offered was required). However, BALCA also added that denial of the labor certification in Matter of Transamerica was proper because the job duties in H.11 were not normal for the job according to O*Net, and if the employer wanted the workers to be able to perform the job duties in H.11, the skills to perform such should have been listed in H.14. Thus, this leaves open the question of whether one can lawfully reject a US worker for inability to perform the job duties listed in H.11 if those duties are listed as normal on O*Net.

As we’ve previously blogged, in Matter of Los Angeles Unified School District, 2015-PER-03153 (Jan. 23, 2017), BALCA upheld the denial of a labor certification where the employer denied a US worker based on a failure to satisfy an inherent job requirement. The position at issue was for a Special Education Teacher. The job advertisement listed a Bachelor’s degree and teaching credential as the sole requirements for the role. The employer received a resume for a US worker who met these minimum requirements; however, the employer rejected the applicant because she could not “teach special education classes competently” and because the employer had also received a negative reference from the applicant’s previous employer. BALCA held that the employer’s actual minimum requirements needed to be listed on the ETA Form 9089, and since nothing in the employer’s stated requirements indicated that an applicant cannot have a negative performance evaluation, BALCA determined that the rejection was unlawful.

It is rather unreasonable to force employers to list every inherent skill in its PERM advertisements, otherwise employers would spend thousands of dollars on lengthy advertisements, which would still not be able to capture every inherent requirement. Indeed, in several pre-PERM BALCA and Court decisions, it was determined that not all inherent skills need be listed in advertisements. See, e.g., 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 Ashbrook-Simon-Hartley, the Court held that the DOL could not flatly ignore job duties listed by the employer in determining that employer did not have job-related reasons for rejecting a US worker who otherwise satisfied the minimum experience requirements. Here, in its labor certification application, the employer listed the minimum education requirements, training, and experience for the position, which included “two years’ experience in the job offered or four years’ experience as a mechanical design engineer.” The employer received two resumes from individuals who had four years’ experience as mechanical design engineers. The employer rejected the first worker for inability to speak English, where the position required the supervision of other employee which inherently required the ability to speak English, as well as on the grounds that he had no experience in the field of wastewater and sewage treatment. The second worker was similarly rejected for lack of experience in wastewater and sewage treatment. The DOL determined that the rejection of the first applicant who could not speak English was lawful because ability to speak English was inherent to the position. However, the DOL denied the labor certification based on rejection of the second worker because the employer stated that a person with four years of experience as a mechanical design engineer was acceptable for entry into the position.

On appeal, the Fifth Circuit held that the DOL inappropriately ignored other aspects of the labor certification application, and the fact that the employer did include experience in the wastewater treatment industry in its job description. The Court found that the DOL cannot cherry-pick inherent skills, such as the ability to speak English, and flatly ignore others, such as experience in the wastewater industry. BALCA in Matter of Transamerica sought to distinguish Ashbrook-Simon-Hartley in footnote 8, stating that “the requirements which the court found that the CO impermissibly ignored referred to ‘experience in the wastewater treatment industry’ when describing the duties of the job. In this case, the Employer stated that experience in the job offered is not required which precluded it from imposing specific job duties listed in Section H.11 as requirements.” However, this distinction is unconvincing. In Ashbrook-Simon-Hartley, the employer listed experience in the wastewater treatment industry in the job duties section, and listed as its minimum requirements “two years’ experience in the job offered or four years’ experience as a mechanical design engineer.” The applicant had four years of experience as a mechanical design engineer, but no experience in the wastewater treatment industry. The Fifth Circuit found that such inexperience, as required in the job duties, was a lawful reason to reject the worker. In other words, the applicant had the minimum experience of four years as a mechanical design engineer, but did not satisfy the inherent requirement of experience in the wastewater treatment industry.

So what does this mean for employers? It is critical that attorneys ask employers what the actual minimum requirements are for the role. Some employers may feel that certain experience and skills are inherent to the role, and may not feel that it is necessary to list these minimum requirements, as they may take up too much space in the advertisement, costing the employer thousands of dollars. Although this would be rational in an ordinary recruitment context, PERM labor certification is anything but rational or ordinary. Although there are certainly arguments to be made that certain skills are inherent to a position under Ashbrook-Simon-Hartley, such as the ability to speak English or having experience in the relevant context in which the position takes place, one may want to include as many required skills as possible in H.14 and the advertisements to prevent an audit or denial. Thereafter, as we’ve previously suggested, when reviewing resumes, the employer ought to err on the side of caution and interview any applicants who appear to meet the stated minimum requirements, even if not all experience is listed on the resume. Thereafter, the employer can zero in to determine whether the US applicant meets the requirement of the position. In those instances where the US applicant meets all of the requirements of the position, but the employer discovers through a good faith interview that the applicant would not be able to perform the duties of the position, the employer can try to make the case that the US applicant was lawfully rejected. It remains to be seen, however, whether the employer will be successful with such an argument after Transamerica.