Tag Archive for: Recruitment

Cyrus Mehta

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

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By Cyrus D. Mehta & Jessica Paszko*

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

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

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

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

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

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

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

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

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

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

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

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

7 Points To Remember Regarding Resume Review In The PERM Process

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cora-Ann Pestaina

BALCA, What Have You Been Up to so Far in 2015?

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I’m sure all PERM practitioners would agree that it’s always good (in fact necessary!) to check in with the Board of Alien Labor Certification Appeals (BALCA). One never knows what issues BALCA will comment on next and as we navigate those often treacherous PERM waters, we need all the help we can get! Here are a couple of recent BALCA tidbits.

BALCA applies Matter of Symantec

In Computer Sciences Corporation, 2012-PER-00642 (Jul 9, 2015) the Certifying Officer (CO) denied the PERM on the grounds that the Employer’s inclusion of the language, “Willingness to travel; may require work from home office” in its recruitment advertisements posted on its website and on a job search website, constituted terms and conditions of employment that exceeded those listed on the ETA Form 9089 in violation of 20 C.F.R. §656.17(f)(6).

As background, employers recruiting under PERM for a professional position must complete the mandatory recruitment steps required by 656.17(e)(1)(i) as well as three additional recruitment steps provided in 656.17(e)(1)(ii).

The Employer’s advertisements posted on its website and on the job search website were in satisfaction of two of the three required additional recruitment steps. In reversing the CO’s decision, BALCA simply cited its en banc decision in Symantec Corp., 2011-PER-1856 (July 30, 2014) which I previously blogged about in greater detail here, and held that 656.17(f) does not apply to additional forms of recruitment. The Employer dodged a bullet here.

BALCA finds that Employer’s letter was within the record and can be considered on appeal

Once a PERM is denied, if the Employer files a motion for reconsideration, under 656.24(g)(2), this motion can only include (i) documentation that the Department actually received from the employer in response to a request from the CO to the employer; or (ii) documentation that the employer did not have an opportunity to present to the CO, but that existed at the time the PERM was filed and was maintained by the employer to support the PERM application in compliance with 656.10(f).

In New York City Department of Education, 2012-PER-02753 (June 19, 2015), the CO first denied the PERM application on the grounds that the Employer failed to provide a recruitment report that accurately accounted for the number of applicants for the job opportunity. The Employer filed a motion for reconsideration arguing that it properly accounted for all applicants. The CO, ignoring this request for reconsideration, issued a second denial letter, finding that the Employer did not provide job-related reasons for its rejection of US workers. Based on the documentation the Employer had submitted with the audit response, it appeared that US workers were rejected because they expressed disinterest in the position but the CO also reviewed the Employer’s interview notes that stated the candidates were available “immediately” or “soon.” The Employer filed a second motion for reconsideration explaining, not only that the CO cannot ignore the first motion and issue a second denial, but, moreover, that it had indeed lawfully rejected the US workers. Along with its motion the Employer provided a letter from its Executive Director explaining the company’s interview process and the fact that the Employer made the determination to reject the applicants after they expressed their disinterest at a second interview.

Since the Employer failed to properly explain its interview process and reasons for rejection in its audit response, BALCA found that the CO was justified in his denial of the case. However, in forwarding the case to BALCA, the CO acknowledged the letter that the Employer submitted along with its second motion explaining its hiring process. The CO did not refuse to accept it on the grounds that it was barred under 20 CFR 656.24(g)(2). Under that regulation, since the Employer’s had previously had a chance to submit this letter with its audit response but did not and since this letter was not documentation that existed at the time the PERM was filed, the CO would have been justified in refusing to accept it. But since the CO did not, the letter became part of the record that BALCA had to consider upon appeal. With the letter fully explaining the Employer’s interview process, BALCA had no choice but to find that the US workers had been lawfully rejected.

The take away from this case is how important it is to fully respond to an audit request. Had the CO rejected the Employer’s letter, the denial would have been upheld.  As BALCA pointed out, the CO’s audit letter very clearly requested a report that lists the date(s) the employer contacted the US worker; the dates the employer interviewed the US worker; the specific reasons the US worker was rejected; and information that documents the employer contacted the applicant(s). In its audit response, the Employer failed to provide this detailed information.

BALCA held that an original signature is not required on the recruitment report but the report must be signed

In another case involving New York City Department of Education, BALCA upheld the denial of three PERMs finding that the typed name of the Executive Deputy Director at the bottom of the recruitment report did not constitute a valid signature. The CO had denied the Employer’s PERM after audit for failure to submit a signed report as required under 656.17(g)(1). The Employer, in its request for reconsideration, explained that it had a physically signed recruitment report in its audit file and this report, due to administrative error, simply was not included in the audit response. The Employer alternatively argued that the regulations do not require a handwritten signature and the typed name of the Employer’s Deputy Executive Director was satisfactory.  The CO transferred the file to BALCA where each of the Employer’s arguments were shut down.

BALCA held that the fact that the Employer had a physically signed copy of the recruitment report speaks to the fact that the typed name on the bottom of the report submitted with the audit response was not intended to be a signature. The Employer argued that “original signatures” are not required. BALCA agreed that 656.17(g)(1) does not require an original signature but again stated that the typed name on the bottom of the report was not intended to be a signature – original or otherwise. The Employer argued that fundamental fairness ought to prevail as it had only failed to submit the physically signed report due to administrative error. BALCA held that the Employer had been given an opportunity to submit the signed report with the audit response and failed to do so. Finally, the Employer argued that each statement in the recruitment report was verified by other documentation submitted with the audit response and therefore the omission of the physically signed report was immaterial. BALCA, using one of its favorite quotes, held that “PERM is…an exacting process.” Essentially, because a signature is a regulatory requirement under 656.17(g)(1), then there must be a signature, no matter how unfair it may seem in light of all the facts of the case.

It’s really a shame whenever something so simple and unintended leads to a PERM denial or in this case, three PERM denials. But it highlights the importance of checking and rechecking an audit response before it is submitted and the importance of having, if possible, more than one pair of eyes review the response prior to submitting it. PERM can be a very unforgiving process.

BALCA says US workers can be lawfully rejected for “lack of experience”

In Presto Absorbent Products, Inc., 2012-PER-00775 (May 26, 2015), the CO denied the PERM finding that the Employer failed to provide lawful reasons for rejection. The Employer’s recruitment report stated that the Employer received eight resumes and that the applicants lacked experience. The Employer also stated that “All applicants were reviewed to determine if they would be able and qualified to perform the duties of the position within a reasonable amount of on-the-job training. All applicants were determined not to have been able and qualified for the position even with a reasonable amount of on-the-job training.” BALCA held that the regulation does not indicate a level of specificity beyond what the Employer provided and that “lack of experience” is a lawful reason for rejecting applicants.

While it is indeed heartening anytime BALCA errs on the side of reason, I don’t think PERM practitioners ought to rely too heavily on this decision and it’s always best to be as specific as possible in providing the reasons for rejection of US workers. For instance, instead of “lacks the technological experience” it would be clearer to state, “lacks experience in the required technologies such as C++, Java & PL/SQL” and instead of “lacks experience” it might be better to say “applicant possesses only 2 years of experience but the position requires 5 years of experience.” Even if it may appear silly to have to spell out the obvious, it might be valuable time and money saved by preventing an erroneous denial.

BALCA comments on newspaper circulation and distance to the area of intended employment

In Pentair Technical Products, 2011-PER-01754 (Aug. 5, 2015), the Employer used the San Antonio Express newspaper (the “Express-News”) for its first Sunday newspaper advertisement to recruit for a professional position in Pharr, Texas. The CO denied the PERM on the grounds that the Express-News is circulated in San Antonio, Texas and not in the area of intended employment – Pharr, Texas.

Under 20 CFR § 656.17(e)(1)(i)(B)(1), one option for an employer’s mandatory print advertisements for a professional position is “[p]lacing an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available US workers.”

In a motion for reconsideration, the Employer argued that the Express-News is circulated in Pharr, Texas. The Employer argued that it chose the Express-News as it is the largest newspaper with general circulation in Pharr in order to reach the largest number of US workers. The Employer’s attorney also argued that he had personally contacted the Express-News and a representative at the newspaper had verified that the paper is circulated in Pharr, Texas. The CO nevertheless found that his denial was valid because San Antonio is four hours away from Pharr, well outside commuting distance and so the Employer had failed to advertise in the area of intended employment.

BALCA found that the issue of whether or not San Antonio is outside normal commuting distance from Pharr is relevant only if the Express-News were only available in San Antonio and not in Pharr. However, the record established that the Express-News is a newspaper of general circulation in Pharr. Accordingly, the fact that it is published in San Antonio is of no legal consequence.

BALCA pointed out that when a single area of intended employment is served by multiple newspapers, the CO ought not to be concerned with which paper reaches the most people but rather with whether the newspaper reached the intended audience and is a “newspaper of general circulation in the area of intended employment.” As an example, BALCA stated that if Trenton, NJ is the area of intended employment, whether The New York Post is more “appropriate” than The Trenton Times because it has more readers is irrelevant and there is nothing in the regulations that requires an employer to utilize the newspaper with the highest circulation in the area of intended employment or the newspaper published closest to the area of intended employment.

At first look, the case appears to be very encouraging. As long as the newspaper reaches its intended audience, all is well. Not so fast. This is another one of those cases where BALCA’s decision is expressly limited to the precise facts of the case. BALCA takes time to point out that in this case the CO did not deny the PERM based on a finding that the Employer had failed to utilize the “most appropriate” newspaper. The only issue raised in the denial was whether the Employer placed a newspaper advertisement in the area of intended employment so that is the only issue that BALCA has addressed. As to whether Express-News was the newspaper “most appropriate” to the occupation for which the Employer was recruiting, we will never know.

It can be very difficult for employers to decide where to advertise. This case answers the question of whether it is permissible to advertise in The New York Times for a position in New Jersey. Yes, it is permissible because The New York Times is a newspaper of general circulation in New Jersey. But this case does not provide any guidelines for an employer struggling to determine which newspaper is “most appropriate.” For instance, in recruiting for a professional position in New York City, how does an employer decide between The New York Post vs. The New York Times? It is significantly more expensive to advertise in The New York Times and so an employer may not want to do that unless that newspaper is the only newspaper that would be permissible under the regulations. What statistics would that employer need to examine? Should that employer just assume that The New York Times is the newspaper most read by professionals and therefore The New York Times will always be “most appropriate” in recruiting for any professional position? In a footnote, BALCA mentioned that the Employer utilized The Monitor as the newspaper for the second Sunday advertisement and that this was not challenged by the CO. BALCA pointed out that the regulations refer to “newspaper” in the singular in requiring advertisements to be placed “in the newspaper of general circulation in the area of intended employment.” BALCA commented that the regulations do not appear to contemplate a situation where more than one newspaper is circulated in the area of intended employment and the newspapers are equally appropriate given the employment at issue and the workers likely to apply for the job. BALCA conveniently declined to comment on that issue. So while it is great that employers can choose any newspaper as long as it is one of general circulation in the area of intended employment, employers need to remain concerned about ensuring that the paper chosen is the “most appropriate” paper and it’s probably just best to use the same paper for both of the Sunday ads.

These recent cases highlight the “little” things that can lead to a big denial of a PERM. Just reading these cases creates heightened awareness of potential issues and naturally leads to better and more focused reviews of documentation prepared during the PERM process and documentation submitted to the Department of Labor.
Cora-Ann Pestaina

BALCA ON THE HOME OFFICE OPTION

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It’s time for another lesson, courtesy of BALCA (Board of Alien Labor Certification Appeals).  In a November 2010 blog entitled PERM AND THE ROVING EMPLOYEE I discussed different types of roving employees and the existing BALCA or DOL (Department of Labor) guidance on how recruitment for these types of positions ought to be conducted. I raised the question, “What should the employer do when the employee works from home in a location that is different from the employer’s headquarters?” and stated “[this] less common issue of the home office has not yet been the subject of a BALCA decision.”

In an October 2011 blog entitled, BALCA SAYS THERE IS NO NEED TO LIST EVERY BENEFIT OF EMPLOYMENT IN JOB ADVERTISEMENTS, with still no definitive word from BALCA on the home office issue, I discussed Matter of Emma Willard School, 2010-PER-01101 (BALCA, September 28, 2011) where the DOL’s CO (Certifying Officer) had denied the employer’s PERM application because the recruitment failed to state that subsidized housing was being offered to the qualified US worker. In that case, BALCA held that there is no obligation for an employer to list every item or condition of employment in its advertisements and listing none does not create an automatic assumption that no employment benefits exist. In my blog, I suggested that an employer whose PERM application was denied because the recruitment did not list a “work from home” benefit, might be able to argue, under Emma Willard School, that it was not required to list all benefits in its recruitment and that the choice not to list the “work from home” benefit should not serve to deter any US workers from applying for the position because US workers are savvy and well aware of the increasing flexibility offered by employers with regard to where they perform the duties of the job. While I presented an argument that could have been made after receipt of a PERM denial, readers of that blog would likely have taken away that it is certainly better to list the “work from home” benefit in all of the recruitment. BALCA has finally spoken on this issue and has made the requirement very clear.

In Siemens Water Technologies Corp., 2011-PER-00955 (July 23, 2013), the employer filed a PERM application for the position of Field Service Engineer. In all its recruitment the employer listed Houston, Texas as the location for the job opportunity and conducted recruitment from that location. The PERM was audited and in its audit response, the employer explained that the primary worksite listed on the ETA Form 9089 was the same as the foreign worker’s home address because the Field Service Engineer would be permitted to work from home and travel to various client sites as necessary. The CO denied the application because the benefit of working from home was not offered to U.S. workers.

In its Request for Reconsideration, the employer argued that there is no regulation that requires advertisements to indicate that the geographic location is a home office. The employer argued that its recruitment was properly conducted based on the Texas worksite address and in support of its position cited minutes from the DOL’s March 15, 2007 Stakeholders Liaison Meeting which read as follows:

19. If an employer requires an employee to work from home in a region of intended employment that is different from the location of the employer’s headquarters (i.e. work is required to be performed in a designated county or state that differs from the employer’s headquarters), please confirm that the prevailing wage determination and recruitment can take place in the location of the employee’s region of intended employment. Please confirm that the notice of posting under this circumstance should be posted at the company’s headquarters.

If the 9089 form shows the worksite at a designated location other than headquarters, the PWD and recruitment would be for the worksite. AILA note: This issue essentially requires a strategy decision. The PERM form can state that the worksite is the home office, in which case the PWD and recruitment can be for the area of the home office, but the fact that the worksite is the same as the foreign national’s home address will be picked up by the PERM system and the case will likely be audited. This can then be addressed in the audit response and should not be a problem, if the case is otherwise approvable. Alternatively, the PERM form can state that the worksite is the headquarters office, but then the PWD and recruitment must be done for that location.

20. In the case of a telecommuter or an employee whose location is not specific to the job, please confirm that the notice of posting, recruitment, and prevailing wage determination should be based on the location of the employer’s headquarters.

Please see answer to number 19 above.

The employer argued that its recruitment did not contain any terms and conditions of employment that were less favorable than those offered to the foreign national. The CO denied reconsideration and forwarded the case to BALCA.

BALCA held that the employer’s reliance on the minutes of the Stakeholders Liaison Meeting was misplaced and stated that while the employer may indeed conduct recruitment from the location where the foreign national resides and may list the foreign national’s address as the primary worksite on the ETA Form 9089, the minutes of the Stakeholders Liaison Meeting are silent on what geographic location should be included in the advertisements in cases where the applicant would work from home. BALCA found that applicants reading the employer’s advertisements would think that they were restricted to working in Houston, Texas when, in contrast, the foreign national was given the option to work from his home which did not necessarily have to be in Houston, Texas. BALCA held that the recruitment was unduly restrictive and misleading and could have prevented potential US applicants from applying for the job. Although the CO did not cite this in the initial denial, BALCA also found that the recruitment violated 20 CFR § 656.17(f)(3) and (4) because it was not specific enough to apprise applicants of where they would have to reside to perform the job and applicants were also not informed of the travel requirement that the employer explained in its audit response.

Time and time again we see that the fact that the PERM regulations provide no guidance on a particular issue is no defense when the DOL decides that an error has been made. As practitioners, we are left constantly trying to anticipate potential novel reasons for denial. We cannot confidently rely on existing guidance but must somehow anticipate future guidance and comply with that! One of the main takeaways from this case is that, as a rule of thumb, it’s a good idea to include in the recruitment any unusual benefit that will be given to (e.g. work from home, subsided housing) or requirement that will be asked of (e.g. travel, relocation, mandatory week-end employment) the qualified candidate for the offered position.
Cora-Ann Pestaina

RESUME REVIEW IN THE PERM PROCESS

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Under the Immigration and Nationality Act, the Department of Labor (DOL) has a statutory responsibility to ensure that no foreign worker (or “alien”) is admitted for permanent residence based upon an offer of employment absent a finding that there are not sufficient U.S. workers who are able, willing, qualified and available for the work to be undertaken and that the admission of such worker will not adversely affect the wages and working conditions of U.S. workers similarly employed.  INA § 212(a)(5)(A)(i).The DOL fulfills this responsibility by determining the availability of qualified U.S. workers before approving a permanent labor certification application and by ensuring that U.S. workers are fairly considered for all job opportunities that are the subject of a permanent labor certification application.  Accordingly, the DOL relies on employers who file labor certification applications to recruit and consider U.S. workers in good faith.

Attorneys, agents, and foreign workers are prohibited from interviewing and considering U.S. workers during the permanent labor certification process, as described in 20 C.F.R. § 656.10 (b)(2)(i) and (ii). However, the DOL does not prohibit attorneys and agents from performing the analyses necessary to counsel their clients on legal questions that may arise with respect to this process.  The employer, and not the attorney or agent, must be the first to review an application for employment, and must determine whether a U.S. applicant’s qualifications meet the minimum requirements for the position, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed.

The DOL has indicated that good faith recruitment requires that an employer’s process for considering U.S. workers who respond to certification-related recruitment closely resemble the employer’s normal consideration process. Yet, real world recruiting is at times impossible when the DOL sets forth “unreal” recruitment standards for employers! As an attorney who regularly counsels employers filing PERM labor certifications, I have found that one of the most difficult concepts for some employers to grasp is the resume review process and how it ought to be conducted in the PERM process.It’s hard for an employer to comprehend why they have to continue to assess an applicant who upon receipt of an e-mail from the employer, responded that he was “away” and would get back to the employer at some point in the following week; or an applicant who, when contacted, had no recollection that he had even applied for the job and needed to be informed of the job opportunity and the employer’s business; or an applicant who only listed “Software Engineer” as his experience leaving the employer unclear as to what skills he may possess. As reasons for rejection of applicants, employers sometimes state,“applicant is far too overqualified and I would never hire him for this position” or “these applicants went to foreign universities and I know they require sponsorship.” While these reasons may be acceptable in the employer’s normal consideration process, neither is a valid reason for rejection in the PERM process.Some employers become frustrated and push back. I find that I very often have to preface my comments with “We are not operating in the real world here…”

Currently, and for some time now, every PERM audit letter requests verification of the unavailability of US workers. A request for resumes and applications for all US workers who applied for the job opportunity seems to have become the standard. The DOL specifically wants to review documentation of the employer’s contact with applicants and its assessment of the qualification of applicants.Yet, other than the expectation that the employer conduct “good faith” PERM recruitment, the DOL has not issued significant guidance with regard to resume review. But it is possible to glean some information from recent decisions by the Board of Alien Labor Certification Appeals (BALCA). In particular, two specific cases, involving Supervised Recruitment, shed some light on how the DOL expects employers to conduct resume reviews.

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,” language well-known to practitioners filing PERM applications as the Kellogg language based on Matter of Francis Kellogg, 94-INA-465 (Feb. 2, 1998) (en banc). 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.

The takeaway from Goldman Sachs, and the concept that can be difficult to explain to employer clients, is that regardless of how convinced the employer may be that the U.S. worker applicant is unqualified for the position based only on his resume, if there is even a hint that the applicant may appear qualified to the untrained eye of a CO, it is worth the employer’s time to interview the applicant. During an interview, the employer can zero in on the specific requirements of the offered position and better assess the applicant’s qualifications.

In JP Morgan Chase & Co., 2011-PER-01000 (Jul. 16. 2012), the employer’s requirements included “Proficiency in Excel or Access,…understanding of databases (Lotus Notes and SharePoint), must have experience liaising with a technology team to develop/update product enhancement tool, databases and work flow engines…” The CO denied the case after concluding that U.S. worker applicants had a combination of education, training and experience equivalent to the employer’s job requirements and could acquire Access and SharePoint skills while on the job.

Rather than focusing, as it did in Goldman Sachs, on whether or not the employer had a duty to interview the U.S. workers to better assess their qualifications, the key issue for BALCA was whether or not the employer’s stated minimum requirements were established as a business necessity. BALCA stated that the employer had submitted a business necessity explanation in its Recruitment Report detailing why it requires an understanding of Lotus Notes and SharePoint and why job training was not feasible; the CO did not contend that these requirements were unduly restrictive; and the resumes of the U.S. worker applicants showed that they did not have the required skills. Based on this, BALCA held that the CO cannot dismiss the employer’s stated requirements and substitute his judgment for the employer’s.

Confused much? The JP Morgan case emphasizes the importance of submitting a compelling business necessity argument in response to PERM audits. That way, if and when the employer rejects U.S. workers, the reason will be clear to the CO. But does the employer have to interview when the applicant’s resume does not list all the requirements or not? I think the clear answer is that the employer should always err on the side of interviewing the applicants. If there is even a hint of a question as to whether the applicant may appear qualified, the employer should interview. If the applicant failed to list the one technology required for the position but listed 5 similar technologies, the employer should interview. If the employer has stated that it will accept any combination of education, training and experience and the applicant has broadly listed his experience as simply “Software Engineer,” the employer should interview. While the DOL claims that the employer’s consideration of these applicants should resemble its normal consideration process, it just cannot. In normal consideration processes, the employer may utilize its judgment to reject any applicant deemed unqualified.  When it comes to the PERM process, the employer must go out of its way to demonstrate to the DOL that it has, in good faith, tried it’s best to find a U.S. worker to fill the offered position. In addition, the employer should take pains to explain in great detail, if audited, specifically why each applicant was not qualified for the offered position, providing evidence of any interviews and other communication with the applicants.

Cora-Ann Pestaina

BALCA CLARIFIES DOL’S POSITION ON PROOF OF PUBLICATION OF THE SWA JOB ORDER AND ADS PLACED BY PRIVATE EMPLOYMENT FIRMS UNDER PERM

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As usual, BALCA (Board of Alien Labor Certification Appeals) decisions are very important for practitioners as they offer crucial insights into how to avoid some of the pitfalls in preparing and filing a labor certification application under Program Electronic Review Management (PERM) or into what arguments can be made in response to the unfortunate receipt of a PERM denial notice. BALCA recently issued some notable decisions.

DOCUMENTATION OF THE SWA JOB ORDER
While the Department of Labor (“DOL”) is obsessed about the employer presenting proof of publication of its recruitment, BALCA recently held, in an en banc decision, A Cut Above Ceramic Tile, 2010-PER-00224 (Mar. 8, 2012), 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.
The PERM regulations at 656.17(e)(2)(i) require an employer filing a PERM application to place a job order with the SWA serving the area of intended employment for a period of 30 days. That same section of the regulations also states, “[t]he start and end dates of the job order entered on the application serve as documentation of this step.” Pursuant to 656.10(f), all documentation supporting the PERM application must be retained for five years after filing the application. 656.17(a)(3) mandates that the employer must furnish “required supporting documentation” to the Certifying Officer (“CO”) if the PERM application is audited. A substantial failure by the employer to provide the required documentation will result in a denial of the PERM application. 656.20(b).

In A Cut Above Ceramic Tile, the employer attested, on an ETA Form 9089 filed on January 8, 2007, that, as part of its domestic recruitment efforts for the position of Tile Setter, it placed a job order with the SWA in the area of intended employment from July 13 to August 12, 2006. On June 11, 2009, the DOL issued an audit notification, which included the request for a copy of the job order placed with the SWA downloaded from the SWA internet job listing site; a copy of the job order provided by the SWA; or other proof of publication from the SWA containing the content of the job order. As part of its audit response, the employer included a copy of its completed Employer Job Order Information Sheet from VaEmploy.Com, the SWA for the state of Virginia. Citing 656.20(b) as authority, the CO denied the PERM application based on the employer’s failure to provide proof of publication of the SWA job order containing the content of the job order, as requested in the audit notification letter. The CO found that the employer’s submission of the Employer Job Order Information Sheet did not show the final content of the job order as run by the SWA.

The Employer filed a motion for reconsideration of the PERM denial arguing that the PERM regulations provide that the SWA job order is documented by the start and end dates entered on the ETA Form 9089. The employer also argued that it had tried to obtain proof of publication from the SWA but had been informed that proof of the publication of its job order had been deleted. The CO affirmed the denial and forwarded to case to BALCA which also affirmed the denial and held that the employer’s documentation only showed that the job order was placed for the required 30-day period but did not provide proof of its contents.

The Employer then filed a petition for en banc review which BALCA granted to resolve the issue of whether a CO may deny certification of a PERM application based on the employer’s failure to provide proof of the publication of the SWA job order. BALCA invited the American Immigration Lawyers Association (AILA) to file an amicus brief which it did. There was a conflict between BALCA panels because, in another case, Mandy Donuts Corp., 2009-PER-481 (Jan. 7, 2011), a BALCA panel compared the PERM regulations at 656.17(e)(2)(i) on placement of the job order and the regulations at 656.17(e)(1)(i)(B)(3) and 656.17(e)(2)(ii)(C) on placement of a newspaper advertisement and pointed out that the PERM regulations for documentation of proof of newspaper advertisements specifically require the employer to provide copies of the newspaper pages in which the advertisement appeared or proof of publication furnished by the newspaper. The panel held that the PERM regulations only require “placement” of the job order for 30 days which is documented by the start and end dates entered on the PERM application.The en banc panel in A Cut Above Ceramic Tile agreed with the Mandy Donuts panel and held that the distinction in the regulations is clear. The drafters of the regulation could easily have included a requirement that employers provide proof of publication of the SWA job order. In fact, the regulations governing the placement of a job order for the H-2B temporary nonagricultural labor certification program, also administered by the Employment and Training Administration (“ETA”) specifically require that the employer maintain a copy of the SWA job order or other proof of publication containing the text of the job order. 656.15(e)(1). The en banc panel reasoned that the ETA intentionally drafted the H-2B and the PERM SWA job orders regulations differently. In fact the ETA specifically stated in its response to comments regarding the audit process, that the employer is only required to provide the start and end date of the job order on the application to document the job order has been placed and the gathering of additional information on the job order from the SWA will not be necessary. See ETA, Final Rule, Implementation of New System, Labor Certification Process for the Permanent Employment of Aliens in the United States [“PERM”], 69 Fed. Reg. 77326, 77359 (Dec. 24, 2004). Essentially, the CO does not have the power to request just any type of documentation and the employer’s application may only be denied under 656.20(b) when the absent documentation is required.

While this en banc decision may appear attractive, and is certainly useful when inheriting flawed cases, practitioners ought to continue the practice of printing copies of the job order to demonstrate good faith recruitment. The BALCA en banc panel made sure to comment, in note 5, that “the spirit and the context of the PERM regulations, which are grounded in attestations backed up by retained documentation to support attestations, strongly suggest that an employer should retain and be able to produce documentation about the content and dates of action on all elements of recruitment. We would anticipate that most employers recruiting in good faith will have retained documentation in some form to show the content of the job order, and if so be able to produce it.” However, it is now clear that failure to produce the SWA job order cannot be the sole basis for a PERM denial.

THE USE OF PRIVATE EMPLOYMENT FIRMS TO CONDUCT RECRUITMENT

Under 656.17(e)(1)(ii), when conducting recruitment for a professional position, the employer must conduct three additional recruitment steps to advertise the position. The employer may choose from ten forms of recruitment including the use of a private employment firm or placement agency. 656.17(e)(1)(ii)(F) states:

The use of private employment firms or placement agencies can be documented by providing documentation sufficient to demonstrate that recruitment has been conducted by a private firm for the occupation for which certification is sought. For example, documentation might consist of copies of contracts between the employer and the private employment firm and copies of advertisements placed by the private employment forms for the occupation involved in the application.

In Credit Suisse Securities, 2010-PER-103 (Oct. 19, 2010), BALCA rejected the employer’s argument that 656.17(f), requiring that advertisements placed in newspapers of general circulation or in professional journals state the name of the employer and provide a description of the vacancy specific enough to apprise U.S. workers of the job opportunity, was not applicable to the additional recruitment steps for professional occupations, and held that the regulation in fact governs all forms of advertisement. However, not all the additional recruitment methods for professional positions readily lend themselves to these requirements. For instance, when recruiting through private employment firms, it makes no business sense to indicate the name of the employer because an applicant could then bypass the headhunter and apply directly to the employer. Indeed, in Credit Suisse Securities, BALCA acknowledged in note 7 that the requirements of 656.17(f) only applies to advertisements, and that it was not making a determination with respect to job fairs, on-campus recruiting, private employment firms and campus placement offices.In World Agape Mission Church, 2010-PER-01117 (Mar. 23, 2012), the employer conducted recruitment for the professional position of “Pastor (Associate)” recruiting through a private employment agency as one of the three additional recruitment steps for professional positions. The CO issued an audit notification and, as part of its response to the audit notification, the employer submitted a letter from the private employment agency certifying that the agency had checked its database for any qualified applicants and had posted the job posting online. The job posting listed the job title, salary information, a job description, experience and education requirements, and that the position was full-time. The job posting was identifiable by a job number. The CO argued that the employer’s name must be included in an advertisement to ensure that the results of an employer’s test of the labor market are legitimate. The CO cited 656.17(f)(1), requiring that advertisements placed in newspapers of general circulation “name the employer.”BALCA noted its decision in Credit Suisse Securities but held that an advertisement placed by a private employment agency is different than one placed directly by the employer. BALCA referenced its decision in HSB Solomon, 2011-PER-2599 (Oct.25, 2011) that 656.17(f) does not apply to advertisements placed by private employment firms. However, World Agape Mission Church makes it clear that the employer still has a duty to recruit in good faith and to make the job opportunity clearly open to all U.S. workers even when using a private employment agency. Of particular note was the fact that the job posting provided applicants with sufficient information like the job title, job duties, and education/experience requirements, and even if it did not list the name of the employer, it listed a job number which matched the job number listed in the letter from the employment agency certifying its recruitment. This allowed the CO to match the listing to the agency’s advertisement even without the inclusion of the employer’s name in the posting.SUPERVISED RECRUITMENT

As the supervised recruitment train keeps barreling through, we have to keep on the lookout for any BALCA decisions to help guide us through the process. BALCA recently issued two decisions worth reading.In Kennametal, Inc., 2010-PER-01512 (Mar. 27, 2012), BALCA held that the employer had improperly rejected U.S. workers because it did not consider the possibility that certain applicants could become qualified after a reasonable period of on-the-job training. But most interestingly, BALCA held that the employer’s rejection of applicants for not possessing the requisite bachelor’s degree was unlawful and specifically listed examples of applicants who had an associates’ degree and 10 to 24 years of experience. BALCA held that because the employer indicated in its advertisements that it would “accept a combination of education, training and experience” (well-known to practitioners filing PERM applications as the Kellogg language based on Matter of Francis Kellogg, 94-INA-465 (Feb. 2, 1998) (en banc), the employer should have considered these applicants and interviewed them to further evaluate their skills. This is particularly interesting in light of the fact that the DOL routinely requests that employers list the Kellogg language in the supervised recruitment advertisements even where it is not applicable. Now, employers have to be alert to the fact that the DOL could then use that same Kellogg language against them to argue that they unlawfully rejected U.S. workers.In JP Morgan Chase & Co, 2011-PER-00635, BALCA upheld the CO’s denial of the PERM application under supervised recruitment because the employer did not list the addresses of the U.S. worker applicants in the body of its recruitment report as required under the supervised recruitment regulations at 656.21(e)(3) despite the fact that the employer had submitted copies of all the resumes which listed the U.S. addresses of the applicants.