BALCA Upholds Denial of PERM Where Candidates Did Not Have Related Degrees

September 25th, 2016

In Cardinal Health, BALCA upheld the denial of the Form ETA 9089 PERM labor certification and found that the employer did not lawfully reject qualified US workers. Matter of Cardinal Health, 2012-PER-03522 (September 13, 2016).   The CO stated that the PERM labor certification application was denied because the Employer failed to at least interview candidates who, although they did not possess the precise degree required in the PERM application, appeared to have a suitable combination of education, training and experience.

BALCA noted that the regulations require that the CO must consider a US worker able and qualified to hold the position offered if the candidate “by education, training, experience or a combination thereof, is able to perform in the normally accepted manner the duties involved in the occupation.  20 CFR §656.24(b)(2)(I).”  In this case, the CO found that although three candidates did not earn the degrees noted on the ETA Form 9089 PERM application, they did have extensive experience in the same field described in the ETA Form 9089.  BALCA held, “Where the record shows that an applicant has performed the very type of work that is described in the Form 9089, eliminating such a qualified applicant because his or her degree is not in a specified field appears to run counter to the purpose of the regulation.”