BALCA Cases on PERM Requirements and Recruitment

July 25th, 2017

The Department of Labor’s Board of Alien Labor Certification Appeals (BALCA) recently published three cases on the minimum requirements, recruitment and disqualification of US workers associated with PERM labor certification applications. The PERM process is designed to protect US workers by requiring employers that sponsor foreign nationals to first conduct a test of the US labor market (by running ads and placing postings) to determine if there are any qualified US workers. If such a worker does respond to the PERM ads, then the employer may not file the PERM labor certification application (Form 9089) but is not required to hire such US worker.

In Matter of MSL, Inc. (7/17/17), BALCA upheld the denial of a PERM labor certification finding that a US worker was improperly rejected for not passing a test where the Form 9089 and recruitment did not disclose a testing requirement, and there was no evidence that the foreign worker was required to take a test. BALCA cited 20 CFR §656.17(i)(1) that provides that “the job requirements, as described [on the Form 9089], must represent the employer’s actual minimum requirements for the job opportunity.” It emphasized that the employer must not treat the alien more favorably than a US worker.

In Matter of Systime Computer Corporation (7/18/17), BALCA overturned the CO’s denial based on a finding that the position was not clearly open to US workers where the Form 9089 PERM labor certification allowed for alternate requirements that were not mentioned in recruitment. On the Form 9089, the employer indicated the requirements of a bachelor’s degree in computer science, engineering or a related field and 24 months of experience. The employer also stated on the form that 24 months as a software designer, developer or tester as an alternative requirement to the experience in computer science or engineering. Also, the employer specified that four years of relevant experience would obviate any educational requirement and finally stated that it would accept any suitable combination of education, training or experience for the position and a combination of degrees, diplomas and experience equivalent to a bachelor’s degree and 24 months of experience. The employer did not include the precise alternate experience requirements described on the Form 9089 in any of the ads. The website ads placed by the employer noted that it “will accept a combination of education and experience equivalent to a bachelor’s degree and 24 months of experience.”

BALCA analyzed Matter of Systime Computer Corporation under 20 CFR§656.10(c)(8), which requires an employer to attest that “[t]he job opportunity has been and is clearly open to any US worker.” It noted that in prior decisions the relevant inquiry under this regulation is whether the employer’s job search website ads and job order “so misinformed, or so failed to inform, potential applicants about the job opportunity that the recruitment did not support the Employer’s attestation that the job opportunity was clearly open to any US worker.” It referred to cases denied where the salary was understated or the requirements overstated in the ads. BALCA also noted that in other cases a mere omission of information does not result in a finding that the job is not clearly open to US workers. It found that the omission here was of an equivalent requirement (and not an overstatement of the actual minimum requirements) and that such omission was not sufficient to undermine the employer’s PERM attestation that a position was open to any US worker.

In Matter of Pixar (7/17/17), BALCA applied the reasoning from Smartzip Analytics, finding that a Form 9089 labor certification application cannot be denied on its face based on a failure to provide a duration requirement for special skills listed in Box H.14, short of legally sufficient notice of a requirement to do so. The Form 9089 does not require, or have a specific field to enter, such specific information.