BALCA Affirms Denial of PERM Stating “Delivery of Products” Indicates Travel

July 12th, 2017

In Matter of Arbin Corporation (06/29/2017), BALCA affirmed a denial of a PERM labor certification application where the newspaper ads did not contain any language advising clients of travel. The job description included the phrase “delivery of products,” which to BALCA indicated travel. The PERM sponsor must always note any travel requirement in the PERM recruitment.

BALCA’S Ruling on PERM Case Involving Proper Disqualification Based on the Face of the Resume

July 3rd, 2017

In Sunnyvale School District, 2014-PER-00620, June 22, 2017, BALCA overturned the denial of a PERM labor certification application, finding that the US applicant may be disqualified on the face of the resume. In Sunnyvale, the employer filed a PERM application for a special education teacher. The employer required a valid California teaching license t provide services to children from birth through pre-kindergarten with special needs. The Certifying Officer (CO) audited the application and then directed the employer to conduct supervised recruitment. It instructed the employer to further investigate any applicant whose resume raises a reasonable possibility that the applicant meets all of the position’s requirements and explore the possibility of training US workers to perform the duties within a reasonable period of time.

The case revolves around one of the applicants whose resume indicated that she has a BS degree in elementary education, special education, three years of teaching experience in special education for sixth and seventh graders and in interest in teaching all ranges of ages. It did not indicate any license.

BALCA noted that it may be clear from the face of the resume that the US applicant’s deficiencies cannot be remedied through a reasonable period of on-the-job training. It offered the example of a resume that is silent as to whether the applicant meets a “major” requirement, such as a college degree. In such a case it found noted that an employer might reasonably assume that the applicant does not have such education, and therefore, rejection without follow up may be proper. It cited to Gorchev & Gorchev Graphic Design, 1989-INA-00118 (Nov. 29, 1990)(en banc)(pre-PERM).

If, however, the applicant’s resume notes a broad range of skills, education and training that are the job’s requirements, and is silent only about a “subsidiary” requirement, this makes it more likely that the applicant may meet all of the requirements and, hence, the employer has a duty to inquire further. BALCA noted that this obligation usually occurs when the applicant has the requisite degree but not the particular skill noted in Section H.14 (special requirements) of the Form 9089.

BALCA then found that in the instant case, the applicant’s resume omitted a major requirement – a professional state license. It held that under Gorchev, the employer could properly assume that the applicant’s failure to list such a major requirement meant that she did not have the license. Furthermore, BALCA held that it is doubtful that any amount of on-the-job training could substitute for such a license. Therefore, BALCA found that the applicant’s resume did not establish a reasonable possibility that she could qualify for the position.

USCIS Denies Downgraded EB-3 I-140 Petition and Revokes EB-2 for Chinese H-1B

May 19th, 2017

An H-1B worker from China called to inform me that USCIS has denied his company’s Form I-140 immigrant visa petition to downgrade from his approved Form I-140 petition and also revoked the company’s first I-140 EB-2 petition on his behalf. USCIS claimed that he did not have the requisite education, among other things. His current H-1B status will be valid until 2019. This situation must be evaluated under the high skilled worker rule published in January 2017 regarding the retention of priority dates and validity of I-140s later revoked. In this case, if the Chinese H-1B’s I-140 remains valid for H-1B extension purposes, then he can restart the PERM labor certification process, possibly retain the priority date, and not worry about extending his H-1B status again until his priority date becomes current.

Denials Suspended of PERM Cases Where H.14 Requirements Not Specified

December 9th, 2016

Based on BALCA’s decision in Matter of Smartzip Analytics, the DOL’s (Department of Labor’s) Office of Labor Certification (OFLC) will suspend denials of PERM labor certifications where experience noted in Section H.14 of the Form ETA 9089 was not quantified. In Matter of Smartzip Analytics, BALCA reversed the certifying officer’s denial where the required experience was not quantified for each skill listed in Section H.14 of the Form ETA 9089, explaining that the Form ETA 9089 nor its instructions mandate a duration requirement.

Filing a Second PERM Labor Certification Application for the Same Employee

October 25th, 2016

In Matter of Allianz Global Investors of America, BALCA upheld the Certifying Officer’s (of the Department of Labor) denial where the employer filed two PERM applications for the same employee with substantially similar job duties, referring to 20 CFR§656.24(e)(6), which states that the employer is not allowed to have more than one labor certification pending for the same foreign worker in the same job opportunity.

The best practice when filing a second PERM for an employee in the same occupation is to first withdraw the first one (preferably online, it is quick and easy).

Advanced Degree EB-2 Status for Indian Foreign Nationals

October 4th, 2016

The general rule in obtaining legal permanent residency under the EB-2 “professionals with advanced degrees” (INA §203(b)(2)) is that the foreign national beneficiary must have an advanced degree (master’s or higher) or a single-source bachelor’s degree.  For those foreign nationals from countries with immigrant visa number backlogs such as India and China, filing under the EB-2 category (as opposed to the lower EB-3 category that requires a bachelor’s degree or two years of skilled experience), can mean obtaining legal permanent residency years faster.   There are many exceptions to this highly confusing and esoteric area of the law.

One of the exceptions regards the requirement of a single-source bachelor’s degree.  USCIS has approved EB-2 Form I-140 immigrant visa petitions where the beneficiary earned a three-year bachelor’s of science degree (as confirmed by EDGE/AACRAO educational standards system) and an ensuing post-graduate diploma (PGD) from a program accredited by the AICTE (All-India Council for Technical Education) from India at the time the PGD was earned.

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.”

US Department of State’s Charlie Oppenheim and Immigrant Visa Movement

August 22nd, 2016

As of August 12, 2016, according to the US Department of State’s Charlie Oppenheim, the following can be expected in the movement of immigrant visas:

  • There will be an infusion of visa numbers for FY 2017 that will make EB-4 India and EB-4 Mexico current in October;
  • The final action date for EB-4 Guatemala, El Salvador and Honduras should progress to a date sometime in the summer of 2015;
  • EB-2 Worldwide should become current again in October 2016 but EB-3 Worldwide will most likely not become current;
  • The final action date for EB-2 China and EB-3 China will remain the same through the end of this fiscal year and in October EB-2 China is expected to advance to late 2011 or early 2012 and EB-3 China’s final action should reach 2012 or early 2013; and
  • In October EB-2 India should advance to early 2007 and EB-3 India should progress slowly and is likely to remain at a 2005 date in October.

BALCA Upholds PERM Where Alternative Requirements Were Omitted from Ads

August 15th, 2016

In Cosmos Foundation, Inc., BALCA reversed the denial of the Form ETA 9089 PERM labor certification and found that the employer’s omission of the alternative experience requirements in the recruitment sufficiently apprised US workers of the open position and did not discourage potentially qualified candidates from applying. Matter of Cosmos Foundation, Inc., 2012-PER-01637 (August 4, 2016).   The CO stated that the PERM labor certification application was denied because the omission violated two provisions of the PERM regulations:  (1) not sufficiently apprising US workers of the job opportunity and (2) not having the job clearly open to US workers (656.10(c)(8)).

 

BALCA found that an Employment and Training (ETA) FAQ addresses the level of detail required in the employer’s advertisement. This states that “Employers need to apprise applicants of the job opportunity.  The regulation does not require employers to run advertisement enumerating every job duty, job requirement, and conditions of employment. . . “  https://www.foreignlaborcert.doleta.go/faqanswers.cfm (last visited May 31, 2016).  BALCA concluded that not every job requirement must be included in the ad in order to notify US workers of a job opportunity.”

 

Also, in this case, the ad stated that 24 months of experience was necessary. BALCA accepted the employer’s argument that the reasonable interpretation of the employer’s listed job experience requirement was that applicants were required to have two years of experience in a specific field versus in the particular job noted in the PERM application.   Therefore, BALCA found that the employer’s omission of the alternative experience requirement did not discourage qualified applicants’ interest in the job.

BALCA PERM Labor Certification Application Cases

May 25th, 2016

Recently, BALCA has decided a number of cases clarifying regulations surrounding the PERM labor certification application. Such case law is helpful in providing clear instructions to the otherwise general guidelines provided in the Code of Federal Regulations, which has created guesswork for immigration attorneys and employers attempting to comply with the plethora of PERM rules.  The following is a summary of these cases.

Worksite Relocation:  BALCA overturned a denial of a PERM labor certification application, relying on the Farmer Memo, where employer had unanticipated work locations, including the possibility of relocation.  BALCA noted that the Department of Labor must provide advance notice before imposing new requirements. (Matter of Infosys Ltd, 5/12/16)

Sufficiency of employer’s statement on candidate’s qualifications:  BALCA upheld the denial of a PERM labor certification application where the employer failed to investigate further, by interview or other means, the qualifications of the candidate where the candidate’s résumé raised the “reasonable prospect” of the candidate being qualified based on education and overall experience. (Matter of CEO Ally, Inc., 5/12/16)

PERM audit documents: BALCA found that the employer’s job search radio ad and web ad on the internal website met the requirements of  20 CFR §656.17(e)(1)(ii)(B) and (j) where the employer provided an audio recording of the radio advertisement but did not include a text copy, and where copies of its website postings were not dated. (Matter of Waldorf School of Orange County, 11/06/2015)

Verification of employer’s sponsorship: BALCA found that the employer provided adequate information in the record to verify an employer’s sponsorship for a PERM labor certification. It  found that the sworn statement that the employer provided with its PERM labor certification application and an email exchange among the ANCP, the employer, and the attorney of record was acceptable proof of sponsorship. (Matter of La Hacienda Meat Market, Inc. 11/04/2015)

Job order and additional requirements: BALCA reversed the denial of the PERM labor certification application that was originally denied following an audit. The CO found that the job duties listed on the job order and that listed on job search website negated job requirements. BALCA reversed the denial citing the holdings in Chabad Lubavitch Center and Symantec Corporation. (Matter of First Tek Technologies, Inc. 11/04/2015)

Opportunity to submit documents during the audit process: BALCA affirmed the Certifying Officer’s denial of the PERM labor certification application due to the fact that the employer had the opportunity to provide the requested documents during an audit process and was barred from providing amended documentation under 20 CFR §656.24(g)(2)(i)-(ii). (Matter of Accent-Media Productions, Inc. 09/23/2015)