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)

BALCA Denies PERM for Failure to Properly Consider US Applicant

May 17th, 2016

BALCA upheld the denial of a Form ETA 9089 PERM labor certification application where the employer failed to properly inquire into the qualifications of an applicant whose resume raised a reasonable prospect of the applicant’s meeting the minimum requirements for the position.  Matter of CEO Ally, Inc. 5/12/2016.

Employers filing PERM applications must certify that any US worker applicants were rejected for lawful job-related reasons.  If a US worker does not have the precise education, experience, training or other credentials as required by the employer, then if the US worker has a suitable combination of education, training or experience, and is able to reasonably perform the job duties (or could be trained within a reasonable period of time), the PERM application will fail.  The employer is not required to hire the US worker applicant but cannot sponsor the foreign national based on this round of recruitment.  The employer would have to redo the recruitment to test the US labor market.

In this case, the employer stated that it had rejected one candidate based on the face of the resume without a further review of her credentials. The certifying officer (CO) found that the resume showed a broad range of experience, education and training, raising the reasonable possibility that the candidate met the actual requirements on the PERM application and obligating the employer to investigate her background further.  The candidate had the requisite master’s degree and over 20 years of experience (noted on her resume) in a related field but not the 48 months of experience in the area as required on the PERM application.  The employer rejected the candidate based on her resume and the fact that it did not show the 48 months of requisite experience.

BALCA held that the CO was correct in its conclusion that the employer had an obligation to investigate the candidate’s background further to ascertain if she could “acquire the skills necessary to perform the job duties involved in the occupation during a reasonable period of on-the-job training.”  §656.24(b)(2) (i).

 

BALCA Finds One Newspaper Sufficient as Both General Circulation and Local Newspaper for PERM Labor Certification Applications

May 6th, 2014

The Board of Alien Labor Certification Appeals (BALCA) held that the employer’s PERM advertising in the same newspaper could satisfy the criteria of newspapers of general circulation (for the Sunday ads) and local newspapers.  Matter of Delta Search Labs, 2011-PER-02871,  4/24/2014.  In addition to the job order, two Sunday general circulation newspaper ads and the internal notice of posting, the employer must conduct three additional recruitment steps for any professional position.  Such recruitment may include local or ethnic newspapers, referral programs, college campus recruiting, private recruitment, job websites, the company’s website and radio and TV.  In this case, the employer placed two Sunday ads in the Boston Globe as an ad in the same paper during the week.  The employer chose the Globe because it was most likely to produce responses from able, willing and qualified US workers.

Retaining Priority Date of I-140 Immigrant Visa Petition for Green Card Case

April 10th, 2014

The beneficiary of an approved Form I-140 immigrant visa petition in the EB-1, EB-2 or EB-3 employment-based category may retain the priority date of this petition for all subsequent I-140 petitions filed on his her behalf in the EB-1, EB-2 or EB-3 category.  This could significantly reduce the processing time to obtain legal permanent residency (the green card).  This applies even where the I-140 petition has been revoked after its approval.  The exception, where the revocation results in a loss of the priority date for this petition, is where there was fraud or misrepresentation.

The priority date is the beneficiary alien’s place in line for an immigrant visa number to apply for legal permanent residency.  It is either the date that the PERM labor certification application (Form ETA 9089) is filed with the Department of Labor, or if the PERM process is bypassed for those outstanding ability aliens, the date the Form I-140 immigrant visa petition is filed.  There are 140,000 employment-based visa numbers allocated each year equally to each country worldwide.  For those countries whose number of foreign nationals applying for a visa number exceeds the visas allotted to that country, such as India and China, a backlog results and these applicants are assigned a place in the line (the priority date).

Especially for those from India or China, or those in the EB-3 worldwide category, in which case immigrant visa numbers are not current and there is a long wait for them, retention of a priority date is a boon.  For example, let’s take an Indian software engineer with an I-140 approved on her behalf in the EB-3 category and with a priority date of September 1, 2009.  If she changes H-1B employers, leaving the employer that obtained the I-140 for her, she can retain the priority date from that petition and use it in her second PERM labor certification-based green card case at her subsequent employer.  If that second employer obtains a certified PERM application on her behalf in 2013, which has a priority date of 2013, then when filing its I-140 on her behalf it can instruct USCIS to accord its I-140 the priority date of the first 140 petition.  Even if the beneficiary’s first I-140 is revoked (except for fraud or misrepresentation), she can still retain the priority date.

BALCA Finds Dice.com Not a Professional Organization for PERM Labor Certification Recruitment

November 7th, 2013

BALCA has found that Dice.com is not a professional organization for PERM recruitment purposes under 20 CFR §656.17(e)I1)(ii)E), but rather a job search website for IT professionals.  Prithvi Information Solutions LLC, 2011-PER-01112 (BALCA, November 1, 2013).  An employer must conduct certain recruitment before filing a PERM labor certification application to ensure that there are no able, available, willing and qualified US workers for the position.  20 CFR §656.17(e).  If it is a professional position, then it must place a job order and advertise in a newspaper or professional journal, and it must select three additional forms of recruitment of a list of alternatives.  20 CFR §656.17(e)(1).  One of the additional forms of recruitment is through a professional or trade organization.  In Privthi Information Solutions LLC, the employer stated that it used a professional organization – Dice.com.  BALCA found that this was not a professional organization for PERM recruitment purposes because its focus was on IT job search activities and not on professional activities related to professional organizations (original content, academic conferences and research, etc).

 

 

US DOL Website Reopen at a Snail’s Pace

October 22nd, 2013

Now that the US government is reopen, the US Department of Labor’s (DOL) iCert website is now “functional,” although as slow as honey.  The DOL has jurisdiction over the Labor Condition Application (LCA), which is required for the H-1B petition, and also for issuing prevailing wage (PW) determinations, which are required for the PERM labor certification application, the first stage of the green card process for most employment-based foreign workers.  During the shutdown, some H-1B workers were not able to file timely extension petitions to maintain their status.  However, USCIS, which adjudicates the H-1B petitions, has stated that it will accept late-filed petitions under the extraordinary circumstances exception, since the employers and H-1B employees should not be penalized for the government’s delays.

The DOL has not yet issued its policy on how to deal with PERM labor certification applications that employers were unable to file for which the recruitment became stale during the shutdown.  Upon filing a PERM application, the recruitment must have transpired between 30 and 180 days (except for one form of recruitment, and not including the notice of posting or the job order).  To restart a PERM application is very costly because of the recruitment requirements.  Also, the employer can be greatly harmed if it needs to restart a PERM case, since qualified US workers may apply for the position the second time around, which is the death knell for the PERM case.  The employee can be harmed as well if her only way of obtaining more than six years in H-1B status is by showing that a PERM application was filed by the end of her fifth year in H-1B status.

Let’s hope that the shutdown shenanigans do not rear their ugly head this January when the budget must be renegotiated.

BALCA Reverses Denial of PERM Labor Certification Based on Omission

September 30th, 2013

In Saran Indian Cuisine, 2011-PER-01939 (August 27, 2013), BALCA held that the employer’s failure to submit a notarized statement attesting to its sponsorship of the alien did not constitute a substantial failure to provide required documentation pursuant to the PERM regulations.  The audit requested a notarized statement from the employer attesting to the sponsorship of the foreign worker.  The employer did not include such a statement in its response to the audit.  The CO denied the PERM labor certification based on the employer’s failure to provide the written notarized attestation.

BALCA found that the PERM labor certification was wrongfully denied under 20 C.F.R. §656.20(b), which states that a “substantial failure by the employer to provide required documentation” will result in a denial of the application.  It stated that it has consistently affirmed denials under 20 C.F.R. §656.20(b) when the “required documentation” that an employer omits in an audit response is documentation specifically identified in the regulations as necessary evidence for a particular attestation.  BALCA then referred to SAP America, Inc., 2010-PER-01250 (April 18, 2013(en banc), which further clarified what constitutes a substantial failure under 20 C.F.R. §656.20(b).  In this case, BALCA stated that when omitted requested documentation is merely supplemental documentation that is not specified by the statute, then such omission is not a substantial failure by the employer to provide required documentation.

BALCA applied SAP America’s reasoning to this case and found that the requested notarized statement was not documentation that was required by regulation and that the omission of such documentation did not materially affect the certifying officer’s (CO) review of the application.  It found that verification of the employer’s sponsorship was sufficiently satisfied by the employer’s signing the attestation on the Form ETA 9089 at Section N, since such signature is a sworn statement under penalty of perjury (20 C.F.R. §656.10(c)).

Therefore, BALCA held that the employer did not substantially fail to provide required documentation, reversed the CO’s denial and remanded the matter.

 

BALCA Case on Validity of the Job Order for the PERM Labor Certification

June 26th, 2012

In Industrial Steel Products, LLC, 2012-PER-00542 (June 21, 2012), BALCA held that the 180-day validity period for the job order should be calculated based on the commencement date of the SWA job order rather than the end date. The regulation at 20 CFR §656.17(e) provides that a job order must be placed with the SWA for a period of 30 days and conducted at least 30 days but no more than 180 days before the filing of the labor certification application. BALCA cited Blue Mountain Stone, Inc. 2010-PER-481 (Feb. 24, 2011) for an explanation: “Under the regulations, the SWA job order must have ended at least 30 days prior to the filing of the Form ETA 9089. . . This regulatory requirement is designed to ensure that an employer has sufficient time to receive resumes, make contact with any applicants, conduct interviews and make decisions regarding applicants who have responded to the job . . .”

Therefore, BALCA affirmed the certifying officer’s denial of the labor certification where the employer placed the job order more than 180 days prior to filing the Form ETA 9089 PERM labor certification application.

BALCA Finds Must Use Higher of Two PW Surveys

April 30th, 2011

In Take Solutions, Inc., 2010-PER-00907 (April 28, 2011), BALCA found that where the employer receives two different prevailing wage determinations (PWD) for the same position based on its primary and alternative minimum requirements, it must use the higher of the two. In this case, the employer filed a Form ETA 9089 PERM labor certification application with the primary requirements a bachelor’s degree and five years of experience and its alternative minimum requirements a master’s degree plus one year of experience. The employer had obtained two different PWDs for the same position. On the Form ETA 9089 PERM labor certification application, it referred to the lower PWD based on the master’s and one year of experience (given skill level 2). In response to an audit, the employer provided the higher PWD based on a bachelor’s degree plus five years of experience (based on skill level 4). The CO denied the PERM application stating that the PWD provided by the employer did not match the PWD noted on the PERM application. The employer filed a motion for reconsideration along with the PWD noted on the Form ETA 9089, which was a lower PWD and based on the alternative minimum requirements of a master’s degree plus one year of experience. The CO denied the motion because the PWD referred to in the PERM application did not match the PWD provided on audit and the CO did not consider the PWD provided by the employer on reconsideration.

BALCA held that where the employer receives two different PWDs and provides such evidence that it must use the higher PWD. BALCA reasoned that this was to protect the wages of US workers, since if the employer paid the lower wage, based on the alternative minimum requirements of a master’s plus one, to workers with a bachelor’s plus five years of experience, it would have an adverse affect on these workers by underpaying them. BALCA also held that its decision was compelled by the fact that the PERM regulations require that the job application be clearly held open to the broadest possible minimally qualified applicant pool.

Unused Visa Numbers for EB-2s from India and China

April 7th, 2011

The US Visa Office has recently announced that 12,000 unused immigrant visa numbers will be made available to the EB-2 category and for the thousands of seekers of legal permanent residency to the US. Ultimately, these numbers will be assigned to those EB-2 visa applicants from India and China whose priority dates fall within the 2006 calendar year, and 75 percent of these will be granted to those from India.

There are 140,000 immigrant visa numbers available each year to apply for legal permanent residency based on employment, and this process occurs either through consular processing abroad or adjustment of status in the US. Each country is accorded seven percent of that total regardless of its population size and demand from that country. There are five employment-related preference categories and each is granted a certain percentage of that number. The EB-2 (second preference) classification, for positions requiring at least a master’s degree or a bachelor’s degree plus five years of progressive experience, is allocated 28.6 percent of the total visa numbers.

When a visa applicant starts the legal permanent residency process through either a PERM labor certification application or an I-140 immigrant visa petition, that applicant’s filing date is his or her priority date (place in line). Priority dates are assigned within each preference category without regard to the particular country of chargeability, except for countries that expect to exceed the seven percent limit. Applicants who are chargeable to such countries are allocated visa numbers within preference categories.

India and China are expected to exceed the seven percent limitation in fiscal year 2011. This means that even though there are sufficient visa numbers to provide to current EB-2 applicants from countries worldwide (in other words, there will be no backlogs or delays for those applicants to apply for legal permanent residency), those EB-2 applicants from India and China are subject to a cut-off date of 2006. Only those Indians who have a priority date before May 8, 2006, and those Chinese who have priority dates before July 22, 2006, will be able to apply for legal permanent residency.

Fortunately, there is good news on the visa number front in terms of a plethora of unused numbers that can be allocated to the EB-2 category for India and China. The Visa Office has announced that it estimates that 12,000 extra visa numbers will be available for the EB-2 category this year. US law requires that any unused employment-based visa numbers be used without regard to the seven percent per-country limitation. Because the current EB-2 availability for other countries is sufficient to meet demand, the 12,000 numbers will be used by China and India.

In particular, these numbers will be allocated to those approximate 17,400 EB-2s from India and China with a priority date that is within the 2006 calendar year. These were predominantly the applicants who filed to adjust status in July and August 2007 when the Visa Bulletin was current for all countries but whose applications could not be approved because numbers retrogressed during processing. Because most of the 17,400 applicants were Indians (13,200) and the older priority dates are from India, India will most likely get around 75 percent of those numbers.

As emphasized by Jay Solomon, author of “EB-2 Story: India, China and the “Otherwise Unused Employment Visa Numbers – Is the Visa Office Discriminating Against China” published on AILA Infonet (Doc. No. 11040634) and also available at http://www.usimmlaw.com/EB2Story.htm April 2011, there is no discrimination against China in US policy, since it is US law that visa numbers be accorded based on a person’s priority date or place in line, not on a person’s nationality or country of birth. Although it has a practical disproportionate effect on Indian applications, the law neither favors or penalizes any particular country.