BALCA Overturns PERM Denial in Matter of Marlabs

In Matter of Marlabs, Inc. 2013-PER-01125 (Nov. 9, 2017), BALCA reversed the Department of Labor’s (DOL) denial of a PERM labor certification application (ETA 9089). The employer filed an Application for Permanent Employment Certification (“Form 9089”) sponsoring the alien for permanent employment for the position of “Software Developers, Applications,” and required a master’s degree and five years of experience. Also, the employer did note that it would accept any suitable combination of education, training or experience. In response to an audit, the employer had provided a statement that the rejection was due to lack of a bachelor’s degree. The certifying officer (CO) determined that the employer’s statement that the applicant did not meet the minimum requirements was not specific enough to determine whether the employer rejected the applicant for a lawful, job-related reason. The CO concluded “the mere assertion that a candidate does not have a Bachelor’s degree is not sufficient to reject the candidate without additional information” because the employer stated it would accept any suitable combination of education, training, and/or experience.

BALCA disagreed with the CO because it found that there was no reasonable possibility that the applicant met employer’s job requirements based on his resume alone. It cited to several cases noting that it is the employer’s burden to demonstrate that there is no reasonable possibility that an applicant meets the job requirements (Xerox Business Services, LLC, 2013-PER-00092 (Jan. 27, 2017); Gorchev & Gorchev Graphic Design, 1989-INA-00118 (Nov. 29, 1990)(en banc). BALCA also stated that in Select International, Inc. 2011-PER-01478 (Sept. 19, 2012), it held that if the applicant’s resume “indicated” that the applicant lacked the minimum requirements for the job, then the employer could reject the applicant without an interview. In addition, BALCA noted that the same standard applied to major requirements such as a college degree. Lemon Bay Drugs, 2015-PER-00009 (Jan. 12, 2017).

In this case, BALCA stated that the applicant’s resume was silent for a major requirement, i.e., a college degree, and that the applicant had no relevant experience and provided no evidence that he had any training in the job opportunity. Hence, BALCA concluded that the employer rejected the applicant for a lawful, job-related reason.