Labor Cert Decisions on Rejections of Job Applicants and Minimum Requirements, etc.

Some recent decisions by the labor certification appeals board (BALCA) address various legal issues ranging from wage and signature discrepancies, screening and rejection of job applicants, and actual minimum requirements.   They are summarized below:

Labor certification denied when actual wage is higher than the wage posted:  The Board held that posting a wage lower than the actual wage mischaracterized the position such that the job was not clearly open to US workers. Here, the employer posted the wage as $8.00 per hour but, in fact, workers get $8.00 an hour for the first two months and then $8.25 for the remaining ten months of the year.   (Matter of Norman W. Fries, Inc., 10/28/16)

Labor Application and Recruitment Report had Different Signatories:   Different employer representatives can sign the labor application ETA Form 9089 and the recruiting report, according to the Board. This is not a reason for denial. (Matter of HTC Global Services, Inc., 10/28/16)

Employer May Reject Applicants Without An Interview:  Although an employer normally should interview all applicants that facially appear to have met the minimum job requirements.  When a job applicant clearly does not the skills or experience to perform certain complex duties of a job, the employer does not have a duty to interview the job applicant.  Here the job applicant does not have experience in "Term and UL GAAP, or in statutory or tax accounting, or in making presentations to senior level actuaries and business professionals."  The Board held that  expertise in these areas cannot be acquired by reasonable on-the-job training. (Matter of Genworth North America Corporation, 10/28/16) 

Employer's Rejection of Job Applicants Improper Without Support:   On the other hand, where an employer rejected 60 job applicants based solely on a review of the resume, BALCA finds that the employer did not meet its burden of proving that some of the applicants did not meet the minimum requirements or qualify for further consideration.  The employer in this case failed to articulate the reasons why four applicants did not meet the minimum requirements of the position. (Matter of HSBC Bank USA, N.A., 10/28/16)

Actual Minimum Requirements of Bachelor's Degree and 24-Month Experience Can be Substituted:  An Employer may accept any equally suitable combination of training and experience in lieu of a Bachelor’s degree and 24 months of experience, according to BALCA.    Here, the Employer demonstrated, through a credentials evaluation that the foreign worker met its alternative requirement of training and experience equivalent to a bachelor‟s degree in mechanical engineering and 24 months experience. The denial of labor certification was reversed.  (Matter of Intent Design, Ltd, 10/28/16)  

Relocation Requirement Not A Basis For Labor Cert Denial

Since the dot.com era, the IT consulting business has firmly found its place in the corporate world. Rather than hiring permanent employees, companies prefer to hire "contractors" or "consultants" to perform certain IT functions for both cost control and efficiency.  The nature of the IT consulting business often requires the consultants to work at different locations for various periods of time. Such requirement introduced another level of complication in the permanent foreign labor application filed on behalf of these IT consultants. A certified labor application is normally required before an employer may petition for a foreign worker to work permanently in the United States.

Recently, such a labor application was denied by the Certifying Officer at DOL because the employer failed to list the relocation requirement in the recruiting documents and also on the PERM labor application (ETA Form 9089) for a position with a primary work site "and various unanticipated locations throughout the U.S."

The Appeals Board (BALCA) reversed the denial and granted certification on appeal.  In this case (Matter of Infosys, 2016-PER-00074), the employer included a requirement for travel in the labor application, and argued that there is no major distinction between travel and relocation.  The employer relied on a 1994 memo of DOL known as the "Farmer Memo" because it was issued by Barbara Ann Farmer, Administrator for Regional Management at the time.

The Appeals Board agreed with the employer that it was sufficient to mention about travel in the application because relocation can be inferred from the travel requirement and also the job description.  By virtue of the fact that the job requires the employee to work at various unanticipated locations throughout the U.S.,  potential job applicants should expect that relocation to other parts of the country is required in order to perform the job duties.  The Certifying Officer also relied on some previous cases involving the same issue which were denied by the Board. These cases, however, are distinguishable from the instant case, according to the Board.  These cases, for example, Patel Consultants Corp., 2011-PER-535 (Feb. 27, 2012), were denied because of direct inconsistencies between the language in the advertising and the PERM labor application.

The Board also granted certification based on the principles of fundamental fairness.  The Farmer memo allowed employers to file the labor application at the local office where the employer's headquarter office is located in situations where the employee is required to work at various locations in the U.S.  The Farmer does not distinguish between travel and relocation.  There has been no other guidance from the Labor Department despite repeated requests from the organized immigration bar on this particular issue.

Further, the petitioner in the case (and also many other employers) has used the same approach and language in many other labor applications which have been approved by DOL.  The Board found the sudden change in the adjudication standard without prior notice to the employers and the public fundamentally unfair.

BALCA Grants Labor Certification Despite $1.00/Year Listed In Job Order

In a recent decision, BALCA overturns the CO's denial of a PERM labor application after finding, once again, that the State Job Order (JO) is not subject to the general advertising requirements under 20 C.F.R. §656.17(f). Matter of Bahwan Cybertek Inc., 2012-PER-01147 (2/18/16)

20 C.F.R. § 656.17(f) provides that advertisements placed in newspapers of general circulation or in professional journals must not contain wages or terms and conditions of employment that are less favorable than those offered to the foreign worker.

In Bahwan Cybertek Inc., the employer's policy is not to advertise the salaries in job postings. However, due to technical requirements of the State JO's website, the employer entered $1.00/Year as the salary for its job opening for a Project Manger.  However, the employer also added "Competitive Salary. Will be discussed with the candidate" underneath.  Nevertheless, CO denied certification based on 20 C.F.R. § 656.17(f).  

BALCA reversed, noting that the regulation, by its text, does not apply to job orders.  In fact, in an earlier case decided on January 1, 2016, BALCA already held that 20 CFR §656.17(f) is not applicable to SWA Job Orders. Matter of Pinnacle Technical Resources Inc., 2012-PER-00130 (January 1, 2016). 

BALCA also opined that U.S. workers were not discouraged from applying for the position, as argued by the CO.  To the extent that this is clearly a senior level professional position, reasonable job seekers would not believe that the salary is only $1.00 per year. 

It should be noted that in another en banc decision by BALCA, Symantec Corporation, 2011-PER-01856 (Jul. 30, 2014), the Board already held that the additional steps of recruitment for professional jobs need not have to comply with the content requirements under 20 C.F.R. § 656.17(f). 

This series of Board cases make it clear that, for PERM recruiting purposes, only the mandatory print advertisements and the Notice of Filing must comply with the content or "specific job opportunity" requirements pursuant to 20 C.F.R. § 656.17(f).  In Job Orders and other additional recruiting steps, employers only need to present evidence that the "occupation" involved has been announced.  This legal distinction is critical.   

Labor Cert Board Exhibits Reason Again in Recent Decisions

In the Matter of JOHNS HOPKINS HEALTH SYSTEM CORPORATION, 2012-PER-01751 (Feb. 2, 2016), the Board ordered reissuance of Labor Certification with new validity period after the Employer established that it had never received the initial certification. In doing so, the Board excused the late filing of Employer's motion in light of the egregious factor involved, i.e., CO's failure to issue Certification per regulation.

In the Matter of KIM & BAE, P.C., 2012-PER-01067 (Feb. 2, 2016), the Board granted Employer's Motion to Reconsider so that the CO may consider the resumes submitted for the permanent position. Due to a formatting error in the CO's Audit Notice, the Employer failed to submit the resumes in it's audit response but included them in the request for reconsideration.  The Board found the formatting error caused the Employer to miss the directive regarding submission of resumes. 

For more recent decisions by the Labor Cert Appeal Board, review these other decisions

BALCA Emphasizes Substance Over Form In Recent Decisions

BALCA has shifted emphasis to substance over form in several recent labor application decisions.

In one case, the Certifying Officer denied labor application because the employer name in the ETA 9089 labor application was different from the one in the State Job Order.   BALCA reversed the denial and granted certification, holding that a minor typo error in the employer name on the State Job Order did not cause confusion to potential applications regarding the identity of the employer or otherwise undermine the employer's attestation.  Matter of SWDWII LLC, 2012-PER-00887 (Jan. 29, 2016).

In another decision, Matter of: UBS Securities LLC, 2012-PER-00845 (Jan. 8, 2016), BALCA reversed the denial of a labor application which had an alternative requirement of a master's degree and 36 years of experience.  The 36-year requirement was used as the basis for denial by the CO.  On appeal, the employer argued that the denial was not fair to the extent that the instruction of the form conflicts the question in the form regarding alternative requirements.   While the question in the form asks for the "number of years of [alternative work] experience," the instructions for the question asks employer to enter the "number of months" of experience.  Such a contradiction makes it impossible for the employer to answer the question correctly.  Hence, the Board found that enforcing the regulation to deny is "fundamentally unfair" under these circumstances. The decision is consistent with the Board's prior decision in HealthAmerica, 2006-PER-1 (July 18, 2006) (en banc), where the Board held that denying an application for a mere typographical error violates fundamental fairness.

Finally in a third decision, the Board granted certification in a case where the State Job Order contains a different job description than the one listed in the labor application. This decision was based more on technical grounds.  The board held that the regulation governing general advertisements do not apply to State Job Orders. Matter of Pinnacle Technical Resources Inc., 2012-PER-00130 (January 1, 2016). 

Labor Certification Granted Despite Different Job Description in SWA Job Order

Any employer or employee who has dealt with labor application issues understand the importance of an accurate job description.  Imagine you posted a State job order that has a different job description than what you entered in the ETA 9089 labor application. Would it cause a denial of the labor application? 

According to a recent decision by the Board of Alien Labor Certification Appeals (BALCA), such a discrepancy does not justify a denial.  Matter of Pinnacle Technical Resources Inc., 2012-PER-00130 (January 1, 2016). 

In Pinnacle, the employer filed a foreign labor application for the position of a "Technical Recruiter." The job description in the PERM labor application is as follows:

Recruit qualified IT professionals across platforms and skills backgrounds for multiple positions; Screen candidates for application development. Interview candidates and perform orientation/training of all new candidates. Maintain client contacts database.

In the State job order, the job description is listed as:

Job Description Analyze, coordinate payroll and process benefits, new hire process, employment verification, unemployment claims, time entry/time sheet management. Manage Visa/Green Card Application process, legal issues compliance (ADA, EEO, FMLA, OSHA, etc.). Work directly with Director of Operations.

The Certifying Officer (CO) denied the petition because the State job order "contained duties that exceeded the job duties listed on the ETA Form 9089," citing the regulation at 20 C.F.R. § 656.17(f) as authority for the denial.  

BALCA reversed the denial because § 656.17(f)(6) applies only to advertisements placed in newspapers or in professional journals but not to SWA job orders.  In its decision, the Board cited Symantec Corp., 2011-PER-1856 (July 30, 2014) (en banc) and also Fidelus Technologies, 2011-PER-1635 (June 11, 2015) (applying Symantec to SWA job orders).  Newspaper ads and SWA job orders are two different recruiting requirements for PERM foreign labor application, and the Pinnacle Board decision decidedly drew a distinction between them.

Appeal Board Denies Labor Application for Director of Closely HeldCorporation

Before a U.S. employer may petition a foreign worker for a permanent position, it must obtain a labor certification from the Labor Department to show that there are no able, willing, and available U.S. employees to take the job. During the labor certification process, the employer has to prove that there exists a bona fide job opportunity open to U.S. workers.

If the foreign worker happens to be the director of the company actively managing the operations, owns 50% of the company, and is also married to other co-owner, can there still be a bona fide job opportunity?  The answer is negative, according to the Board of Alien Labor Certification Appeals (BALCA) in a recent decision.

On 25 September 2015, BALCA issued a decision affirming the denial of certification in a case with the these facts.  In the Matter of Step by Step Day Care LLC, the employer filed a permanent foreign labor application  for the position of “Daycare Center Director”.  The employer is a small closely-held corporation, in which the foreign worker has an ownership interest and is also the wife of the other co-owner.

The Certifying Officer (CO) did not believe that there was a genuine recruitment process given the fact that the beneficiary employee controlled the company and the hiring process as a co-owner and also director of the company.  The employer responded by arguing that, although the foreign worker as the director was usually in charge of the hiring process, she did not participate in this particular recruiting process. Instead, she delegated the responsibility to a subordinate employee.

However, BALCA was not convinced that there was a bona fide job opportunity.  To the extent that the subordinate employee was under the supervision of the foreign employee and got paid by her, the foreign employee was "in a position to control or influence hiring decisions" in the recruiting process. Consequently, any decisions made by the subordinate employee could not have been objective.

In its analysis, BALCA cited to 20 C.F.R. § 657.17(c)(8), which requires the employer to attest that "[t]he job opportunity has been and is clearly open to any U.S. worker" and 20 C.F.R. § 656.17(l), which provides, "[i]f the employer is a closely held corporation or partnership in which the alien has an ownership interest, or if there is a familial relationship between the stockholders, corporate officers, incorporators, or partners, and the alien, or if the alien is one of a small number of employees, the employer in the event of an audit must be able to demonstrate the existence of a bona fide job opportunity, i.e., the job is available to all U.S. workers...."

Here, the Board, after considering the totality of the circumstances, held that Step by Step LLC had not met its burden of overcoming the presumption that the foreign worker had influence and control over the job opportunity.  Nor did the employer demonstrate the existence of a job opportunity that was available to all U.S. workers. As such, BALCA affirmed the CO's denial of labor certification.

In general, where the foreign worker has an ownership interest in or a familial relationship with the owners or management of the petitioning company, it would be difficult to prove a bona fide job opportunity unless there exists an independent management board or third party which can make hiring decisions.  

Labor application ads must include home office option

Modern jobs often allow employees to work from home or telecommute for various reasons.  Sometimes it is to accommodate an employee’s family needs. Other times, it is to ensure that employees stay close to customers for better services and response time.  For example, a sales professional may work from home and travel to various client sites within a region.  Technological gadgets such as smartphones and computers make telecommuting and offsite employment possible.  However, in the context of labor application, employers must include any telecommuting or home office option in the advertisements, according to a recent BALCA decision, Matter of Siemens Water Technologies Corp., 2011-PER-00955 (07/23/2013). 

A PERM foreign labor certification is required in most situations before an employer may employ a foreign worker permanently in the United States.  As part of the labor certification process, an employer must place advertisements in various media to apprise U.S. workers of the job opportunity.  Exactly what needs to be included in the ads has not been clearly defined in the labor certification regulation.  One of the requirements is that ads must not “contain wages or terms and conditions of employment that are less favorable than those offered to the alien.” 20 CFR § 656.17(f)(7). 

In Matter of Siemens, the employer filed a labor application on behalf of a foreign national for the position of a Field Service Engineer(FSE).  The employer’s company headquarter is located in Houston, TX. However, the FSE lives in Woodlands, TX, and is allowed to work from home.  Further, he must also travel to various client sites both in the U.S. as well as in other countries.  During the labor application process, the employer therefore recruited for the position in Woodlands, including placing ads in various media.  The ads listed Houston as the work location but did not include the home office arrangement as an option.  Consequently the CO denied the application.

The employer appealed to BALCA and argued that the regulation does not require the disclosure that the work location is a home office.  Further, the employer argued that the ads did not contain any terms or conditions that are less favorable than those offered to the foreign worker.  Finally, the employer also relied on the minutes of one of the DOL Stakeholder Liaison Meetings, which specifically allowed recruiting in the area of actual employment.

However, BALCA upheld the denial of labor application, explaining that the minutes cited by the employer only supports recruiting in the area of actual employment, i.e., Woodlands, TX, but do not provide guidance regarding what geographic location should be included in the ads.  According to BALCA, listing of the job location as Houston, TX, in the ads is actually a condition less favorable than those offered to the foreign worker.  The reason is that a potential job seeker could think that he or she is restricted to working in Houston.  Since the home office option is omitted in the ads, the ads failed to inform potential job seekers that they could also work from home and other areas.   

Under Siemens, employers must include any home office option in labor application ads. In fact, since the omission of employment conditions has been interpreted on multiple occasions by BALCA as being “unfavorable” or “restrictive” to the U.S. workers, it is wise to include all employment conditions - especially those relating to travel and work location - in the ads.  These conditions may include home office, telecommuting, travel or relocation to client clients, etc.

PERM Ads and Notice of Filing do not have to include language requirement

To meet the regulatory requirements of a permanent foreign labor application (PERM application), an employer does not need to include the language requirement of the job in the pre-filing advertisements and the Notice of Filing, according to a recent decision of the Board of Alien Labor Certification Appeals (BALCA). Matter of Architectural Stone Accents, Inc., 2011-PER-02719 (July 3, 2013).  The Board held that employers only need to include enough details in the ads to apprise U.S. workers of the job opportunity.

Before hiring a foreign national to fill a permanent job opening, a U.S. employer must first test the job market through the labor certification process. To test the job market, the employer must conduct a series of pre-filing recruiting activities including placing advertisements in newspapers and posting a notice at the place of employment. The labor application will only be certified if there is no qualified U.S. worker who is able, ready and willing to take the job.

How much information should be included in the advertisements and Notice of Filing has been a subject of much controversy. The regulation requires that the advertisements must “[p]rovide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought.” 8 CFR § 656.17(f)(3). But it is unclear how much details are required to sufficiently apprise U.S. workers of the job opportunity.

In Matter of Architectural Stone Accents, the employer filed a labor application to sponsor a foreign national in the United states for the permanent professional position of “Production Supervisor”. In the ETA 9089 labor application, the employer specified that the ability to speak Spanish is a job requirement for this position. However, the employer failed to include this language requirement in the Notice of Filing. Consequently, the Certifying Officer (CO) denied certification because the Notice of Filing posted by the employer is deficient pursuant to 20 C.F.R. § 656.17(f)(3). The employer asked for reconsideration, arguing that the regulation does not require that the language requirement be included. Further, omission of the language requirement should actually have encouraged more job applicants to apply. However, the CO declined to reverse the denial. The employer appealed to BALCA.

On appeal, BALCA considered the issue of whether or not the language requirement must be included in the Notice of Filing (and also PERM Ads).  Initially the Board found that the NOF serves two purposes - to recruit U.S. workers, and also to provide a method for others employees and interested persons to provide information to the CO about an employer’s application. Although the requirements (relating to the contents) are similar for both the job advertisements and NOF, there are some slight differences between the two. For example, the rate of pay must be included in the NOF. 20 C.F.R. § 656.10(d).

The Board held Section 656.17(f)(3) does not require that all job requirements be listed on an advertisement. Specifically, the regulation only requires that an advertisement provide enough details “to apprise the U.S. workers of the job opportunity for which certification is sought.” In fact, in a FAQ provided by the Department of Labor’s Employment and Training Administration, it states that “[t]he regulation does not require employers to run advertisements enumerating every job duty, job requirement, and condition of employment. As long as the employer can demonstrate a logical nexus between the advertisement and the position listed on the employer's application, the employer will meet the requirement of apprising applicants of the job opportunity.”

Hence, BALCA concluded that PERM advertisements and NOF must only be specific enough to apprise the U.S. workers of the job opportunity.  Neither Section 656.10 nor Section 656.17(f) requires that the NOF list every job requirement. In the instant case, the Board examined the NOF and held that the omission of the Spanish language requirement does not violate the regulations, as “overall the text of the NOF was sufficient to apprise U.S. workers of the job opportunity.”    Therefore, the Board reversed the CO’s decision and certified the employer’s labor application. 

In sum, PERM ads and Notice of Filing generally do not have to include the language requirement of the position.  However, it is conceivable that this general rule does not apply in certain situations.  For example, if an employer is hiring an interpreter or translator, it is expected that the specific language proficiency be included.  Otherwise, the job descriptions would not be specific enough to apprise potential U.S. job seekers of the job opportunity.  

LiveJournal Tags: PERM Ads,Labor Application,labor certification,BALCA,Employment based-immigration,employment visa

BALCA Upholds Labor Certification Denial Due to Lack of Travel Language in Notice of Filing

"Employer has  violated  20 C.F.R. §  656.17(f)(4) by including different geographical locations in the ETA Form 9089  than what was stated in their advertisements.    Employer’s ETA Form 9089 described the geographic area as Santa Clara, California, and,  'various unanticipated locations throughout the U.S.,' while the advertisement only stated Santa Clara.  Employer argues that the position did not require travel, but language was included in ETA Form 9089 to 'allow for participation in events outside of the employer’s offices.'  Furthermore, they stated that 'travel is an ancillary and purely optional requirement.'  However, this still violated §  656.17(f)(4). U.S. workers viewed  a different  geographic location than that listed on the ETA Form 9089.   Thus, the advertisement  did not clearly apprise U.S. workers of the geographic location for the job opportunity, even if the ETA Form 9089 did not mean that travel was required.    If Employer had informed U.S. workers that the job included 'various unanticipated locations throughout the U.S.,'  more U.S. workers may very well have applied.  Some potential U.S. applicants may have been interested in the option of various locations, or the option to travel.   Therefore, it was appropriate for the CO to deny certification of the application."  (Matter of Sun Microsystems, 3/29/12)

BALCA Upholds Denial of Labor Certification Where Travel Requirements/Various Job Locations Not in Ads

"Employer has violated 20 C.F.R. § 656.17(f)(3) by not specifically  apprising U.S. workers of the job opportunity.    Employer’s ETA Form 9089 included 'various unanticipated Deloitte locations and client sites nationally,' while the advertisement in The Philadelphia Inquirer did not contain what the CO termed 'travel requirements.'  Employer argues this language did not indicate travel requirements, but rather meant the position could be available in multiple geographic locations nationwide.  Regardless of whether the language indicated travel requirements or geographic locations,  Section 656.17(f)(3) was violated.  U.S. workers viewed  a different job description than  that listed on the ETA Form 9089.   Thus, the advertisement was not specific enough to apprise the U.S. worker of the job offered to the foreign worker.  If Employer had informed U.S. workers of the same job description which was provided to the foreign worker, more U.S. workers may very well have applied.    Some qualified potential U.S. applicants may have been interested in a company which could place them in different geographic locations, if that is what the language intended to convey.  Therefore, it was appropriate for the CO to deny certification of the application."  (Matter of Deloitte FAS, 3/29/12)