Many employers have been frustrated by the DOL’s decision to deny labor certifications where an employer used the language of “competitive salary” or “depends on experience” in portions of their recruitment. The Board of Alien Labor Certification Appeals (“BALCA”) provided a decision in Matter of TEK Services LLC that may assist employers in fighting against these unwarranted denials. In this case, the employer submitted a labor certification on behalf of a “Computer Systems Analyst.” As part of its recruitment effort, the employer stated that the position offered a “competitive salary” in the job order and on the employer’s website. The Certifying Officer (“CO”) denied the case based upon 20 C.F.R. § 656.24(b)(2) and noted that the advertisements placed by the employer do “not adequately apprise U.S. workers of the nature of the wage . . . also can dissuade some U.S. workers from applying for the job opportunity, and mislead others.” In reviewing 20 C.F.R. § 656.24(b)(2), BALCA noted that it provides the basis upon which a labor certification can be granted or denied, including how the CO should consider the employer’s compliance with the attestation that no qualified, available, and willing U.S. worker was applied. However, it does not list any requirement in regards to salary. Consequently, BALCA “rejected the CO’s effort to utilize 20 C.F.R. § 656.24(b)(2) as a catch-all denial ground encompassing any employer action that the CO deems problematic, despite citing no specific regulatory requirement that the employer has violated.” The Hammond Law Group applauds BALCA for reminding the DOL that it cannot make up new standards that have no basis in the federal regulations.
The Department of State (DOS) released the December Visa Bulletin last week. The Dates for Filing chart remained unchanged. The Final Action date chart revealed no forward movement for EB3 all others and small movement for all other categories. The lack of significant forward movement was disappointing but, the really bad news came in the DOS’s projections for coming months. The DOS is expecting the EB1 category for India and China to retrogress. The DOS also expects the EB2 category for the Philippines, Mexico, and all others to retrogress in the summer if not sooner. They also predict continued holds or slow movement for EB3 across the board. Retrogression relief in the form of new legislation is sorely needed but, its prospects are unknown.
The Board of Alien Labor Certification Appeals (BALCA) recently ordered a PERM Labor Certification application to be certified following the Certifying Officer’s denial due to a salary range mismatch between the PERM application and the Notice of Filing.
In re Institute for Environmental Health, Inc., 2013-PERM-01963 (BALCA 2016) involved the classic PERM situation where a discrepancy between what was listed on the 9089 and prefilling recruitment/notice documentation leads to a denial. The employer in this case attested on the 9089 that the prevailing wage was $25,022.40 and that the offered wage was $25,023. However, on the notice of filing the employer listed a salary range of $25,023 to $34,837.
Given the exacting requirements of the PERM process lawyers generally aim to have their recruitment mirror the requirements listed on the 9089. The so called “matchy-matchy” doctrine has aided many lawyers navigating tricky PERM waters. In this case, BALCA ruled that the regulations is “clear and unambiguous” on allowing a salary range in the notice of filing even though the 9089 only listed the offered wage.
I suspect the Board’s action (three years after the initial denial) saving this PERM from floundering was well received by the employer. I also suspect that when counsel of record files another PERM case they will match their 9089 and recruitment / notices.
Even if one is ultimately correct and wins on appeal, knowing how cases are handled by DOL officers will save employers heartaches and legal fees. For guidance on your PERM application, contact Hammond Law Group.
The Department of Labor (“DOL”) recently released a FAQ on the information that should be included in recruitment reports. Recruitment reports are required to be prepared as part of the process of preparing a labor certification to be filed. The DOL specified that a recruitment report must include: (1) the total number of U.S. applicants who applied for the position, (2) the total number of U.S. applicants hired for the position, and (3) the total number of U.S. applicants who were rejected based upon a lawful job-related reason. The lawful job-related reasons for rejecting U.S. workers should be categorized. The DOL further specified that employers should list the total number of U.S. applicants who were interviewed and a list of the names of U.S. workers who were rejected under each category. Finally, if an applicant was rejected under multiple categories, the category that he is listed under must state the multiple bases of rejection. For instance, if a candidate was rejected because he did not have the necessary education and did not have the required total years of experience, he should fall under a category titled “candidates lacking the required education and experience.” The DOL specified that this type of categorization will “enable the certifying officer to clearly establish the reason for disqualification of each U.S. worker.”
BALCA Reverses Denial where Employer Failed to State Geographic Area of Employment on Website Posting
The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether a website advertisement that did not list the location of employment failed to apprise U.S. workers of the nature of the role. In Matter of VLS It Consulting, Inc., the employer submitted a labor certification for the position of “Computer Systems Manager/ Training Division Manager.” The case was audited and denied on the basis that the website advertisement did not list the geographic area of employment. The Certifying Officer argued that the lack of worksite location information violated 20 C.F.R. §656.17(f)(4). The employer appealed and argued that its corporate address was ‘listed on the homepage and the ‘contact us’ portion of the website.” BALCA reviewed the case and reminded the Department of Labor that 20 C.F.R. §656.17(f)(4) only applies to advertisements placed in newspapers of general circulation. Thus, this statutory section could not serve as a basis for denial. Furthermore, BALCA determined that since the employer’s address was listed on other sections of its website, no U.S. worker was misinformed of the nature of the job opportunity. BALCA reiterated that “when relevant information on a website advertisement is a ‘simple mouse click’ away, denial of certification is not supported by the regulations.” While this case does support the idea that the location of employment is not required to be listed on website advertisements, the Hammond Law Group suggests that all advertisements include the location of employment to avoid improper denials by the Department of Labor.
As part of President Obama’s call to action on immigration (in late 2014), an effort to modernize the PERM program was initiated and most US employers were ecstatic; hoping, that the “waste of money Sunday print ads” would become a relic of the past however, earlier this week, the DOL announced that they would not be able to complete any rule-making prior to President Obama leaving office thus making the modernization project dead for now. Guess 2 years wasn’t enough time to figure out that the internet is here to stay and there are better ways to recruit workers than newspaper ads. Hopefully, the next Administration will continue this task (and faster).
Late last week, the Department of State (DOS) released the October Visa bulletin. This visa bulletin was particularly anticipated since it was the first bulletin of the new fiscal year. Unfortunately, it did not deliver much in the way of positive news. On the positive side, it did wipe out much of the “short-term” retrogression that raised its head in the EB1 and EB2 categories in Aug and Sept. but, the “Dates for Filing Chart” which is viewed as a predictor of movement for the upcoming fiscal year, fell short of expectations. A comparison of the Dates for Filing chart from Oct 2015, show further retrogression in the EB2 categories for China and India and no movement forward for India EB3. EB3 for the Philippines and all other countries are the only 2 categories with notable advancement. A legislative fix remains sorely needed but, with the ‘build a fence” radicals in charge of both the Senate and the House, no relief is in sight.
The Department of State (DOS) has released the September Visa Bulletin. The Dates for Filing chart remained unchanged however, once again, the USCIS has determined not to honor the dates for I-485 filings. The Final Action Dates chart was largely unchanged however, the EB3 category for the Philippines, India and all other countries showed slight forward movement. The DOS also announced that it has made the final calculation for FY 2016 preference limits and the Employment based limit was 140,338 with the per country limit set at 25,644. We are expecting better news in the October bulletin however, legislative relief for retrogression is baldy needed.