Recently, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision that considered what type of evidence is needed to demonstrate that a U.S. worker is not qualified for a position being sponsored through labor certification. In Matter of Presto Absorbent Products, Inc., the employer had sponsored the position of “Engineering Manager.” The case was selected for audit and was denied because the Certifying Officer (“CO”) determined that the “employer’s recruitment report made only a generalized statement that U.S. workers did not meet the employer’s minimum requirements . . . Furthermore, the recruitment report did not contain the specific lawful job related reasons for rejection.” The employer’s recruitment report listed that eight resumes had been received for the sponsored role. It stated that the applicants lacked the required experience and “[a]ll applicants were reviewed to determine if they would be able and qualified to perform the duties of the position with a reasonable amount of on-the-job training. All applicants were determined not to have been able and qualified for the position even with a reasonable amount of on-the-job training.” BALCA reviewed the federal regulations and found that they did not “indicate a level of specificity beyond what the employer provided” in regards to disqualifying U.S. workers. BALCA also stated that it is permissible for employers to reject U.S. workers based upon lack of experience. Consequently, the CO’s decision was reversed. This case provides confirmation that U.S. workers may be rejected on the basis that they lack the necessary experience and would not be able to gain this experience through a period of on-the-job training. However, due to the Department of Labor’s recent focus on whether U.S. workers could become qualified for sponsored positions through a period of on-the-job training, the Hammond Law Group suggests that employers may want to provide detailed recruitment reports that specifically discuss why U.S. workers were not qualified and could not gain the necessary qualifications through a period of training.
BALCA Determines that Additional Recruitment Steps are not Bound by the Content Requirements of the Mandatory Recruitment Steps
The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision in which it considered whether the additional recruitment steps that are completed as part of a PERM recruitment effort must meet the content requirements that are imposed on the mandatory recruitment steps. In Matter of Computer Sciences Corporation, the employer submitted a labor certification for the position of “Program Office Senior Manager.” The case was selected for audit and the employer provided documentation of advertisements placed on its website and on a job search website. These advertisements constituted additional recruitment steps for this case and contained the language “willingness to travel; may require work from home office.” The labor certification filed for this position did not list any travel requirement or the opportunity to work from home. The Certifying Officer (“CO”) denied the case on the basis that these additional recruitment steps violated 20 C.F.R. § 656.17(f)(6) because they contained a requirement “which exceed[s] the job requirements or duties listed on the ETA From 9089.” BALCA reviewed the case and stated that “additional recruitment steps include advertisements placed on the employer’s website and on job search websites and, unlike mandatory advertisements, are not bound by the restrictions of [20 C.F.R. §] 656.17(f)(6).” Consequently, BALCA reversed the decision of CO. This case provides welcome clarification that demonstrates that the additional recruitment steps do not have the same content requirements as the mandatory recruitment steps. Nonetheless, the Hammond Law Group suggests that advertisements that are conducted as part of the PERM recruitment effort should not contain requirements or opportunities that are not listed on the Form ETA 9089.
The Department of State (DOS) has released the August Visa Bulletin. EB3 all other countries continued to move forward, India EB3 saw a rather unexpected jump forward whereas PRC EB3 saw retrogression in a manner similar to EB3 Philippines earlier this year. A return to prior levels when the new fiscal year starts in Oct is expceted for both PRC EB3 and Philippines EB3.
The Department of State has released the July Visa bulletin and there were no surprises. As expected the EB3 Philippines became unavailable and will likely remain that way until October. India EB2 did not progress and has likely seen its last forward movement until October. EB3 for all other countries saw another 6 week advance and is moving ever closer to current.
BALCA Upholds Denial of Labor Certifications Where Employer Failed to Provide a Signed Recruitment Report
In Matter of New York City Department of Education, the Board of Alien Labor Certification Appeals (“BALCA”) considered whether a typewritten name could represent an electronic signature. The employer submitted labor certifications for the positions of “Students with Disabilities (Special Education) Teacher.” The cases were audited and the employer provided a recruitment report with the typed name of the employer’s signatory. The cases were denied on the basis that the employer failed to provide a signed recruitment report. The employer argued that the omission was not material and that the regulations do not require a handwritten signature on a recruitment report. In reviewing the requirements under 20 C.F.R. § 656.17(g)(1), BALCA noted that there is no distinction between handwritten and electronic signatures. However, BALCA also stated that there was no evidence that the employer intended the typewritten name to constitute a signature because the employer admitted that there was a “physically-signed copy of the report which was inadvertently omitted from the audit response.” Furthermore, BALCA noted that the typewritten name was not “preceded by the customary ‘/s/’ for electronic signatures, [which] suggests that the [signatory] did not execute or adopt the typed word with the intent to authenticate the document.” Consequently, BALCA upheld the denial of these cases. However, it did state that “there is indeed no indication [in the federal regulations] that recruitment reports, even those delivered by mail, require original signatures.” Through this statement, BALCA seems to indicate that original signatures are not required on recruitment reports. Given the miniscule distinctions made in this case though, the Hammond Law Group suggests that employers provide handwritten signatures on all recruitment reports to avoid the possibility of denials.
The DOL has released updated PERM stats which reveal some interesting tidbits. The number of PERM applications received this year over the same time period in FY 2014 is up over 25%. Of cases where a decision has been reached, less than 10% have been denied. Over 30% of cases are currently in audit review and almost 10% of cases are pending an appeal. Although it seems like everyone claims to have been filed under EB2, almost 50% of cases were filed under EB3 standards.
Ever wonder how the priority date cut-offs are established each month and been curious how the priority dates can fluctuate so drastically as if they are mere sailboats adrift in the wind ? You are not alone. Recently, a Federal Court of Appeals raised serious questions about Department of State procedures used to establish the dates. The Appellate Court closed their opinion by saying that it is not deciding at this point whether or not the Department of State is acting illegally; it is only saying that “the consequences of State’s current operations are quite consistent with [the Plaintiff’s] allegations that [the Department of State] has inadequately heeded [section] 203(e)(1)’s priority principle”. Further proceedings were ordered and this case is worth keeping an eye on.
On April 9, 2015, the Administrative Appeals Office (“AAO”) issued a decision in which it discussed the meaning of “doing business” for EB-1 petitions. In Matter of Leacheng International, Inc., the Petitioner filed an Immigrant Petition for Alien Worker in the classification of multinational manager or executive. To qualify for this classification, it must be established that a petitioner has been doing business for at least one year. Doing business is defined as the “regular, systematic, and continuous provision of goods and / or services by a firm, corporation, or other entity.” See 8 C.F.R. § 204.5(j)(2). The Petitioner is an affiliate of an entity based out of Hong Kong. Both organizations are owned by a Chinese parent company. The Petitioner was responsible for importing and selling the parent company’s products in the U.S. Starting in 2012, the Petitioner began “providing marketing, sales, and shipping services in the United States pursuant to a service agreement with its Hong Kong affiliate.” The case was initially denied on the basis that the evidence “does not indicate ‘doing business’ with independent corporations or entities’ for a full year preceding the filing of the petition, but rather ‘only demonstrate[s] the shipment of goods from the foreign company to the U.S. company.” In reviewing the case, the AAO determined that there was nothing in the regulations that requires that a “petitioner for a multinational manager or executive must provide goods or services to an unaffiliated third party.” Rather, a petitioner may prove that it is doing business “by demonstrating that it is providing goods and / or services in a regular, systematic, and continuous manner to related companies within its multinational organization.” In reviewing the evidence, the AAO instructed that the totality of the record should be reviewed and “the fact that a petitioner serves as an agent, representative, or liaison between a related foreign entity and its United States customers does not preclude a finding that it is doing business.” This case provides important information on what types of activities will qualify as “doing business” for purposes of an EB-1 filing.