On January 30, 2014, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision discussing on-campus recruitment as an additional recruitment step for purposes of labor certification. In Matter of Micron Technology, Inc., the employer submitted a labor certification case for the position of “Senior Design Verification Engineer.” The case was selected for audit. The Certifying Officer (“CO”) denied the case for a number of reasons, many of which were overturned after a request for reconsideration was filed. However, the CO maintained that the employer’s failure to provide “copies of pages of the notification issued or posted by the college’s or university’s placement office, naming the employer and the date it conducted interviews and / or participated in on-campus events” should result in a denial. In reviewing the case, BALCA referenced 20 C.F.R. §656.17(e)(1)(ii)(D), which states that on-campus recruitment “can be documented by providing copies of the notification issued or posted by the college’s or university’s placement office naming the employer and the date it conducted interviews for employment in the occupation.” BALCA determined that this section of the regulation used the word ‘can.’ By doing so, the methods of documenting on-campus recruitment stated in the regulation are a suggestion, not a requirement. Consequently, BALCA found that the employer can document on-campus recruitment through other methods “provided it provides adequate indication that the recruitment method was utilized, and the necessary information was provide to potential U.S. applicants.” This case establishes that employers can document their use of on-campus recruitment as an additional recruitment step through a variety of methods, as long as the employer can prove that the recruitment actually occurred and U.S. applicants were fairly apprised of the position.
BALCA Determines that the Advertising Content Requirements for Newspapers Does not Apply to the Additional Recruitment Steps
On February 11, 2014, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision that discussed whether the content requirements for newspaper advertisements that are completed as part of the mandatory recruitment steps in a labor certification case also apply to the additional recruitment steps that are chosen. The employer submitted a labor certification case for the position of ‘Financial Programmer.’ The case was selected for audit. After reviewing the audit response, the Certifying Officer (“CO”) denied the case on the basis that the employer’s posting on a job search website contained a travel requirement that was not enumerated in the ETA 9089. The employer argued that the CO’s reliance on 20 C.F.R. § 656.17(e) in this denial was misplaced because this provision only applies to advertisements that are placed in newspapers and professional journals. In considering the case, BALCA reviewed the language in 20 C.F.R. § 656.17(e) and found that its requirements apply to “advertisements placed in newspapers of general circulation or in professional journals.” Since a job search website is not within either of these categories, the federal regulations do not support the contention that these advertising requirements apply to job search websites. BALCA also determined that if the Employment and Training Administration (“ETA”) intended for these advertising requirements to apply to the additional recruitment steps, it would have included a statement to this effect in the regulations, like it had done with the requirements for the notice of filing. Finally, BALCA reviewed a previous decision called Matter of Credit Suisse Securities LLC, which found that policy considerations support the idea that all advertisements done through the PERM process must contain the necessary information to inform U.S. workers of the position. However, BALCA stated that it “does not have the authority to read into the regulations an additional requirement not stated therein. Only the ETA has the power to amend the regulations.” Based on this finding, the CO’s decision was overturned. This case provides information on the content requirements for the additional steps conducted as part of a labor certification case and reminds the Department of Labor that it is not permitted to add requirements that are not specifically stated in the regulations.
And you think your I-485 case has pending too long (with a current priority date) ? Try fourteen (14) years ! In a recent court decision, a Federal judge in Virginia ruled that a mandamus action could proceed against the USCIS for its failure to adjudicate an I-485 application filed in 1999. The Federal judge does not have the authority to require the USCIS to approve the case but, the judge can force the USCIS to make a decision. In a position consistent with its current policy of acting without regard to the law, the USCIS fought to have it declared that a Federal judge may not review any of its actions or in this case, inaction. Basically, the USCIS sought to argue that they answered to no one ! Nice to see a Federal Court tell them otherwise.
The Department of State (DOS) has released the March Visa Bulletin and the rapid forward movement has slowed. The DOS also made predictions for future months. These predictions include: further EB3 worldwide (all other countries) may not move forward and in fact, if demand materializes, actually see a retrogression; EB2 India will see no forward movement; EB3 Philippines should expect 3-6 weeks each month. Retrogression remains a serious impediment to legal immigration to the U.S. and needs a legislative solution.
The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision that discussed ‘on the job’ experience in the context of PERM. In Matter of Maxim Integrated Products, Inc., the employer submitted a labor certification for the position of “Electronics Engineer.” This position required either a Master’s degree and no experience or a Bachelor’s degree and 60 months of experience. The Certifying Officer (“CO”) denied the application because it found that the foreign worker’s educational background and experience did not meet the requirements of the position. Specifically, the foreign worker did not obtain his master’s degree until after he was hired by the sponsoring employer and only had 46.5 months of experience at the time of hiring. The employer submitted a request for reconsideration and argued that it should be able to count experience that the foreign worker gained while working for the employer because he held two substantially different roles. The federal regulations provide that the Department of Labor will consider experience gained at the sponsoring employer if this experience was acquired in a “position not substantially comparable” to the sponsored role. The employer argued that the foreign worker was initially hired as an associate member of the technical staff and then was later promoted to be a member of the technical staff. In reviewing the CO’s decision, BALCA stated that the employer failed to delineate the differences between the two roles on the ETA 9089. Consequently, the CO was not alerted to the difference between the positions. Based on this finding, BALCA upheld the denial. Employers who hope to use experience that an employee gained while working for their organization must ensure that the roles are substantially different and must draft the ETA 9089 carefully to ensure that the roles are clearly shown to be dissimilar.
BALCA Determines that Posting a Link on the Employer’s Website to a Job Posting is not a Valid Recruitment Step
On December 30, 2013, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision that discussed appropriate ways to use the employer’s website as an additional form of recruitment. The employer submitted an Application for Permanent Employment Certification for the position of “Assistant Sports Editor.” In the application, the employer stated that it had placed the position on its website as an additional recruitment step. The case was audited and the employer submitted documentation that showed that it had placed a career link on the bottom of its webpage that redirected users to the employer’s profile on hotjobs.com. The CO determined that the employer had not correctly documented that the position had been placed on its website and denied the case. BALCA reviewed the regulations at 20 C.F.R. § 656.17(e), which state that posting a position on the employer’s website “can be documented by providing dated copies of pages from the site that advertise the occupation.” BALCA determined that the documents provided by the employer showed that the position had been posted on hotjobs.com. However, it stated that they were insufficient to show that the position had been listed on the employer’s website because the regulations “contemplate[d] that the employer’s website will include actual ‘pages . . . that advertise the occupation,’ not just a link to a page that is located on a separate job search . . . website.” Consequently, the denial was upheld. This decision confirms that employers should post the job opportunity on the career section of their website and keep dated copies of the posting so that they can ensure that their recruitment steps are considered valid.
The DOS has released the February Visa Bulletin and several categories saw forward movement of approx. 2 months. The anomaly of PRC EB3 being several years ahead of PRC EB2 and the gap widening continued. EB3 for the Philippines saw a nice jump of 2 months. India saw no movement. Retrogression remains a serious problem that needs a legislative fix.
After last week’s post that discussed a recent Board of Alien Labor Certification Appeals (“BALCA”) case that provided zero tolerance for failure to provide required evidence in response to an audit notification, we provide another BALCA decision for comparison. In Matter of Saran Indian Cuisine, BALCA considered whether an employer’s failure to provide supplementary documentation that had been requested as part of a labor certification audit should form the basis of a denial. In this case, the employer submitted an Application for Permanent Employment Certification for the position of “Indian Vegetarian Cook.” The case was audited and the Certifying Officer (“CO”) requested that the employer provide answers to the following questions: (1) are you the owner or do you work for Saran Indian Cuisine, (2) are you aware than an Application for Permanent Employment was filed by your company on behalf of the foreign worker, (3) do you have an opening for an Indian vegetarian cook, and (4) are you sponsoring the foreign national for this position? The employer submitted its response to the audit notification and failed to provide answers to these questions. The CO denied this case because the employer failed to provide this supplementary documentation. In reviewing the case, BALCA affirmed its previous denials in cases where the employer failed to provide required documentation that the federal regulations identify as being necessary to support an attestation made in the application. However, BALCA also noted that an employer’s omission of supplementary documentation should not necessarily result in a denial. BALCA will consider whether “(1) the CO reasonably requested the omitted documentation (i.e. the documentation should have been readily, or at least reasonable available, and tailored to the CO’s review of the application); and (2) the omission of this documentation is material enough to constitute a ‘substantial failure.’” In the instant case, BALCA found that the signed attestations made by the employer on the application were sufficient to demonstrate that it was sponsoring the foreign national. Consequently, the denial was overturned. While it is critical to provide all of the information requested in an audit, this case provides some support for the idea that only a failure to provide required documentation should serve as the basis of a denial.
In the Matter of Siemens Energy & Automation, the Board of Alien Labor Certification Appeals (“BALCA”) reaffirmed its previous holdings and offered zero tolerance to an employer who failed to provide the required documentation in response to an audit notification from the Department of Labor. The employer filed an Application for Permanent Employment Certification for the position of “Senior Commissioning Engineer.” The Certifying Officer (“CO”) issued an audit notification and asked the employer to provide a copy of the prevailing wage determination that it received from the State Workforce Agency. The employer submitted its response and failed to include the prevailing wage determination. The case was denied on this ground. The employer requested reconsideration and argued that the prevailing wage determination had been accidentally left out of the audit response. A copy of the prevailing wage determination was submitted with the request. The CO responded that the prevailing wage determination “was barred . . . because it constitutes evidence not in the record on which the denial was based.” BALCA reviewed the case and determined that a “substantial failure by the employer to provide required documentation will result in that application being denied.” It also referenced previous cases that had been denied based on the employer’s failure to include the requested documentation. Consequently, the denial was upheld. PERM is an exacting process and leaves no room for errors. The Hammond Law Group is always happy to discuss the documentation that must be retained by employers to be used in case of an audit.