On November 1, 2013, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision that discussed the efforts that employers must make when they are screening resumes received for a position that is being sponsored through labor certification. In Matter of Twins, Inc. d/ b/ a Twins Hardware Floors, the employer sponsored the position of Hardwood Floor Installer. The case was audited and the Certifying Officer (“CO”) requested copies of the resumes received. The CO found that three applicants were rejected for reasons that were not job-related. Specifically, the position required two years of experience in hardwood flooring installation and the CO argued that three of the applicants possessed sufficient related experience in construction to be qualified for this position. In response to this argument, the employer offered letters that were sent to these applicants that requested evidence that they had the necessary experience for this role. The letters stated that if the applicant failed to respond in ten days, the employer would assume that the applicant was no longer interested in the opportunity. In reviewing the case, BALCA noted that “if the worker, by education, training, experience, or a combination thereof, is able to perform in the normally accepted manner the duties involved in the occupation,” a determination should be made that a qualified U.S. worker who is “able, willing, qualified, and available for and at the place of the job opportunity” exists. Since the applicants’ resumes indicated that they might meet the employer’s requirements, BALCA found that the “employer has a duty to make a further inquiry, by interview or other means, into whether the applicant meets all of the actual requirements.” BALCA stated that the letters sent by the employer to inquire about the applicants skills were insufficient because any response would not have shown the employer whether the applicants could become qualified for the position “within a reasonable period of on-the-job training.” This case provides important guidelines in regards to the efforts that employers must make when they receive a resume from a candidate who appears to be qualified for the sponsored position.
On November 1, 2013, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision that provided information on the factors that the Department of Labor considers in determining what constitutes a professional or trade organization. In Matter of Prithvi Information Solutions LLC, the employer sponsored the position of Account Manager. As part of its recruitment efforts, the employer placed a job advertisement in Dice.com. The Certifying Officer denied the case because it determined that Dice.com was a job search website, not a trade or professional organization. In reviewing the case, BALCA stated that there were three elements that showed that Dice.com was not a trade or professional organization, including: (1) professional or trade organizations have names that are often descriptive abbreviations (such as IEEE for the Institute of Electrical and Electronics Engineers), (2) these organizations often have news sections with original news content, and (3) professional or trade organizations have event sections on their website that reflect academic and research meetings. BALCA determined that Dice.com was not a professional or trade organization because its name was not a descriptive abbreviation, its news section only provided links to outside news sources and career advice, and its event section only reflected career fairs. BALCA also stated that the list of factors was not exhaustive and no one factor should be determinative. This case provides important information to employers about how to properly identify a trade or professional organization for purposes of labor certification.
The Department of State has released the December Visa Bulletin and EB2 India has retrogressed to 2004 while the world-wide EB3 category jumped to Oct 2011. The bulletin predicted no forward movement for India EB2 or EB3 in the coming months. These horrific wait times cry out for a legislative solution.
On September 26, 2013, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision that discussed the effort that U.S. employers must make in recruiting U.S. workers in the labor certification process. The employer sponsored the position of “Accountant, Level I” and received notification from the Certifying Officer (“CO”) that the case had been selected for supervised recruitment. After completing the necessary recruitment steps, the employer submitted its recruitment report, which stated that all U.S. applicants did not meet the minimum qualifications or did not respond to interview invitations. The CO denied the labor certification because it found that the employer had “failed to use good-faith efforts to reach [U.S.] applicants.” Specifically, the employer rejected candidates whose certified mail interview invitations “were returned as undeliverable, despite the fact that the employer had an alternate means of contacting these . . . U.S. workers.” BALCA reviewed the Immigration and Nationality Act and reiterated that one of its goals is to “prevent foreign workers from obtaining permanent employment in the United States unless there are not sufficient U.S. workers who are able, willing, qualified, and available to perform the work.” It found that the employer never made any effort to contact the U.S. applicants who failed to respond through an alternative method. In addition, it neglected to track the interview invitations through certified mail. If it had, it would have found that these applicants did not receive the invitation until four to seven weeks after the interview was scheduled to have occurred. Thus, BALCA determined that the employer failed to make a good faith effort to recruit these U.S. workers and denied this case. When an employer is reviewing U.S. applicants for a position that is being sponsored through labor certification, it should be careful to try to contact these individuals through all available contact methods and document the efforts made to reach these candidates.
The Department of State has released the November Visa Bulletin and the results are disappointing. India EB2 and EB3 and Philippines EB3 showed no movement. Worldwide EB3 which had moved rapidly over the summer slowed to a mere 3 months forward movement. The need for retrogression relief remains critical.
The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision that discussed the evidence required to demonstrate that an employer posted a position on their website as part of its recruitment efforts for labor certification. In Matter of DGN Technologies, Inc., the employer sponsored the position of “Computer and Information Systems Manager.” The case was audited and the employer responded with documentation that included a job posting on its website with an illegible handwritten notation of the date of posting and a signed recruitment report. The Certifying Officer denied the case on the basis that the employer failed to provide adequate documentation to show that the position was posted on its website as required by the federal regulations. BALCA reviewed the federal regulations at 20 C.F.R. § 656.17(e)(1)(ii)(B) and noted that postings on websites can “be documented by providing dated copies of pages from the site that advertise the occupation involved in the application.” However, it also stated that this form of recruitment could be established through “provid[ing] an affidavit from the official within the employer’s organization responsible for the posting of such occupations on the website attesting, under the penalty of perjury, to the posting of the job.” Unfortunately, the recruitment report did not indicate that the signatory was responsible for posting positions on the employer’s website and the statements were not attested to under penalty of perjury. Consequently, BALCA upheld the denial. While this case does provide support for the idea that employers may be able to demonstrate that they validly posted a position on their website with documentation that is different than what is specified in the regulations, employers should still be careful to make dated copies of the website posting to avoid any possible denials.
In Matter of Cognizant Technology Solutions US Corp., the Board of Alien Labor Certification Appeals (“BALCA”) considered a labor certification case in which the Certifying Officer (“CO”) issued a denial based on a job order that was inconsistent with the ETA 9089. The employer sponsored the position of “Business Development Manager – IV” and stated that the position required a Master’s degree and 12 months of experience. The case was audited, and the employer provided a copy of the job order that was placed with the New Jersey state workforce agency. The experience section of the job order noted that it was “mid-career (2-15 years).” The CO denied this case because the experience requirements on the job order exceeded those listed on the ETA 9089. In response, the employer stated that it had listed 12 months of experience as the requirement, but the New Jersey job order system automatically converted this value to “mid-career (2-15 years).” The employer also submitted documentation from the New Jersey state workforce agency that demonstrated that this agency converted 12-179 months of experience to “mid-career.” BALCA noted that employers must make a good faith effort to recruit U.S. workers in labor certification cases. However, it also found that it “has expressed reluctance to penalize employers for a deficient form when the employer is otherwise acting in good faith.” BALCA found that a preponderance of the evidence showed that the employer had acted in good faith in placing this job order. Consequently, it overturned the denial. While it is important to ensure that the recruitment conducted for labor certification cases matches the ETA 9089, this case provides some support where the employer made a good faith effort to recruit appropriately but were prevented from doing so by a deficient form.
The DOS has released the October Visa Bulletin and almost all categories remained stagnant. Interestingly, there were no “predictions” for the upcoming months. Many people are predicting that we could see retrogression from existing dates as soon as next month for India EB2 while other categories may continue to creep along.
How long should it take for the USCIS to process an I-485 application with a current priority date ? Certainly not 4 years, at least not without an explanation. As a result of a Federal mandamus action, a Federal judge ordered a USCIS representative to appear in Court and explain why a 485 case had taken 4 years and was still not adjudicated. The judge took particular umbrage with the USCIS written explanation which the judge stated was “no explanation at all”. Maybe we are finally seeing people willing to stand up to the abuses of the USCIS and take more matters to Federal Court where you will get an opportunity to be heard by a decision maker bound by the law, and not by the whims of this administration’s political policy or as it appears in this case, simple incompetency.