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.
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.