Recently, the Board of Alien Labor Certification Appeals (“BALCA”) considered whether the National Prevailing Wage Center (“NPWC”) Director has the discretion to reject an employer-provided wage survey that does not include an arithmetic mean wage. The employer submitted a prevailing wage determination for the position of “speech language pathologist” and requested that the NPWC consider a wage survey from Compdata Survey. This survey provided a median wage, but did not include an arithmetic mean wage “because doing so would have violated guidance issued by the Department of Justice for ‘Statements of Antitrust Enforcement Policy in Health Care.’” The NPWC rejected the use of the survey because it failed to include an arithmetic mean wage. This decision was appealed on the question of whether the NPWC Director has the discretion to refuse to consider an employer-provided wage survey that did not contain an arithmetic mean wage. BALCA noted that “neither the applicable regulations nor the guidance document require an employer-provided survey to offer the arithmetic mean wage whenever the data to do so may be available. There is also no regulation or guidance that requires an employer provided survey to take extra measures to ensure that the arithmetic mean wage is offered.” Rather, the regulations provide that if a “survey provides a median and does not provide an arithmetic mean, then the prevailing wage applicable to the employer’s job opportunity ‘shall be the median of the wages of workers similarly employed in the area of intended employment.’” Consequently, the decision of the NPWC Director was determined to be an abuse of discretion and was remanded. This case provides critical information to employers who may employ greencard candidates in locations or sectors that cannot provide an arithmetic mean wage.
There has been reported delays in the production of I-765 and I-485 cards. This is due to the USCIS card production facility in Corbin, KY undergoing maintenance. All card production has been switch to another facility and of course that facility is now backlogged. If you are expecting an I-765 or I-485 card from a recently approved petition expect an additional 2-3 week delay in receiving your card in the mail. USCIS expects to resolve this issue sometime in September.
The Department of State has released the last Visa bulletin of fiscal year 2015. Priority dates will often retrogress or even become unavailable in the September bulletin as allocations for the fiscal year are exhausted and the EB2 categories for both India and China saw retrogression of some significance. It is noteworthy that dates continued to stay almost “current” for EB3 all other countries (ROW) and that dates actually moved forward for Philippines EB3 and India EB3. The October visa bulletin will be anxiously awaited. Legislation remains sorely needed to address retrogression and the long visa waits.
The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether handwritten dates on website postings that are completed as part of the recruitment for a labor certification case are permissible. In Matter of DGN Technologies Inc., the employer’s labor certification case was selected for audit and the employer provided evidence that it had posted the position on its website as one of the additional recruitment steps. The website postings contained a handwritten note stating that “continuous posting [had occurred] since June 1, 2008.” The Certifying Officer denied the case on the basis that the employer had failed to offer dated copies of its website advertisement. The federal regulations provide that an employer can demonstrate that it conducted recruitment on its website through dated copies of pages from that site. This evidence will constitute “primary evidence.” However, the Department of Labor’s Employment and Training Administration provides in its FAQ’s that an “affidavit from the official with the employer’s organization responsible for the posting of such occupations on the web site attesting, under penalty of perjury, to the posting of the job” is also permissible.” In reviewing this information, BALCA determined that the regulations only state that dated copies must be provided. They do not “specify that the date be generated electronically, nor does it require that the date be accompanied by a signature or attestation of the authorized person responsible for the posting.” Consequently, BALCA reversed the denial of the labor certification. This case provides critical information that discusses what types of evidence are permissible to document that an employer posted a position being sponsored through labor certification on its website.
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.