The Board of Alien Labor Certification Appeals (“BALCA”) recently overturned the denial of a labor certification case that was submitted through the mail on the basis that the employer’s signature on the labor certification established that it was sponsoring the foreign worker. In Matter of La Hacienda Meat Market, Inc., the employer submitted a labor certification for the position of “Buyer / Produce.” The employer mailed the ETA Form 9089 to the Department of Labor because the employer was unable to pre-register electronically with the Atlanta National Processing Center. The mailed-in labor certification included a signature from the President of La Hacienda Meat Market in the employer’s declaration section. The Certifying Officer attempted to contact the employer three times by telephone to confirm sponsorship, but was unable to reach anyone. Consequently, the case was denied. BALCA reviewed the decisions of a number of cases that involved similar fact patterns and determined that “when an ETA Form 9089 is submitted via mail and includes the employer’s sworn statement under penalty of perjury certifying as to the conditions of employment offered, sponsorship is adequately verified.” Thus, the denial was overturned. While it is preferable to submit a labor certification through the online system, this case provides guidance that establishes that an employer’s signature on the ETA Form 9089 is sufficient to confirm sponsorship.
The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether the failure to include the name of the employer on a notice of filing is fatal to a PERM application. In Matter of G.O.T. Supply, Inc., the employer submitted an Application for Permanent Employment Certification for the position of “Welder-Fitter.” The case was selected for audit and the Certifying Officer (“CO”) denied the case on the basis that the employer failed to include its name in the notice of filing. In response, the employer argued that any potential employee would be able to identify the name of the employer because the notice of filing listed the employer’s President’s name and was posted at the employer’s premises. Alternatively, the employer argued that the failure to include the employer’s name in the notice of filing was a harmless error. In reviewing the case, BALCA reiterated that the federal regulations specify that the notice of filing must contain the name of the employer. It also stated that the notice of filing is “not a mere technicality, but is an implementation of a statutory notice requirement designed to assist interested persons in providing relevant information to the CO about an employer’s certification application,” and, thus, is not “to be lightly dismissed under a harmless error finding.” BALCA determined that in failing to provide the employer’s name, an individual who hoped to provide information to the CO about the application would be thwarted due to their inability to provide the name of the employer. Consequently, the denial was upheld. In drafting notice of filings, it is important that employers include all of the information specified in the advertisement content requirements that have been specified for the PERM program.
The Department of State (DOS) has released the February visa bulletin and there were no surprises. The “date for filing” chart remained unchanged and the “final action dates” chart fka priority date chart continued its steady progress aimed to reach the dates for filing chart by the end of the fiscal year.
The DHS has released the long anticipated proposed regulation which promised to provide greater portability to H-1b workers with approved I-140’s. A copy of the complete rule can be found here. Comments on the proposed rule are due on Feb 29, 2016 and the rule is not in effect until it becomes final, sometime after the comment period. Our office will be providing a detailed summary to clients next week. I hate to throw cold water on what should be a day of celebration but, a quick read through does not indicate that the portability provisions are as gracious as promised. There are however, other really good provisions which will be very positive for international professional workers and their employers. Happy New year and we wish everyone a great 2016.
BALCA Affirms Denial Where the Employer Made a Clerical Error in the Prevailing Wage Validity Period
In Matter of Simona Luca Vricella, the Board of Alien Labor Certification Appeals (“BALCA”) continued its trend of upholding denials in cases where a clerical error occurred in drafting the ETA 9089. In this case, the employer submitted a labor certification on behalf of a “Houseworker, General, Live-In.” In the labor certification, the employer listed a prevailing wage validity period of March 28, 2009 through April 1, 2010. The prevailing wage that was issued provided a validity period of April 2, 2009 to April 1, 2010. The Certifying Officer denied the case because the prevailing wage validity period exceeded the “one year maximum outlined in 20 C.F.R. Section 656.40(c).” The employer appealed the denial and argued that it made a clerical error in entering the prevailing wage validity period on the ETA 9089. In reviewing the case, BALCA noted that “PERM is an exacting process, designed to eliminate back-and-forth between applicants and the government, and to favor administrative efficiency over dialogue in order to better serve the public interest overall.” Since the employer incorrectly completed the labor certification and BALCA reiterated that the PERM program is supposed to highlight administrative efficiency, the denial was upheld. When drafting labor certifications, it is critical that employers correctly list the required information to avoid these types of denials.
The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether a fair labor market test occurred when an employee owned 50 percent of the sponsoring employer and usually made hiring decisions. In Matter of Step By Step Day Care, LLC, the employer sponsored the position of “Daycare Center Director” for Jennifer Colyer. The ETA 9089 specified that the employer was a closely-held corporation in which Ms. Colyer held an ownership interest. The case was selected for audit and the employer responded with evidence that (1) Ms. Colyer and her husband owned the employer and each held a 50 percent ownership share; (2) Ms. Colyer held the position of Director; and (3) recruitment was conducted by Gail Green, a subordinate of Ms. Colyer. The Certifying Officer denied the case on the basis that the employer’s evidence did not overcome the presumption that the job offer was not bona fide because the employer was a “closely held corporation, in which the alien has an ownership interest . . . and is one of a small number of employees.” The denial was appealed. In reviewing the decision, BALCA listed ten factors that should be considered to determine whether a bona fide job offer existed in a closely held corporation. BALCA determined that the denial should be upheld because a true test of the labor market did not occur. BALCA based this decision upon the fact that (1) Ms. Coyler held a 50 percent ownership interest in the employer, (2) is involved in the management of the company, (3) is related by marriage to the co-owner, (4) is one of a small number of employees, and (5) was in a position to influence the hiring decision for this role. Cases in which an employer sponsors an employee who is an owner or is related to an owner of the sponsoring organization are often audited. Consequently, the Hammond Law Group suggests that employers speak to an attorney before moving forward with these types of cases.
The Department of State (DOS) has released the January Visa Bulletin and there were several positive developments. The EB3 all other countries category saw the filing date move forward three (3) months. This was the first movement this fiscal year and reflected less than anticipated demand. India EB2 and Philippines EB3 saw forward movement of the priority dates of eight (8) and three (3) months respectively.
On November 20, 2015, the USCIS released its draft memo on Determining Whether a New Job is in “the Same or a Similar Occupational Classification” for Purposes of Section 204(j) Job Portability for comment. A copy can be found here. The memo details how Officers should evaluate two different sets of job duties as they relate to Standard Occupational Classification (SOC) codes. Of note, is that the same or similarity of the two position can be shown if the jobs are found within the same broad occupational group code, the first 2 digits. Officers are also instructed to take an individual’s career progression into consideration and they may also consider the difference in the individual’s wages. The comment period end January 4, 2016.
The Department of State (DOS) has released the December Visa Bulletin and as expected, several categories saw forward movement consistent with the “projections” inherent in the “Dates for filing” chart. The December bulletin also contained some projections for the next several months which indicated that we may see even faster than expected forward movement for the EB3 all other category, EB2 India, and EB3 China categories.
The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether candidates that a state workforce agency matched to an open position must be considered applicants for purposes of preparing a recruitment report as part of the PERM process. In Matter of Lakha Enterprises, Inc., the employer submitted a labor certification case for the position of “Cook.” The case was selected for supervised recruitment. The employer submitted documentation that a job order was placed with the Illinois State Workforce Agency (“ISWA”) and that the number of matches was 0 and the number of recruiting outcomes was 20. In preparing the recruitment report, the employer did not list the candidates who were listed by the ISWA as part of the recruiting outcome because these candidates did not affirmatively apply for the job. Rather, these candidates only “inquired about the job posting by viewing it, and did not actually apply for the job.” The Department of Labor denied the case on the basis that these 20 candidates were not listed in the recruitment report. In reviewing the case, BALCA considered the DOL’s FAQ’s which state that an “employer is responsible for considering / contacting those applicants who have affirmatively provided a response as specified by the employer in the job order.” BALCA found that the job order in this case instructed applicants to apply through submitting a resume to the employer. However, none of the 20 candidates submitted a resume. Thus, they did not affirmatively apply for the position. BALCA reversed the denial on the basis that these 20 individuals were not actually candidates for the position because they did not affirmatively apply for it. This case establishes that individuals who are matched to an employer who has submitted a job order as part of the PERM recruitment process will not be considered applicants unless they actually apply for the posted position.