As part of President Obama’s call to action on immigration (in late 2014), an effort to modernize the PERM program was initiated and most US employers were ecstatic; hoping, that the “waste of money Sunday print ads” would become a relic of the past however, earlier this week, the DOL announced that they would not be able to complete any rule-making prior to President Obama leaving office thus making the modernization project dead for now. Guess 2 years wasn’t enough time to figure out that the internet is here to stay and there are better ways to recruit workers than newspaper ads. Hopefully, the next Administration will continue this task (and faster).
Late last week, the Department of State (DOS) released the October Visa bulletin. This visa bulletin was particularly anticipated since it was the first bulletin of the new fiscal year. Unfortunately, it did not deliver much in the way of positive news. On the positive side, it did wipe out much of the “short-term” retrogression that raised its head in the EB1 and EB2 categories in Aug and Sept. but, the “Dates for Filing Chart” which is viewed as a predictor of movement for the upcoming fiscal year, fell short of expectations. A comparison of the Dates for Filing chart from Oct 2015, show further retrogression in the EB2 categories for China and India and no movement forward for India EB3. EB3 for the Philippines and all other countries are the only 2 categories with notable advancement. A legislative fix remains sorely needed but, with the ‘build a fence” radicals in charge of both the Senate and the House, no relief is in sight.
The Department of State (DOS) has released the September Visa Bulletin. The Dates for Filing chart remained unchanged however, once again, the USCIS has determined not to honor the dates for I-485 filings. The Final Action Dates chart was largely unchanged however, the EB3 category for the Philippines, India and all other countries showed slight forward movement. The DOS also announced that it has made the final calculation for FY 2016 preference limits and the Employment based limit was 140,338 with the per country limit set at 25,644. We are expecting better news in the October bulletin however, legislative relief for retrogression is baldy needed.
The Board of Alien Labor Certification Appeals (“BALCA”) recently overturned a denial after considering whether the employer had established by the totality of the circumstances that recruitment conducted for a position sponsored through labor certification demonstrated that the position had been open to U.S. workers. The employer sponsored the position of “Preschool Teacher” for labor certification. In drafting the Form 9089, the employer stated that the minimum education requirement was a “foreign equivalent of a Bachelor’s degree.” The Certifying Officer (“CO”) denied the case on the basis that the position was not open to U.S. workers because “by definition, a foreign degree equivalency requirement makes it impossible for most U.S. workers to qualify for the job opportunity.” The employer appealed the denial and stated that the position’s actual education requirement was a Bachelor’s degree or foreign equivalent. In reviewing the case, BALCA noted that it most consider the content of the employer’s recruitment efforts, not the content of the Form 9089. In addition, it specified that a totality of the circumstances test would be applied to establish whether a position was open to U.S. workers. BALCA stated that the recruitment for the position noted that a domestic Bachelor’s degree would be acceptable and determined that no U.S. worker was rejected for possessing a domestic Bachelor’s degree only. Consequently, it determined that the position had been open to U.S. workers under a totality of the circumstances test and overturned the denial. This case provides information regarding the legal standard that will be used to determine whether a position sponsored through labor certification is open to U.S. workers.
The Department of State recently released the August Visa Bulletin and as promised, several dates and categories retrogressed significantly. Of note, is the India EB1 category which retrogressed to Jan 1, 2010 and the All Other EB2 category which retrogressed to Feb 1, 2014. It is also interesting to note that the EB3 Philippine dates jumped forward three years to Jan 2013 in the Dates for Filing chart. Although, it is expected that the USCIS will not accept filings based upon the dates of filing chart but, instead, use the final action date chart, it is nonetheless a confirmation of the bubble that most felt existed in EB3 filings, heavily dominated by RN petitions. The September bulletin is likely to see even more retrogression or a complete unavailability in some categories as the fiscal year winds down with a fresh start coming Oct 1.
BALCA recently upheld its previous decisions that found that 20 C.F.R. § 656.17(f)(6) does not apply to state workforce agency job orders. In Matter of Pinnacle Technical Resources, Inc., the employer submitted a labor certification for a “Technical Recruiter.” The labor certification specified that the position was responsible for a number of recruitment related activities, including screening, interviewing, and conducting training of new employees. The case was audited and the employer submitted a job order in its audit response that stated that the position was responsible for activities that included analyzing payroll and benefits, employment verification, unemployment claims, and time sheet management. The Certifying Officer (“CO”) denied the case on the basis that the job order contained duties that “exceeded the job duties listed on the ETA Form 9089,” which was in violation of 20 C.F.R. § 656.17(f)(6). The employer appealed the case. BALCA reviewed its prior case law and determined that “the denial cannot be sustained because § 656.17(f)(6) only applies to advertisements placed in newspapers of general circulation or in professional journals. It does not regulate the content of SWA job orders.” While it is critical that recruitment match the job duties and requirements specified in a labor certification, the Hammond Law Group applauds BALCA for reminding the Department of Labor that job orders do not have the same content requirements as are demanded of newspaper advertisements and professional journals.
The Board of Alien Labor Certification Appeals (“BALCA”) recently determined that a typographical error resulting from inconsistencies between the labor certification form and its instructions could not serve as a basis for a denial. In Matter of UBS Securities LLC, the employer submitted a labor certification for a Director, Derivative Business Control Group. In the Form 9089, the employer listed that the position’s primary requirements were a Bachelor’s degree and 60 months of experience. The employer also stated that it would accept an alternative requirement of a Master’s degree and 36 years of experience. Per the federal regulations, primary and alternative requirements must be equivalent. The Department of Labor has historically found that a Bachelor’s degree and five years of overall progressive experience and a Master’s degree and three years of experience are equivalent. The Certifying Officer denied the case because it found that a Master’s degree and 36 years of experience is not equivalent to a Bachelor’s degree and 60 months of experience. In response, the employer argued that the Form 9089 “asks for primary experience requirement in terms of months, while the alternate experience requirement must be entered in terms of years.” Thus, the employer listed a requirement of 36 years in the alternate requirement section when it only required 36 months of experience. In reviewing the case, BALCA determined that the Form 9089 instructs applicants to state the number of years of experience. In contrast, the instructions to the Form 9089 directs employers to enter the number of months of experience. Since there was a discrepancy between the form and the instructions, BALCA found that “such inconsistencies ‘must be construed against the promulgator of the form and / or instructions, not the applicant.’” Consequently, the denial was overturned. It is critical that employers carefully read the requirements of every form submitted to the U.S. government. However, this case does assist employers who are faced with inconsistent requests in a form and its instructions.
The Board of Alien Labor Certification Appeals (“BALCA”) has historically determined that employers must indicate in advertisements that travel is expected when a sponsored position has a travel requirement. In Matter of IT Works International, Inc., BALCA upheld this precedent. In this case, the employer submitted a labor certification on behalf of a “Sales Manager – Technical.” In the ETA Form 9089, the employer stated that the position would require “work at various unanticipated locations throughout the U.S.” However, the newspaper advertisements that were conducted as part of the recruitment effort for this case failed to disclose this requirement. The case was audited and the Certifying Officer denied the case on the basis that the employer failed to disclose the travel requirement. The employer argued that its advertisements “increased the chances of qualified U.S. workers applying because some qualified potential applications who initially would not be willing to relocate might reconsider after the employer had the opportunity to interview them.” BALCA reviewed prior case law and the Office of Foreign Labor Certification’s FAQ’s on the PERM program and determined that the employer’s failure to state the travel requirements in the newspaper advertisements was a “clear violation of 20 C.F.R. § 656.17 (f)(4).” Consequently, the denial was upheld. BALCA has routinely found that employers must include travel requirements in advertisements if the sponsored role involves travel. The Hammond Law Group urges employers to include travel language in advertisements to avoid these types of denials and is happy to advise about appropriate language to include in advertisements that are part of a PERM recruitment effort.