BALCA Reverses PERM Denial Due to Deficient Job Order Form

            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.

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