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Green Cards

BALCA Clarifies How Employers May Use One Advertisement to Support Multiple Labor Certification Applications

In a recent case, the Board of Alien Labor Certification Appeals (“BALCA”) revealed the potential problems of using one advertisement to support multiple applications and how employers may avoid these potential issues. In Capgemini America Inc., 2013-PER-02219 (May 29, 2019) the employer submitted an Application for Permanent Employment Certification (“Form 9098”) for the position of “Computer Systems Analyst.” The employer’s recruitment materials for this application all advertised multiple “IT openings” and listed numerous job requirements, some of which were not listed on the Form 9098. BALCA affirmed the Certifying Officer’s denial, explaining what while employers may use a single advertisement to support multiple applications, the advertisement must make clear if some of the listed job duties apply to only certain positions. Since the advertisements in question did not clarify which of the listed job duties applied to only some positions, the advertisements failed to apprise U.S. workers of the job offered.

This case is thus a reminder that when using a single advertisement to support multiple applications with divergent job duties, employers must carefully draft their advertisements to specific when some of the listed job duties do not apply to all of the job openings.

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Government Agency Actions - USCIS, ICE, etc.

Social Security Number No-Match Letters Return

This spring, the Social Security Administration (“SSA”) has begun sending “Employment Correction Request Notices,” or no-match letters, to all employers with at least one W-2 form in which an employee’s name and Social Security number (“SSN”) does not match their records. Employers who receive such letters should not use the letters as reason to take adverse employment actions against their employees. In fact, such action may violate the anti-discrimination provision of the Immigration and Nationality Act, which prohibits discrimination on the basis of national origin, citizenship status or immigration status, document abuse during the employment eligibility verification process, and retaliation. Instead, employers should inform the employee of the no-match, verify the accuracy of their personnel records, and give the employee a reasonable time to contact the SSA office and correct the error.

 

For a complete list of steps employers should take upon receiving a no-match letter and information on how to avoid no-match letters, please see this month’s copy of the HLG Advocate.

 

If you have questions regarding this matter, please contact your HLG attorney or Rebecca M. Baibak, Esq. at rebecca.baibak@hammondlawgroup.com.

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Green Cards Green Cards

BALCA Clarifies How an Employer Can Satisfy its Obligation Regarding Possible On-the-Job Training

The Board of Alien Labor Certification Appeals (“BALCA”) recently suggested how an employer may demonstrate that on-the-job training is necessary for a position. In Microsoft Corp, 2014-PER-00615 (February 25, 2019) the employer rejected an applicant after an interview, finding the applicant was not sufficiently familiar with Scripting, C++, HTML, and Window as required. The Board affirmed the denial and held that the employer had failed to adequately document that the applicant could not qualify after a reasonable period of on-the-job training. BALCA stated that “more than a bare assertion is needed to prove that it is infeasible to train new workers within a reasonable period of on-the-job training.” The court then explained that an employer may demonstrate that on-the-job training is required in the following ways:

documentation from a vocational expert comparing the exact job requirements in the ETA Form 9089 to Applicant C.P.’s education, knowledge, experience, and skills; industry experts explaining the minimal requirements necessary to commence work in the position and why training in noted deficiencies is an not acceptable course of action; or an affidavit of the hiring official detailing the deficiencies noted with the basic job requirements and establishing a business necessity as to why the deficiencies cannot be corrected with any period of on-the-job training.

While some experts argue that this case is overreaching, the case is nonetheless a reminder that employers should explain in detail why on-the-job training is required for a particular position when denying an applicant on this ground.

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Visas - H-1b, L-1, E, O, TN

U.S. Embassy in Israel soon accepting E-2 Visa Applications

The U.S. Embassy in Israel recently announced that a treaty investor agreement (E-2 Visa) has been signed between the United States and Israel. Beginning May 1, 2019, the U.S. Embassy in Israel will accept E-2 investor visa applications. The E-2 visa is a temporary (nonimmigrant) visa that can be used to develop, direct, or provide specialized skills to an enterprise in which the owner has invested a substantial amount of capital. This treaty agreement between the U.S. and Israel has been long anticipated. With the implementation of this E-2 visa, Israeli investors will have the opportunity to invest in the U.S. economy and send qualified employees to the U.S. Similarly, U.S. citizens will be able to apply for visas to invest in the Israeli economy.

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Green Cards

BALCA Upholds Denial where Employer Failed to Interview a Potentially Qualifying U.S. Applicant

The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether an employer should interview an applicant during the recruitment process in The Bank of Tokyo-Mitsubishi UFJ, LTD. In this case, the Employer filed an Application for Permanent Employment Certification (“ETA From 9089”) for the role of “Analyst/Systems Specialist-Systems Office for the Americas.” The case was audited and denied on the basis that the Employer unlawfully rejected a potentially qualified U.S. applicant without an interview. BALCA upheld the denial. First, the Employer required an Associate’s Degree “in any field” or 36 months of experience in “[r]elated tech exp w/systems analysis, design&dvlpt [sic], w/.NET, C#, C, C++, VBA.” Therefore, the fact that the Applicant did not list an Associate’s Degree on his or her resume was not an appropriate basis of disqualification. Second, the Applicant had more than 15 years of software development experience so it was reasonable to conclude that he may have 36 months of experience in the necessary skill sets. Notably, BALCA also rejected the Employer’s argument that the Applicant was not qualified because he had experience in “SQL programming language” and the Employer required technical development experience with “SQL Server (AF11).” BALCA explained that this did not matter because Section H of the ETA From 9089 did require experience with a particular type or version of SQL.

This case is thus a sobering reminder that employers should error on the side of caution and interview (or inquire further regarding) possibly qualifying U.S. applicants.

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Government Agency Actions - USCIS, ICE, etc.

PERM Modernization Rule Discarded

On December 19th, the Office of Foreign Labor Certification (“OFLC”) posted a FAQ that stated that it has withdrawn the PERM modernization rule that had been submitted to the Office of Management and Budget. No details were provided about why this rule was withdrawn. However, OFLC has confirmed that it is dedicated to streamlining and updating the PERM process. OFLC may submit a new PERM modernization rule in the future. However, the rule making process will have to start from the beginning. The Hammond Law Group is curious about the basis for withdrawing this rule and hopes that a new PERM modernization rule will be introduced in the future to reflect “real-world” recruitment and to make this process more efficient.

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Government Agency Actions - USCIS, ICE, etc. Green Cards

DOL Halts PERM Denials Based upon “Competitive Salary”

The American Immigration Lawyers Association (“AILA”) recently meet with the Department of Labor’s Office of Foreign Labor Certification (“OFLC”) for its quarterly stakeholder meeting. In this meeting, the OFLC informed AILA that it had suspended denying cases on the basis that the recruitment stated that a “competitive salary” was offered or that salary “depends on experience.” This decision was based upon the Board of Alien Labor Certification Appeal’s (“BALCA”) recent findings in Matter of TekServices, which found these denials to be unsupported under the law. The Hammond Law Group hopes that BALCA is able to quickly overturn the denials that were made on this particular issue.

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Green Cards

BALCA Reverses Denial based on “Competitive Salary”

Many employers have been frustrated by the DOL’s decision to deny labor certifications where an employer used the language of “competitive salary” or “depends on experience” in portions of their recruitment. The Board of Alien Labor Certification Appeals (“BALCA”) provided a decision in Matter of TEK Services LLC that may assist employers in fighting against these unwarranted denials. In this case, the employer submitted a labor certification on behalf of a “Computer Systems Analyst.” As part of its recruitment effort, the employer stated that the position offered a “competitive salary” in the job order and on the employer’s website. The Certifying Officer (“CO”) denied the case based upon 20 C.F.R. § 656.24(b)(2) and noted that the advertisements placed by the employer do “not adequately apprise U.S. workers of the nature of the wage . . . also can dissuade some U.S. workers from applying for the job opportunity, and mislead others.” In reviewing 20 C.F.R. § 656.24(b)(2), BALCA noted that it provides the basis upon which a labor certification can be granted or denied, including how the CO should consider the employer’s compliance with the attestation that no qualified, available, and willing U.S. worker was applied. However, it does not list any requirement in regards to salary. Consequently, BALCA “rejected the CO’s effort to utilize 20 C.F.R. § 656.24(b)(2) as a catch-all denial ground encompassing any employer action that the CO deems problematic, despite citing no specific regulatory requirement that the employer has violated.” The Hammond Law Group applauds BALCA for reminding the DOL that it cannot make up new standards that have no basis in the federal regulations.

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Green Cards

DOL Issues Guidance on Recruitment Reports

The Department of Labor (“DOL”) recently released a FAQ on the information that should be included in recruitment reports. Recruitment reports are required to be prepared as part of the process of preparing a labor certification to be filed. The DOL specified that a recruitment report must include: (1) the total number of U.S. applicants who applied for the position, (2) the total number of U.S. applicants hired for the position, and (3) the total number of U.S. applicants who were rejected based upon a lawful job-related reason. The lawful job-related reasons for rejecting U.S. workers should be categorized. The DOL further specified that employers should list the total number of U.S. applicants who were interviewed and a list of the names of U.S. workers who were rejected under each category. Finally, if an applicant was rejected under multiple categories, the category that he is listed under must state the multiple bases of rejection. For instance, if a candidate was rejected because he did not have the necessary education and did not have the required total years of experience, he should fall under a category titled “candidates lacking the required education and experience.” The DOL specified that this type of categorization will “enable the certifying officer to clearly establish the reason for disqualification of each U.S. worker.”

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Green Cards

BALCA Reverses Denial where Employer Failed to State Geographic Area of Employment on Website Posting

The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether a website advertisement that did not list the location of employment failed to apprise U.S. workers of the nature of the role. In Matter of VLS It Consulting, Inc., the employer submitted a labor certification for the position of “Computer Systems Manager/ Training Division Manager.” The case was audited and denied on the basis that the website advertisement did not list the geographic area of employment. The Certifying Officer argued that the lack of worksite location information violated 20 C.F.R. §656.17(f)(4). The employer appealed and argued that its corporate address was ‘listed on the homepage and the ‘contact us’ portion of the website.” BALCA reviewed the case and reminded the Department of Labor that 20 C.F.R. §656.17(f)(4) only applies to advertisements placed in newspapers of general circulation. Thus, this statutory section could not serve as a basis for denial. Furthermore, BALCA determined that since the employer’s address was listed on other sections of its website, no U.S. worker was misinformed of the nature of the job opportunity. BALCA reiterated that “when relevant information on a website advertisement is a ‘simple mouse click’ away, denial of certification is not supported by the regulations.” While this case does support the idea that the location of employment is not required to be listed on website advertisements, the Hammond Law Group suggests that all advertisements include the location of employment to avoid improper denials by the Department of Labor.