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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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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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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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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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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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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.

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Government Agency Actions - USCIS, ICE, etc.

Search Results Page is Insufficient Documentation of a Website Posting

Recently, the Board of Alien Labor Certification Appeals (“BALCA’) considered whether a search results page could serve as alternative documentation to dated copies of the posting on the employer’s website. In Matter of Spring Branch Independent School District, the employer sponsored the position of “Elementary (Pre-K-5th grade) – Bilingual (Spanish) Teacher.” The case was audited and the employer submitted a copy from its human resources job search page showing the position’s title, the salary, the position’s classification as professional, and that the role would have a probationary contract. No other information regarding the role was provided on this page. The Department of Labor (“DOL”) denied the case on the basis that the employer failed to provide copies of the website posting that included the language of the advertisement. In reviewing the case, BALCA noted that an employer may provide alternative documentation of its website positing beyond dated copies of the website listing. However, it also found the content of these advertisements must be provided so that the DOL can determine “whether the advertisement is for the occupation listed on the ETA Form 9089 and whether the advertisement was placed in good faith and the job was clearly open to U.S. applicants.” Consequently, the denial was upheld. While employers can use alternative documentation to prove that a position was listed on the employer’s website, the Hammond Law Group suggests that dated copies of the website posting that include the language of the advertisement be included in the recruitment report and in any response to an audit.

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BALCA Overturns Denial After Using a ‘Totality of the Circumstances’ Test

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.

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BALCA Determines Spelling Error in Employer’s Name in Job Order Did Not Discourage U.S. Workers

BALCA recently determined that a minor typographical error in the name of an employer on a state-workforce agency job order did not discourage U.S. workers from applying when the employer was known by a different trade name. The employer submitted a labor certification for the position of “Food Service Manager.” In the job order, the employer listed its name as “SWOWII, Inc.” However, the employer’s actual name was “SWDWII, LLC.” The Certifying Officer denied the case on the basis that this error would harm the ability of U.S. workers to identify the employer and would result in the Office of Foreign Labor Certification being unable to confirm whether the employer appropriately engaged in recruitment. BALCA reviewed information submitted by the employer that showed that it was a franchise of Saladworks and generally conducted business as “Harmony Saladworks” or “Harmony Plaza Saladworks.” BALCA determined that “because the employer’s legal name has little to do with the employer’s public identity, . . . a minor typographical error . . . on the job order would do little to confuse potential applicants about the employer’s identity.” Consequently, the denial was overturned. While employer’s should ensure that they correctly identify their name on all recruitment documentation that is conducted as part of the labor certification process, this decision does provide support for the idea that an error in the spelling of a name must actually cause potential applicants to be unable to identify the employer.

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BALCA Affirms that 20 C.F.R. § 656.17(f)(6) Does Not Apply to Job Orders

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.