The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether the Department of Labor (“DOL”) is entitled to a presumption that its audit notification letters are delivered to employers and their agents. In Matter of DGN Technologies, Inc., the employer submitted a labor certification case for the position of “Programmer Analyst.” The case was selected for audit and the DOL asserted that it sent an audit notification letter to the employer’s agent. No response was ever received from the employer or its agent. Consequently, the case was denied. The employer requested reconsideration on the basis that it never received the audit notification letter. The denial was upheld by the Certifying Officer (“CO”) on the basis that the audit notification letter was sent to the address listed by the employer on its Form 9089. The case was forwarded to BALCA. BALCA determined that a lengthy case history established that the CO was “not entitled to a presumption of delivery of mail sent by the National Processing Center in the absence of proof of its internal mailing procedures,” and overturned the denial. While it is critical that employers routinely check their mail for correspondence from government agencies, this case does provide support for the idea that the DOL may not automatically deny a case when the employer failed to respond to a request due to the fact that it never received the request in the mail.
The Board of Alien Labor Certification (“BALCA”) recently considered whether a wage range that is listed on the Form 9089 must match the wage listed on a notice of filing. In Matter of Doloma, Inc., the employer submitted a labor certification for the position of retail store manager. In the labor certification, it listed a wage range of $15.78 to $18.00 per hour. The case was audited and the employer submitted a notice of filing as part of its audit response that listed the wage for the position as $16.00 per hour. The Certifying Officer (“CO”) denied the case on the basis that the wage listed on the notice of filing was lower than what was stated in the labor certification form. The case was appealed and BALCA determined that the federal regulations provide that “advertisements must ‘not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.’” Since the notice of filing failed to mention that the sponsored position could earn a wage that went up to $18.00 per hour, it did not properly disclose the job opportunity to U.S. workers. Consequently, BALCA upheld the denial. Through this case, BALCA reminded employers that the wage information provided in recruitment that is conducted in a PERM case must provide consistent information regarding the job opportunity.
The Board of Alien Labor Certification Appeals (“BALCA”) recently considered when the validity period of an ongoing employee referral program begins. In Matter of Mphasis Corporation (successor in interest to AIG Systems Solutions Private Limited), BALCA reviewed a case that was denied on the basis that the recruitment conducted by the employer for the position of “Senior Programmer Analyst” did not occur within the validity period of the prevailing wage determination. Specifically, the employer stated on the Form ETA 9089 that it conducted an employee referral program starting on July 1, 2007. However, the prevailing wage determination validity period was from July 9, 2007 until October 10, 2007. The case was not filed until October 19, 2007. In response to the denial, the employer provided evidence that its employee referral program is ongoing and had been in existence since 2003. Consequently, BALCA determined that the “precise question for determining when the recruitment on the [employee referral program] commenced is when the company employees know a vacancy exists for which they can make a referral.” In reviewing the evidence, BALCA found that the employees were not alerted to this position until it was promoted internally on September 20, 2007. As a result, BALCA determined that the employee referral program did occur within the prevailing wage determination validity period and the denial was overturned. This case provides critical information about when an ongoing employee referral program is considered to have begun.
The DOL recently released FY2015 3rd Quarter data from its PERM program and the number of denials increased by over 100% when compared to 2nd Quarter. The stats revealed that denials have risen to over 11% of all applications and 22% of applications are currently under audit.
The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether handwritten dates on website postings that are completed as part of the recruitment for a labor certification case are permissible. In Matter of DGN Technologies Inc., the employer’s labor certification case was selected for audit and the employer provided evidence that it had posted the position on its website as one of the additional recruitment steps. The website postings contained a handwritten note stating that “continuous posting [had occurred] since June 1, 2008.” The Certifying Officer denied the case on the basis that the employer had failed to offer dated copies of its website advertisement. The federal regulations provide that an employer can demonstrate that it conducted recruitment on its website through dated copies of pages from that site. This evidence will constitute “primary evidence.” However, the Department of Labor’s Employment and Training Administration provides in its FAQ’s that an “affidavit from the official with the employer’s organization responsible for the posting of such occupations on the web site attesting, under penalty of perjury, to the posting of the job” is also permissible.” In reviewing this information, BALCA determined that the regulations only state that dated copies must be provided. They do not “specify that the date be generated electronically, nor does it require that the date be accompanied by a signature or attestation of the authorized person responsible for the posting.” Consequently, BALCA reversed the denial of the labor certification. This case provides critical information that discusses what types of evidence are permissible to document that an employer posted a position being sponsored through labor certification on its website.
Recently, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision that considered what type of evidence is needed to demonstrate that a U.S. worker is not qualified for a position being sponsored through labor certification. In Matter of Presto Absorbent Products, Inc., the employer had sponsored the position of “Engineering Manager.” The case was selected for audit and was denied because the Certifying Officer (“CO”) determined that the “employer’s recruitment report made only a generalized statement that U.S. workers did not meet the employer’s minimum requirements . . . Furthermore, the recruitment report did not contain the specific lawful job related reasons for rejection.” The employer’s recruitment report listed that eight resumes had been received for the sponsored role. It stated that the applicants lacked the required experience and “[a]ll applicants were reviewed to determine if they would be able and qualified to perform the duties of the position with a reasonable amount of on-the-job training. All applicants were determined not to have been able and qualified for the position even with a reasonable amount of on-the-job training.” BALCA reviewed the federal regulations and found that they did not “indicate a level of specificity beyond what the employer provided” in regards to disqualifying U.S. workers. BALCA also stated that it is permissible for employers to reject U.S. workers based upon lack of experience. Consequently, the CO’s decision was reversed. This case provides confirmation that U.S. workers may be rejected on the basis that they lack the necessary experience and would not be able to gain this experience through a period of on-the-job training. However, due to the Department of Labor’s recent focus on whether U.S. workers could become qualified for sponsored positions through a period of on-the-job training, the Hammond Law Group suggests that employers may want to provide detailed recruitment reports that specifically discuss why U.S. workers were not qualified and could not gain the necessary qualifications through a period of training.
The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision in which it considered whether the additional recruitment steps that are completed as part of a PERM recruitment effort must meet the content requirements that are imposed on the mandatory recruitment steps. In Matter of Computer Sciences Corporation, the employer submitted a labor certification for the position of “Program Office Senior Manager.” The case was selected for audit and the employer provided documentation of advertisements placed on its website and on a job search website. These advertisements constituted additional recruitment steps for this case and contained the language “willingness to travel; may require work from home office.” The labor certification filed for this position did not list any travel requirement or the opportunity to work from home. The Certifying Officer (“CO”) denied the case on the basis that these additional recruitment steps violated 20 C.F.R. § 656.17(f)(6) because they contained a requirement “which exceed[s] the job requirements or duties listed on the ETA From 9089.” BALCA reviewed the case and stated that “additional recruitment steps include advertisements placed on the employer’s website and on job search websites and, unlike mandatory advertisements, are not bound by the restrictions of [20 C.F.R. §] 656.17(f)(6).” Consequently, BALCA reversed the decision of CO. This case provides welcome clarification that demonstrates that the additional recruitment steps do not have the same content requirements as the mandatory recruitment steps. Nonetheless, the Hammond Law Group suggests that advertisements that are conducted as part of the PERM recruitment effort should not contain requirements or opportunities that are not listed on the Form ETA 9089.
The Board of Alien Labor Certification Appeals (“BALCA”) recently issued an en banc decision that discussed whether an employer must include its name on the notice of filing. In this decision, BALCA considered two cases where employers failed to include their corporate names. Both cases were denied by the Certifying Officer. In response to the denial, one employer argued that the omission of its name was harmless because the notice of filing stated “our company,” and any “interested persons would have been aware that ‘our company’ referred to [the employer] because the notice of filing was posted on the company’s premises.” The en banc panel reviewed prior case law and determined that the “vast majority of BALCA panel decisions have affirmed the denial of certification if the petitioning employer’s notice of filing did not include the name of the employer.” This panel stated that the PERM regulations require strict adherence to the regulatory provisions. Consequently, BALCA found that the “clarity of [the requirement of including the employer’s name on the notice of filing] and the ease with which an employer should be able to comply with this requirement belie any suggestion that strict enforcement of this requirement offends fundamental fairness or procedural due process.” As stated in prior blog posts, the PERM process is exacting and BALCA is very unforgiving of errors. The Hammond Law Group is always happy to assist employers with ensuring that all requirements set out in the PERM regulations are met.
Recently, the DOL released data on PERM applications processed in the 2nd Q of FY 2014 which ended March 31, 2014. Approximately 10% of applications filed are being denied and almost 30% of applications filed are currently under audit review. Interestingly, the number of new applications filed has dropped by over 10% from FY 2013.