The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision that discussed whether a laid-off U.S. worker was qualified for a position sponsored through an Application for Permanent Employment Certification. In Matter of Federal Home Loan Mortgage Corporation, the employer submitted a labor certification case for the position of “Financial Analyst – Senior.” The case was selected for audit, and the employer provided documentation showing why an employee who had been laid off by the employer was not qualified for the role. The description of the position provided in the ETA 9089 stated that it would involve the use of SAS programming and relational databases such as Structured Query Language. The Certifying Officer denied the case on the basis that the laid-off employee had the necessary years of experience in business applications and would “be able to acquire any additional job-specific knowledge during a reasonable period of on-the-job training.” In reviewing the case, BALCA referenced the regulations at 20 C.F.R. § 656.17(k)(1), which provide that an employer that is sponsoring a position for labor certification and has had a lay-off six months prior to the date that the case was filed must “notify and consider all potentially qualified laid off U.S. workers.” BALCA considered the resume of the laid-off U.S. worker and found that he had no experience with many of the programming and software tools that are used in the sponsored position. It also stated that the CO was incorrect in assuming that the laid-off U.S. worker’s experience with the employer would have necessarily included the use of these tools when there was no evidence in the worker’s resume to support this contention. Consequently, BALCA reversed the CO’s decision. The rules regarding the steps that must be taken to be eligible to file a labor certification when a lay-off has occurred are complex. Consequently, we advise employers to contact us if a lay-off occurs so that we can discuss how it will impact the immigration needs of employees.
On January 30, 2014, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision discussing on-campus recruitment as an additional recruitment step for purposes of labor certification. In Matter of Micron Technology, Inc., the employer submitted a labor certification case for the position of “Senior Design Verification Engineer.” The case was selected for audit. The Certifying Officer (“CO”) denied the case for a number of reasons, many of which were overturned after a request for reconsideration was filed. However, the CO maintained that the employer’s failure to provide “copies of pages of the notification issued or posted by the college’s or university’s placement office, naming the employer and the date it conducted interviews and / or participated in on-campus events” should result in a denial. In reviewing the case, BALCA referenced 20 C.F.R. §656.17(e)(1)(ii)(D), which states that on-campus recruitment “can be documented by providing copies of the notification issued or posted by the college’s or university’s placement office naming the employer and the date it conducted interviews for employment in the occupation.” BALCA determined that this section of the regulation used the word ‘can.’ By doing so, the methods of documenting on-campus recruitment stated in the regulation are a suggestion, not a requirement. Consequently, BALCA found that the employer can document on-campus recruitment through other methods “provided it provides adequate indication that the recruitment method was utilized, and the necessary information was provide to potential U.S. applicants.” This case establishes that employers can document their use of on-campus recruitment as an additional recruitment step through a variety of methods, as long as the employer can prove that the recruitment actually occurred and U.S. applicants were fairly apprised of the position.
On December 30, 2013, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision that discussed appropriate ways to use the employer’s website as an additional form of recruitment. The employer submitted an Application for Permanent Employment Certification for the position of “Assistant Sports Editor.” In the application, the employer stated that it had placed the position on its website as an additional recruitment step. The case was audited and the employer submitted documentation that showed that it had placed a career link on the bottom of its webpage that redirected users to the employer’s profile on hotjobs.com. The CO determined that the employer had not correctly documented that the position had been placed on its website and denied the case. BALCA reviewed the regulations at 20 C.F.R. § 656.17(e), which state that posting a position on the employer’s website “can be documented by providing dated copies of pages from the site that advertise the occupation.” BALCA determined that the documents provided by the employer showed that the position had been posted on hotjobs.com. However, it stated that they were insufficient to show that the position had been listed on the employer’s website because the regulations “contemplate[d] that the employer’s website will include actual ‘pages . . . that advertise the occupation,’ not just a link to a page that is located on a separate job search . . . website.” Consequently, the denial was upheld. This decision confirms that employers should post the job opportunity on the career section of their website and keep dated copies of the posting so that they can ensure that their recruitment steps are considered valid.
In the Matter of Siemens Energy & Automation, the Board of Alien Labor Certification Appeals (“BALCA”) reaffirmed its previous holdings and offered zero tolerance to an employer who failed to provide the required documentation in response to an audit notification from the Department of Labor. The employer filed an Application for Permanent Employment Certification for the position of “Senior Commissioning Engineer.” The Certifying Officer (“CO”) issued an audit notification and asked the employer to provide a copy of the prevailing wage determination that it received from the State Workforce Agency. The employer submitted its response and failed to include the prevailing wage determination. The case was denied on this ground. The employer requested reconsideration and argued that the prevailing wage determination had been accidentally left out of the audit response. A copy of the prevailing wage determination was submitted with the request. The CO responded that the prevailing wage determination “was barred . . . because it constitutes evidence not in the record on which the denial was based.” BALCA reviewed the case and determined that a “substantial failure by the employer to provide required documentation will result in that application being denied.” It also referenced previous cases that had been denied based on the employer’s failure to include the requested documentation. Consequently, the denial was upheld. PERM is an exacting process and leaves no room for errors. The Hammond Law Group is always happy to discuss the documentation that must be retained by employers to be used in case of an audit.
Recently, the DOL released performance data on PERM filings and processing in the 1st Q of FY 2013. Several interesting stats were provided. Over 50% of all new filings are for computer occupations. Over 11% of cases processed were denied. Almost 40% of cases in process are under audit review. Almost 50% of cases filed require a Master’s degree or higher.
The DOL has released new data on PERM cases and over 50% of all active cases are either being audited or under appeal.
According to recent statistics released by the DOL, there is a greater scrutiny of PERM applications. Over 40% of all applications currently pending are either under audit or supervised recruitment. Of the over 40,000 cases with decisions this fiscal year (10-1-2011 to date) over 15% have been denied.