I shared the outcome of a BALCA appeal with a client who was delighted by its similarity to his own situation; he suggested I share the published decision (now in the public domain) with others who might benefit from the ruling. I demurred until I received this email:
I am an AILA member and I am working on a project for AILA’s update to its PERM book. I am updating my BALCA case summary chart that breaks down relevant cases in three aspects (due process, regulatory interpretation, and case law analysis). Additionally, the chart cross-references cases on similar topics (ex. Advertisement Content, Applicant Review, etc.). The chart starts in 2012 and will run through the present date.
I wanted to compliment you for your work on the 2017 Clearstructure Financial Technology case. In my opinion, the use of H.6/H.11 can be a challenge in many settings. In other BALCA cases, employers have “won” on the H.6/H.11 applicant rejection argument, but “lost” because the sponsored worker did not meet the requirement either. Great work. All the best.
BALCA Case No.: 2016-PER-00775, was a very good case to win since it allowed the Applicant to secure an excellent priority date. Form ETA 9089, Item H.6/H.11 (Job Opportunity Information – Experience/Job Duties) contained the very minimum requirements for the position of a “Marketing Analyst”. The Certifying Officer denied the Application after an audit since the employer had not interviewed one of the applicants who appeared qualified for the position.
Case notes from the file revealed that the employer had articulated very clear, valid and compelling reasons why he thought the applicant was unqualified for the position. However, the question we had to answer as part of the appeal was – did the employer’s reasons rise beyond the requirements at § 656.17(g)(2)? Specifically, “[r]ejecting U.S. workers for lacking skills necessary to perform the duties involved in the occupation, where the U.S. workers are capable of acquiring the skills during a reasonable period of on-the-job training is not a lawful job-related reason for rejection of the U.S. workers.
I believe the final decision hinged on the employer’s recruitment report which contained a very detailed statement from the employer. Attorney Blackburn worked diligently with the employer to capture his analysis in a well-written statement. Here are salient paragraphs:
As a reason for what the position entailed, the employer stated (Page 7 of the Decision):
“…CS is a software company that specializes in developing and licensing a web based portfolio management software application that targets Asset Managers, Hedge Funds, Loan Trading and fixed income investment markets. The requirement is both technical and specialized given that our product caters to institutional investors buying and selling a variety of asset types.”
The letter further went on to emphasize the applicant’s lack of marketing knowledge and experience (Page 7 of the Decision):
“[The Applicant]…has no portfolio management experience and this is one of the most important areas of experience we were looking for since it‘s our core business… web marketing experience as described in his resume is limited to posting social media posts to Facebook and Twitter — a very rudimentary skill…but it’s not experience that is relevant to the CS Marketing Analyst position. The Marketing Analyst position requires knowledge and expertise on how to conduct web marketing and branding campaigns to smaller, specialized markets (gather data on competitors, provide necessary information for promotions, distribution, design, setting price of products and/or services) and how to pull people to our website.
The ALJ agreed stating (Page 10 of the Decision):
Accordingly, we find the Applicant‘s resume does not raise a reasonable possibility that he met the Employer‘s experience requirements, and therefore the Employer was not required to make further inquiry into the Applicant‘s qualifications.
The Application has since been certified.