Below are some important Board of Alien Labor Certification Appeals (BALCA) cases.
PERM Certification Granted on Appeal – BALCA Decision Captures Diligent Effort by our Team
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.
BALCA Upholds Denial Based on Procedural Grounds
BALCA found that when an employer requests review by BALCA, rather than filing a MTR, BALCA is only bound to consider information before the CO upon denial and the employer is prevented from supplementing the record with information. (Matter of University of California-Berkeley, 8/30/18) Read BALCA decision(PDF).
BALCA Upholds Denial Based on Newspaper Ads with Multiple Openings
BALCA found that while a single ad may be used for more than one position, it does not sufficiently apprise U.S. workers of an opportunity if it does not include the position’s title and includes a careless summary of duties and requirements. (Matter of Igate Global Solutions, 8/30/18). Read BALCA decision(PDF).
BALCA Overturns Denial, Says Advertisement of the Occupation Rather than Particular Position is Acceptable
BALCA upheld denial where the employer submitted a recruitment report signed by its agent, as opposed to itself, in direct violation of 20 C.F.R. §656.17(g)(1) which requires either the employer or its representative to sign the recruitment report. (Matter of DMPRO, Inc., 3/24/16). Read Balca decision(pdf)
BALCA Overturns Denial Where Employer Name on 9089 Did Not Match That on SWA Job Order
BALCA overturned the denial, holding that a minor typo in the employer name on the SWA job order did little to confuse potential applicants about the employer’s identity or undermine the employer’s §656.10(c)(8) attestation. (Matter of SWDWII LLC, 1/29/16). Read Balca decision(pdf)
BALCA Orders Grant of Certification Because SWA Job Order Is Not Controlled by 656.17(f)(6)
BALCA ordered certification to be granted despite a divergence of duties between Form ETA 9089 and the SWA job order, finding that 656.17(f) only applies to the required newspaper or professional journal. (Matter of Pinnacle Technical Resources, Inc., 1/21/2016). Read the Balca case here.
BALCA Remands Section K Cases for Certification, Dismisses Appeals
After denial solely for failing to list non-experience based qualifications in Section K, BALCA ordered the matter remanded for certification, which the CO supported. See three factually similar cases: 2014-PER-00224, 2014-PER-00260, and 2014-PER-00262. (Matter of The Cadmus Group, 1/15/16). Read Balca decision(PDF)
BALCA Reverses Denial Based on Dated Website Screenshots and Radio Audio Recording and Contract
After employer failed to provide dated website postings and the text of the radio ad, BALCA held that screenshots are “dated copies” and that an audio recording and contract from the radio station confirming when the ad ran was sufficient. (Matter of Waldorf School of Orange County, 11/6/15). Read the BALCA decision.
BALCA Reverses Denial of a Mailed In Application Denied for Failure to Verify Sponsorship
BALCA determined that employer verified sponsorship upon signing the statement certifying the conditions of employment on the mailed-in application. The application was remanded to CO for further processing on the merits of the application. (Matter of La Hacienda Meat Market, Inc., 11/4/15). Read the Balca decision here.
BALCA Upholds denial for PW Typo
Denial affirmed where prevailing wage validity period on 9089 was less than 90 days. Validity was actually “90 days from date of determination” but dates were entered incorrectly on 9089. (Matter of Guilbert Tex, Inc., 10/14/15). Read the Balca decision here.
BALCA Affirms Denial Where Notice of Filing Lacks Employer Name
BALCA affirmed denial where the company president’s name but not employer’s name was on the NOF. Rejecting the employer’s harmless error argument, BALCA said persons providing information to the CO need the employer name as it appears on Form 9089. (Matter of G.O.T. Supply, Inc., 10/6/15). Read the Balca decision here.
BALCA Upholds Denial for Failure to Submit Signed Recruitment Report
Acknowledging that 20 CFR 656.17(g)(1) does not explicitly require recruitment reports to have “original” signatures, BALCA upheld the denial of 3 labor certifications rejecting the argument that the typewritten name constituted an electronic signature. (Matter of NYC Dept. of Educ., 5/14/15). Read the BALCA decision here.
Balca decision regarding Denial for Failure to File Recruitment Report
BALCA upheld the CO’s denial for failure to submit a recruitment report describing the recruitment steps undertaken, as 20 CFR 656.17(g)(1) requires, when the employer inadvertently omitted a page. (Matter of Simply Soup LTD., 1/13/15). Read the BALCA case.
BALCA on “Infeasibility to Train”
BALCA found that where the employee gained the required experience while working for the employer, the employer’s detailed statement sufficiently documented that it was no longer feasible to train a worker for the position under 20 CFR §656.17(i)(2)(ii). (Matter of Kentrox, 5/22/14). Read the BALCA case.
BALCA on Use of Single Newspaper for Multiple Recruitment Steps
Finding nothing in the regulations prohibiting an employer from using the same newspaper as both a “general circulation” and a local newspaper, BALCA reversed the denial where the employer placed two Sunday ads and one Tuesday ad in the Boston Globe. (Matter of Delta Search Labs, 4/24/14). Read the BALCA case.
BALCA Panel Disagrees with Credit Suisse Holding on Ad Requirements
BALCA reversed the CO’s denial, finding that based on the plain language of the regulations and the regulatory history, the advertising content requirements of 20 CFR 656.17(f) do not apply to additional requirement steps found in section 656.17(e)(1)(ii). (Matter of Symantec Corp., 2/11/14). Read the BALCA case.
BALCA Reverses PERM Denial for Senior Financial Analyst
BALCA reversed the CO’s denial, finding the laid-off U.S. worker clearly lacked the required experience and skill in specified accounting and modeling programs based on the face of the worker’s resume and the employer’s ETA 9089. (Matter of Federal Home Loan Mortgage Corp., 2/10/14). Read the BALCA case.
BALCA Says ETA 9089 Lacks “Free Form Space” for Clarifying Eligibility
BALCA held that the CO was unreasonable in insisting that the alien’s holding of the required degree be disclosed on the 9089 where documents in the reconsideration motion showed that a bachelor’s degree is a prerequisite for a Montessori certificate. (Matter of The Clariden School, 1/30/14). Read the BALCA case.
BALCA Finds Employee’s Letter Sufficient Evidence of Required Skills
BALCA found that the employee’s letter affirming her knowledge of programming and other skills was sufficient where the audit asked the employer to “provide documentation” without specifying the type of documentation or indicating that the letter must be notarized. (Matter of PARC, 4/2/14). Read the BALCA case here.
BALCA Discusses Factors for “Professional or Trade Organizations”
Noting that the list of factors set forth in the decision were not exhaustive, BALCA found that Dice.com is a job search website for IT professionals, not a “professional organization” for purposes of recruitment under 20 CFR §656.17(e)(1)(ii)(E). (Matter of Privthi Info. Solutions, 11/1/13). Read the BALCA case here.