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Employer Law Report

BALCA Exercises Reason and Common Sense to Reverse Denials of Certification

Posted in Immigration

The Board of Alien Labor Certification Appeals (BALCA) recently issued three decisions reversing the Certifying Officer’s (CO) denials of certification.

In Matter of Cognizant Technology Solutions US Corp., (Nov. 29, 2012), the employer had submitted a PERM application for the position of Business Development Manager which required a master’s degree and 12 months of experience. As part of the recruitment process and as required by the regulations, the employer placed a job order with the New Jersey State Workforce Agency stating the said requirements for the position. Due to an automatic conversion programmed into the job order form, the posted job order stated that the experience requirements for the position was "Mid Career (2-15 years)." The CO denied certification on the basis that the job order’s experience requirement exceeded the 12month requirement stated on the PERM application. Finding that the employer could not prevent the automatic conversion to a pre-determined range, BALCA concluded that the employer conducted a good faith recruitment effort as required by the regulations. In reversing the CO’s denial, the BALCA reiterated its earlier finding in Federal Insurance Co., (Feb. 20, 2009), that denying certification where a deficient form prevented an employer from complying with the regulations offends fundamental due process.

In Matter of Infosys Technologies Limited, (Nov. 16, 2012), BALCA stated: "Our analysis is guided by the purpose of regulation which is to assist employers in adequately testing the labor market." BALCA found that the employer adequately tested the labor market for a consultant-type employee where the recruitment ads were placed in the San Francisco Chronicle and its related job search website, indicating that the position was located in San Francisco which may require multiple long-term assignments within the region. Due to the limitations of the PERM application form for consultant-type positions with unanticipated client sites, the application indicated the employer’s headquarter office, located in Fremont, California, as the location of job opportunity. The CO had determined that San Francisco and Fremont were not in the same Metropolitan Statistical Areas (MSA) and that the geographic area of employment in the ads did not match the geographic area of employment in the PERM application. BALCA found that any U.S. worker reading the ads would realize that the job location may be anywhere within the San Francisco area, which would include Fremont, and reversed the CO’s denial of certification.

In Matter of Bottomline Technologies, (Oct. 18, 2012), the CO had denied certification on the grounds that the employer did not adequately document the employer referral program as one of the recruitment steps. Specifically, the CO noted that the documents did not show that the program was in effect during the relevant period of recruitment and that the employees were on notice of the job opening. While commenting that the employer’s evidence "could have been better presented," BALCA found that the employer submitted enough documentation to show that the program was in effect and that the employees were on notice when considering all the evidence submitted by the employer in its response to the PERM Audit and its motion for reconsideration. As to the CO’s finding that the program documentation did not include the employer’s name or the job location, BALCA found that the job posting in the employer’s website clearly included the employer’s name and the job location, and further stated as follows: "Perhaps the CO was looking for this information to be on the employee handbook description of the employer referral program itself, but that is not a reasonable or realistic expectation."

BALCA is to be commended for exercising reason and common sense in its interpretation of the regulations in deriving these decisions. We hope that BALCA continues to be guided by the purpose of the regulations and will not seek technical reasons to deny certifications for applications filed and processed in good faith.

(For a general description of the PERM process, please see our previous post.)