BALCA Exercises Reason and Common Sense to Reverse Denials of Certification

Posted on December 20, 2012 by Catherine Kang

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.)
 

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BALCA Finds Employer's Duty to Investigate Further The U.S. Applicants' Qualifications

Posted on October 2, 2012 by Catherine Kang

In its latest decision, Matter of Select National Inc. (Sept. 19, 2012), the Board of Alien Labor Certification Appeals (BALCA) affirmed the denial of a labor certification by holding that even if a potential U.S. worker applicant did not appear to meet the required amount of experience, the employer had a duty to investigate further where the resume demonstrated a "broad range of experience, education and training." (For a general description of the PERM process, please see our recent post).

Select National Inc., follows two decisions issued earlier in the year, Matter of Goldman Sachs & Co. (June 8, 2012), and Matter of Kennametal, Inc. (March 27, 2012), both affirming denials based on employer's duty to investigate further.

In Select National Inc., BALCA stated as follows: "We agree with the Employer that (the U.S. applicant) does not appear to meet the minimum requirement of three years' experience in the job offered. However, even if the applicant did not have the exact experience required, the Employer was under a duty to investigate the applicant further."

In all three cases, BALCA acknowledged that the U.S. applicants did not meet the requirements as specified in the recruitment ads and the PERM application, whether it was the required degree or the specific skill set. However, BALCA reasoned that because all three employers had included a variation of the "magic" Kellogg language ("any suitable combination of education, training or experience is acceptable") in the PERM applications and/or the recruitment ads, the employer had the duty to further investigate the credentials of the U.S. applicants. Furthermore in Kennametal, BALCA reasoned that the employer failed to consider whether some of the applicants could be qualified "after a reasonable period of on-the-job training."

These BALCA cases emphasize both the importance of appropriately drafting the recruitment ads and the PERM application while considering any business necessity for the specified education and experience being sought and the importance of properly conducting and documenting the recruitment process in accordance with the regulations.

In Matter of JP Morgan Chase & Co. (July 16, 2012), BALCA vacated the denial of certification where the Certifying Officer (CO) had determined that the U.S. applicants had suitable combination of education, experience and training to necessitate interviews. BALCA held that where the employer showed business necessity of the skills being sought and the infeasibility of on-the-job training for the said skills, U.S. applicants may be rejected without further investigation in the absence of CO's finding that the requirements are unduly restrictive for the position.

Additionally, the decisions demonstrate the inherent problem with the PERM process. As reiterated by BALCA in all three cases, the goal of the Immigration and Nationality Act is to ensure that foreign workers do not obtain permanent employment in the United States where there are U.S. workers who are able, willing, qualified, and available to perform the work. While the goal, as stated, may be meaningful in the context of the current high unemployment rate in the U.S., in practice, the PERM process ignores the real-world interest of U.S. employers to find the best-qualified, not minimally qualified workers. Ultimately, businesses create greater economic growth with highly competent, not minimally qualified employees.
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What is PERM?

Posted on October 1, 2012 by Catherine Kang

An application for Labor Certification, known by the acronym PERM (Program Electronic Review Management) is often the first of three steps required by an employer who wishes to sponsor a foreign national employee for permanent resident status. This post will provide some background and general explanation for the PERM process. We anticipate more posts in the coming months to explain some of the detailed processing issues that are of interest to employers and individuals working through the PERM process.

In most instances, the "green card processing" involves three steps:

  1. A U.S. employer wanting to hire a foreign worker on full-time permanent basis, files a PERM application with the U.S. Department of Labor Employment and Training Administration (DOL-ETA) for certification; 
  2. Upon certification, the U.S. employer files an I-140 Immigrant Petition for Alien Worker with the U.S. Citizenship and Immigration Services (USCIS, fka INS), an agency of the U.S. Department of Homeland Security; and
  3. Upon approval of the I-140 petition and upon availability of a visa number, the foreign worker files an I-485 Application to Register Permanent Residence or Adjust Status.

Only by successfully completing all three steps, the foreign worker will become a Lawful Permanent Resident of the United States, or "will have a green card."

The PERM application satisfies the statutory requirement that the U.S. employer demonstrate that there are no U.S. workers who are able, willing, qualified, and available to perform the work being given to the foreign worker and that the employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. This last requirement has been interpreted to mean that the position must be offered at the "prevailing wage" as determined by the DOL.

In order to demonstrate a shortage of U.S. workers, the employer must actively recruit in good faith for a minimum of 30 days for the position being offered to the foreign worker and attest to paying the foreign worker at or above the prevailing wage before the PERM application can be filed.

For a typical professional position (i.e., engineer, accountant, software application developer), the required recruitment process includes the following: two print ads in the local Sunday newspaper, 30-day posting on the state Job Order, and posting in three additional sources, such as employer's web site, Internet job posting site and campus placement offices. The employer must choose three recruiting media from a list of 10 options. The employer must also give notice of filing of PERM application to a bargaining representative or to the employer's employees at the location of the employment through posting for at least 10 consecutive business days.

During the recruitment process, the U.S. employer must actively recruit in good faith any U.S. workers who may be able to fill the position being offered to the foreign worker. As such, any U.S. applicants who are rejected during the process must be rejected for lawful job-related reasons. Although the regulations require a test of the labor market, there is no requirement that a qualified candidate actually be offered the position. This dichotomy highlights the tension between the requirement for good faith recruiting to merely test the labor market, and not actually fill the position (which presumably has already been filled by the foreign national).

If the employer determines that no qualified U.S. worker can be found, the employer then files a PERM application. Upon review by the Certifying Officer (CO), the application may be certified, audited, or denied. If audited, the CO will typically request documentation of the recruitment process. Another likely request during the audit is the showing of business necessity for requiring certain level or type of education or experience. The CO may also may require a supervised recruitment, in which case, the employer will have to conduct another round of recruitment.

If the PERM application is ultimately denied, the employer may choose to file a motion to reconsider with the CO or appeal the CO's decision to the Board of Alien Labor Certification Appeals (BALCA). If the appeal is denied by BALCA, review can be sought in federal court. Published BALCA cases therefore provide guidance to employers and counsel regarding the nuances of the PERM requirements, interpretations of the regulations, and practical considerations to navigate the labor market test in support of the permanent resident application.
 
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