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.

Continue Reading BALCA Finds Employer’s Duty to Investigate Further The U.S. Applicants’ Qualifications

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.
Continue Reading What is PERM?

On Aug. 13, 2012, the U.S. Citizenship and Immigration Services (USCIS) announced that the most recent version of Form I-9 remains valid notwithstanding the OMB expiration date of Aug. 31, 2012 (located in the upper right hand corner on the form). Until further notice, the current form, which was last revised on Aug. 7, 2009 (located

The Supreme Court has issued its long awaited decision on the constitutionality of the Arizona Immigration law known as SB 1070. The case came before the Court following a decision by the lower courts to grant a preliminary injunction enjoining the application of four provisions of the Arizona law.
Continue Reading The Supreme Court Provides a Mixed Review of the Arizona Immigration Laws

On September 12, 2011, U.S. Citizenship and Immigration Services changed their long standing practice for the distribution of original approval notices for petitions and applications seeking immigration benefits, including the change or extension of nonimmigrant stay. Notices have previously been sent to counsel of record, but now are sent directly to the petitioner or applicant. Employers and individuals have immediately noted several unattended consequences of this change in long-standing policy.

Many approval notices include a revised or extended Form I-94, Arrival and Departure Record. This original document advises foreign nationals of their current nonimmigrant status and the date on which that status expires. Many governmental agencies, including the state motor vehicle departments, will not provide services to foreign nationals (for example, a driver’s license) unless the original document is provided. The distribution to the petitioner, usually the employer, complicates this process.

Continue Reading USCIS Change in Mailing Procedures Has Substantive Impact upon Employers and Foreign National Employees

Today, the Justice Department announced that it has filed a lawsuit against Farmland Foods, Inc., a major producer of pork products based in Kansas. The lawsuit, which will be heard by an Administrative Law Judge, alleges that the employer engaged in unlawful discriminatory acts by requiring foreign born and non-citizen employees to provide additional documentation of employment authorization beyond what was required by law and the documents required from U.S. citizens. While we have not yet heard the full facts or Farmland Food’s position, the lawsuit highlights the fine line employers must walk to satisfy both the obligation to verify employment eligibility for all employees, and avoid unfair discrimination against employees born in other countries or with foreign sounding names.

Continue Reading Department of Justice Complaint Against Farmland Foods Highlights Fine Line Employers Must Walk In Evaluating Employment Authorization Documents