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BALCA Clarifies How Employers May Use One Advertisement to Support Multiple Labor Certification Applications

By |2019-07-16T15:06:57+00:00July 16th, 2019|Categories: Green Cards|Tags: , |

In a recent case, the Board of Alien Labor Certification Appeals (“BALCA”) revealed the potential problems of using one advertisement to support multiple applications and how employers may avoid these potential issues. In Capgemini America Inc., 2013-PER-02219 (May 29, 2019) the employer submitted an Application for Permanent Employment Certification (“Form 9098”) for the position of “Computer Systems Analyst.” The employer’s recruitment materials for this application all advertised multiple “IT openings” and listed numerous job requirements, some of which were not listed on the Form 9098. BALCA affirmed the Certifying Officer’s denial, explaining what while employers may use a single advertisement to support multiple applications, the advertisement must make clear if some of the listed job duties apply to only certain positions. Since the advertisements in question did not clarify which of the listed job duties applied to only some positions, the advertisements failed to apprise U.S. workers of the job offered. This case is thus a reminder that when using a single advertisement to support multiple applications with divergent job duties, employers must carefully draft their advertisements to specific when some of the listed job duties do not apply to all of the job openings.

BALCA Clarifies How an Employer Can Satisfy its Obligation Regarding Possible On-the-Job Training

By |2019-05-07T20:12:23+00:00May 7th, 2019|Categories: Green Cards, Green Cards|Tags: , |

The Board of Alien Labor Certification Appeals (“BALCA”) recently suggested how an employer may demonstrate that on-the-job training is necessary for a position. In Microsoft Corp, 2014-PER-00615 (February 25, 2019) the employer rejected an applicant after an interview, finding the applicant was not sufficiently familiar with Scripting, C++, HTML, and Window as required. The Board affirmed the denial and held that the employer had failed to adequately document that the applicant could not qualify after a reasonable period of on-the-job training. BALCA stated that “more than a bare assertion is needed to prove that it is infeasible to train new workers within a reasonable period of on-the-job training.” The court then explained that an employer may demonstrate that on-the-job training is required in the following ways: documentation from a vocational expert comparing the exact job requirements in the ETA Form 9089 to Applicant C.P.’s education, knowledge, experience, and skills; industry experts explaining the minimal requirements necessary to commence work in the position and why training in noted deficiencies is an not acceptable course of action; or an affidavit of the hiring official detailing the deficiencies noted with the basic job requirements and establishing a business necessity as to why the deficiencies cannot be corrected with any period of on-the-job training. While some experts argue that this case is overreaching, the case is nonetheless a reminder that employers should explain in detail why on-the-job training is required for a particular position when denying an applicant on this ground.

BALCA Upholds Denial where Employer Failed to Interview a Potentially Qualifying U.S. Applicant

By |2019-03-18T10:47:06+00:00March 18th, 2019|Categories: Green Cards|Tags: , |

The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether an employer should interview an applicant during the recruitment process in The Bank of Tokyo-Mitsubishi UFJ, LTD. In this case, the Employer filed an Application for Permanent Employment Certification (“ETA From 9089”) for the role of “Analyst/Systems Specialist-Systems Office for the Americas.” The case was audited and denied on the basis that the Employer unlawfully rejected a potentially qualified U.S. applicant without an interview. BALCA upheld the denial. First, the Employer required an Associate’s Degree “in any field” or 36 months of experience in “[r]elated tech exp w/systems analysis, design&dvlpt [sic], w/.NET, C#, C, C++, VBA.” Therefore, the fact that the Applicant did not list an Associate’s Degree on his or her resume was not an appropriate basis of disqualification. Second, the Applicant had more than 15 years of software development experience so it was reasonable to conclude that he may have 36 months of experience in the necessary skill sets. Notably, BALCA also rejected the Employer’s argument that the Applicant was not qualified because he had experience in “SQL programming language” and the Employer required technical development experience with “SQL Server (AF11).” BALCA explained that this did not matter because Section H of the ETA From 9089 did require experience with a particular type or version of SQL. This case is thus a sobering reminder that employers should error on the side of caution and interview (or inquire further regarding) possibly qualifying U.S. applicants.

Latest BALCA Decision on Requiring Travel

By |2012-03-09T22:40:55+00:00March 9th, 2012|Categories: Green Cards|Tags: , , , |

Read the latest BALCA decision and then openly weep for the state of our employment based immigration system. In this case, the DOL Certifying Officer denied a PERM case on the basis that the ad language stated "may require employer-reimbursed travel" instead of "some positions may require travel" and determined that US workers could be confused by such language and not be aware that travel may be required. I'm sorry but, if you are mis-led by that language, you do not deserve consideration for employment in any job. The fact that the Certifying Officer even thought there may be confusion is beyond comprehension. Fortunately, BALCA ruled in the employer's favor and ordered the case to be certified but, the appeal took almost 2 years and the overall case has been pending for almost 4. Sadly, of the 3 government agencies most involved in business immigration cases, the DOL, in spite of decisions like this is still light years ahead of the USCIS and the US Consulates (DOS)  in following the law without prejudice and in operating efficiently.

Seriously ?!?!?!? A PERM denial for what ?

By |2011-06-28T23:14:38+00:00June 28th, 2011|Categories: Green Cards|Tags: , , |

And you thought you got a denial on a PERM case for a crazy reason, check this out. In a recent decision that makes you shake your head,  BALCA overturned  the denial of a PERM application by the Certifying Office (CO). The Certifying Office had declared that it did not believe that the employer had a physical location because the employer used a Post Office box to receive mailings. The employer was Tarleton State University, a fact that frankly, I think is pretty definitive on the issue but, that, the CO ignored. In its decision, BALCA pointed out to the CO that the employer had 950 employees and a campus, pretty clear evidence of a physical location. Further, in a pointed conclusion, BALCA noted, " as there is no indication that the CO actually reviewed the merits of this application, the most appropriate remedy is to remand this case to the CO for continued processing." Kudos to BALCA for this decision, unfortunately, the case has been pending since 2009 so the wheels of justice are certainly turning slowly.  

BALCA Rules on Recruitment and PWD Validity

By |2011-06-08T21:07:47+00:00June 8th, 2011|Categories: Green Cards|Tags: , , |

On May 25, 2011, The Bureau of Alien Labor Certification Appeals (BALCA), where most PERM cases go to die, finally issued a great decision that clarified a grey area!  See Horizon Computer Services, Inc.  (BALCA No. 2010-PER-00746).  DOL recently began denying cases in which recruitment began before the validity of the PWD.  DOL's reading of the regulations conflicted with the way many attorneys interpreted the regulations at 20 CFR Section 656.40(c) and a handful of cases went up on appeal for this issue.  DOL argued that ALL recruitment must occur within the validity of the PWD.  Many practitioners argued that only SOME of the recruitment must occur within the validity of the PWD.  BALCA sided with us and clarified that as long as SOME of the recruitment occurs during the validity of the prevailing wage determination, the recruitment is in compliance with 20 CFR section 656.40(c).  Not ALL of the recruitment needs to occur within the validity of the prevailing wage determination.  Some recruitment can occur before the validity. We look forward to  BALCA remanding other similar cases that are also on appeal, back to the DOL for approval!

BALCA says play fair !

By |2011-04-19T23:18:04+00:00April 19th, 2011|Categories: Green Cards|Tags: , , , , , |

In two BALCA decisions released this week, the Board overturned denials of PERM cases and ordered the Certifying Officer to re-consider,  basing  both decisions on the  doctrine of fundamental fairness.  One of the cases involved the area of intended employment. In that case, the job offer listed the geographic location in the ETA 9089 as Spartanburg, SC however, the Job Order and advertisment dircted applicants to Inman, SC. Originally, the CO denied the case claiming that the job location was not properly described in the recruitment activities. The fact that Inman is a suburb of Spartanburg and located a mere 7 miles distant did not persuade the CO. However, reason and common sense prevailed at BALCA.  And, not to throw cold water on the party but, the appeals process only took a mere 18 months and the PERM has only been pending  since 2007.  The second case has facts that are hard to believe and made me just shake my head at my tax dollars at work.  The CO denied the case  because  they were unable to verify that the employer was truly sponsoring the foreign national. As proof of their attempts to communicate with the employer, they indicated that they had made phone calls on 4 occasions. Sounds sufficient to me until they disclosed that all 4 calls were over a 2 1/2 week period that included 2 days before Christmas and a call on New Year's Eve.  No voice mails were left and no emails sent. Turns out the employer contact was on vacation during the holidays and that explained the failure to answer the phone.  What is so sad is that the employer explained all of this a mere 3 weeks after the denial and still the CO refused to re-open the case thus requiring the employer to file the appeal and now, 15 months later, the right decision has been made [...]

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