Lawrence Weinstein, 2005-INA-9 (Feb. 10, 2006) (en banc)
- Household worker's paid experience cannot be established with experience with sponsoring Employer. The Board held that "an employer may not establish an alien’s one year of paid experience as a household domestic service worker under Section 656.21(a)(3)(iii) with documentation of experience obtained with a sponsoring employer."
HealthAmerica, 2006-PER-1 (July 18, 2006) (en banc)
- Showing actual compliance on reconsideration: The CO abused his discretion by refusing to consider newspaper tear sheets that an employer provided in its request for reconsideration, when the employer's Form 9089 contained a typographical error concerning the date of the newspaper advertisements and the tear sheets established actual compliance withe regulation on which the denial was based. The CO also abused his discretion when holding that the CO would only grant requests for reconsideration where DOL made the mistake.
- FAQs: FAQs may not impose substantive rules; whether an FAQ provides persuasive interpretative authority depends on the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.
- Letterperfect applications: PERM regulations (as originally promulgated) did not require applications to be "letterperfect."
- Remand authority: Raises, but does not resolve, the issue of whether BALCA has remand authority.
- HealthAmerica largely overruled in rulemaking: 2007 amendments to the PERM regulations state ETA's conclusion that BALCA misunderstood its intention to require letterperfect applications; to implement that intention, ETA amended the regulations to prohibit modifications to applications once submitted, and to impose evidentiary limitations on the documentation that may be used to support a motion for reconsideration. See 72 Fed. Reg. 27903 (May 17, 2007). Those amendments had the effect of overruling HealthAmerica's central ruling that the employer was permitted under the PERM regulations (as originally promulgated) to present with a motion for reconsideration documentation from its audit file establishing actual compliance with the substantive recruitment requirements of the regulations despite the appearance otherwise based on a typographical error on the Form 9089. Under the current regulations, a typo on the Form 9089 that indicates non-compliance with the regulations may itself be grounds for denial of certification. See, e.g., Sushi Shogun, 2011-PER-2677 (May 28, 2013) (finding that HealthAmerica had effectively been overruled by the promulgation of 20 C.F.R. § 656.11(b)).
Hawai'i Pacific University, 2009-PER-127 (Mar. 2, 2010) (en banc)
- Purpose of NOF: Notice of filing ("NOF") requirement imposed by the PERM regulations has the primary purpose of enabling the Secretary to receive documentary evidence bearing on the application as required by IMMACT90.
- Listing of wrong CO office on NOF: Where ample notice had been provided to the public of the appropriate CO's office to list on the NOF, the Board affirmed the CO's denial of certification based on the employer's error in listing an ETA regional office that no longer processed labor certification applications.
East Tennessee State University, 2010-PER-38 (Apr. 18, 2011) (en banc)
- "As qualified" standard for teaching profession jobs: CO erred in denying certification under 20 C.F.R. § 656.24(b)(2)(i) on the ground that the Employer rejected workers who were minimally qualified for the job; for jobs involving a member of the teaching profession, U.S. workers are considered qualified for the job only if they are at least as qualified as the alien.
- Excessive requirements in advertisements: Mandatory print advertisements which contain requirements that exceed the requirements listed on the ETA Form 9089 violate 20 C.F.R. § 656.17(f)(6).
- Preferences may be used in evaluating applicants, but not in advertisements for teaching profession jobs: Statutory provision allowing selection of the most qualified applicant for college and university teaching positions does not authorize use of preferences in recruitment supporting a PERM application; preferences may be used in evaluating qualifications of applicants for such positions.
Albert Einstein Medical Center, 2009-PER-379 (Nov. 21, 2011) (en banc)
- Record for appeal where direct appeal taken: Where the employers expressly and unambiguously chose to forego reconsideration by the CO and instead pursue direct appeals before BALCA, the consequence of that choice was that the employers could not supplement the record with argument or evidence that was not before the CO when the CO denied the application.
- Administrative notice: BALCA may take administrative notice of substantive adjudicative facts, but only where taking such notice would not undermine the regulations' restrictions on the scope of BALCA's review authority.
- Contextual application of Section 656.24(g): The PERM regulations permit a CO to deny certification without an audit; 2007 amendments to Section 656.24(g) introduced analytical and practical problems in addressing motions for reconsideration; Board adopts approach taken by panels in Denzil Gunnels, 2010-PER-628 (Nov. 16, 2010), and CVS RX Services, Inc., 2010-PER-1108 (Nov. 16, 2010), using contextual interpretation of Section 656.24(g)(2) to permit an employer to present evidence in response to issues that it did not have a prior opportunity to address where the evidence was not of the type that would have been found in an employer's "audit file."
- Standard and Scope of Review: BALCA engages in de novo review of the record upon which the CO denied permanent alien labor certification, together with the request for review, and any statements of position or legal briefs.
- Whether medical residency positions fit definition of "permanent" employment: "Permanent employment" under PERM connotes employment of indefinite duration, which carries two elements: lasting duration and assurance of continuation; a job that presents a limited term of employment is not of "lasting" nature; work of an indefinite duration is tested in part by whether the employer has a continuing need for the work to be performed and the capability to offer on-going employment; application of PERM regulations to medical residency positions is awkward because they do not fit the general labor market test environment on which the regulations were based; matter remanded for employer to have an opportunity to demonstrate that its job offers fit the definition of permanent employment.
Karl Storz Endoscopy-America, 2011-PER-40 (Dec. 1, 2011) (en banc)
- PWD validity period: CO properly denied certification where the employer neither began recruitment nor filed its application within the PWD validity period; for the purposes of Section 656.17(e) the "recruitment period" refers to the six-month period prior to filing.
A Cut Above Ceramic Tile, 2010-PER-224 (Mar. 8, 2012) (en banc)
- SWA job order documentation: Proof of publication of the SWA job order is not documentation that an employer is required to retain in support of a PERM application, and the CO may not deny certification under Section 656.20(b) based solely on failure to produce such documentation.
SAP America, Inc., 2010-PER-1250 (Apr. 18, 2013) (en banc)
- PWD request form: Failure to submit the PWD request form is not a "substantial failure by the employer to provide required documentation" under Section 656.20(b); regulations provide no notice to employers that they will be required to retain the PWD request as opposed to the PWD itself.
- What constitutes a 'substantial failure' under Section 656.20(b): BALCA will affirm denials under Section 656.20(b) when the "required documentation" an employer fails to produce is specifically identified in the regulations as the evidence necessary to document a particular attestation, i.e. the 'supporting documentation' an employer is required to retain under Sections 656.10(f) and 656.17(a)(3)). When the omitted "required documentation" is merely 'supplemental documentation' that is not specified in the regulations, BALCA will not summarily affirm denials issued under Section 656.20(b). Rather, it must find that "(1) the CO reasonably requested the omitted documentation (i.e., the documentation should have been readily, or at least reasonably, available to the employer, and tailored to the CO's review of the employer's application); and (2) the omission of this documentation is material enough to constitute a 'substantial failure . . . to provide required documentation.'"
- Required documentation in Section 656.20(b) is the documentation identified for production in an audit notification: BALCA finds that in A Cut Above, it conflated the 'supporting documentation' an employer must retain under Sections 656.10(f) and 656.17(a)(3) with the "required documentation" an employer must produce in response to an audit under Section 656.20(b). Rather, the plain language of the audit provision establishes that the "required documentation" referenced in subsection (b) relates back to the documentation in subsection (a), i.e., the documentation identified for production in an audit notification letter.
Island Holdings LLC, 2013-PWD-2 (Dec. 3, 2013) (en banc)
- H-2B PWD redeterminations: DOL regulations do not require an employer to comply with a PWD issued after the Department has approved and granted the employer's H-2B application.
- 79 Fed. Reg. 75179 (Dec. 17, 2014) (notice seeking comments on Secretary of Labor's proposal to issue a declaratory order to overrule BALCA's decision and legal conclusions in Island Holdings).
- Island Holdings LLC, 2013-PWD-2 (Nov. 13, 2013) (en banc) (BALCA does not have the authority to conduct a declaratory order proceeding in H-2B prevailing wage determination appeals)
- 85 Fed. Reg. 14706 (Mar. 13, 2020) (notice withdrawing Notice of Intent to Issue a Declaratory Order and accepting BALCA's en banc Island Holdings ruling.
Symantec Corp., 2011-PER-01856 (July 30, 2014) (en banc)
- Additional professional recruitment content requirements: CO may not deny a PERM application for a position involving a professional occupation on the ground that an "additional" recruitment step does not comply with the advertising content requirements in 20 C.F.R. § 656.17(f)(6).
- Rejection of en banc ruling on issue not thoroughly analyzed or necessary for resolution of appeal: Although the Board in East Tennessee State University indicated in a footnote that an advertisement placed in fulfillment of an additional recruitment step must not include requirements not listed on the Form 9089, BALCA found that this conclusion was not binding because the issue had not been raised or briefed by the parties in East Tennessee, the ruling was not necessary to the resolution of that appeal, and the Board did not analyze the scope of § 656.17(f) in any depth.
Tera Technologies, Inc., 2011-PER-2541 and 2012-PER-55 (Aug. 28, 2014) (en banc)
- NOF content requirements: Requirement of 20 C.F.R. § 656.10(d)(4) and 656.17(f)(1) that a notice of filing must explicitly state the name of the employer may be strictly enforced by the CO.
Simply Soup Ltd., 2012-PER-940 (Jan. 13, 2015) (en banc)
- Recruitment report must describe recruitment steps undertaken: 20 C.F.R. § 656.17(g)(1) plainly requires preparation of a discrete signed recruitment report that describes the recruitment steps undertaken, even if the recruitment steps could be easily verified by the CO through review of the documentary evidence submitted with an audit response and the attestations made on the Form 9089.
- Failure to submit complete report with audit response cannot be remedied by submitting missing portion of report on reconsideration: Pursuant to the evidentiary limitation at 20 C.F.R. § 656.24(g)(2), an inadvertent failure to provide a complete recruitment report with an audit response cannot be cured through submission of the missing documentation with a motion for reconsideration.
MSA Partners, 2012-PER-01232 (Nov. 30, 2016) (en banc)
- Issuance of audit notification after filing of request for review. The Board granted en banc review to determine whether, under the facts of the case, the Certifying Officer properly issued an Audit Notification rather than forwarding the case to the Board after the Employer asked for review. In its en banc brief, the Certifying Officer effectively conceded that it should not have issued the audit notification.
- Actual minimum requirement; Aliens’ qualifications at time of hire. The CO denied the application on the ground that the Form 9089 did not show that the Alien met the job requirements prior to hire, i.e., either the principal requirement of a Master’s degree or the alternative requirement of Bachelor’s degree and five years’ experience. Employer’s arguments failed to address how the Alien qualified for the job requirements stated in the Form 9089 at the time of hire, and instead focused on an issue not raised by the CO (whether the primary and alternative requirements were substantially equivalent). The Board thus affirmed the denial.
Arbin Corp., 2013-PER-00052 (Aug. 7, 2020) (en banc)
- De novo review authority; procedural due process not violated where BALCA decision was based on a regulation not cited by the CO, but which was briefed by Employer. The CO found that Employer’s newspaper advertisement did not disclose a travel requirement, and therefore violated 20 C.F.R. 656.17(f)(3), because it did not provide a description of the job vacancy specific enough to apprise U.S. workers of the job opportunity. A three-judge BALCA panel affirmed the denial, but instead relied on 20 C.F.R. 656.17(f)(4) as the governing regulation. Upon en banc review, the full Board agreed with the panel that § 656.17(f)(4) was the apposite regulation. The full Board also found that, and under the facts of the case, the panel’s reliance of this regulation was not a violation of Employer’s procedural due process rights, Employer having addressed (f)(4) in its motion for reconsideration and its appellate brief. The Board ruled that "[p]rovided that an employer is not denied a full and fair opportunity to present its case . . . it is within BALCA’s de novo review authority to base our decision on a regulation not cited by the CO." Slip op. at 5. Given the Board’s de novo review authority, the full Board found that the panel’s “affirmance of the denial on a different paragraph of the same regulation relied on by the CO did not prevent the Employer from obtaining a labor certification that should have been granted.” Slip op. at 6-7 (footnote omitted).
- Newspaper advertisement must “sufficiently” apprise applicants of travel requirement and not merely allow savvy applicants to surmise as much. Employer’s newspaper advertisement did not disclose that service on its battery testing systems requires travel by the Customer Support Engineer position for which certification was sought. The regulation at § 656.17(f)(4) states that an advertisement must “[i]ndicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.” The Board stated that it “agree[s] with the Employer and AILA that the regulation focuses on the geographic area of employment, and not on the specifics of the travel required.” The Board further “agree[d] with the CO and AILA that § 656.17(f)(4) requires a fact-specific analysis.” Under the facts of the case, the Board found that the newspaper advertisement could not reasonably be construed as identifying the geographic area of employment sufficient to apprise applicants of travel requirements, even though some savvy job applicants may have been able to figure it out.
Smalls Ins. Agency, Inc., 2013-PER-01380 (Sept. 29, 2020) (en banc)
- De novo review by BALCA under regulation not cited by the CO. The Board applied Arbin Corp., 2013-PER-00052 (Aug. 7, 2020) (en banc), to a situation where the CO had cited an inapposite regulation, 20 C.F.R. § 656.21(e)(4), which only applies to supervised recruitment. The BALCA panel cited instead the apposite regulation at 20 C.F.R. § 656.10(c)(9), and Employer had extensively argued its compliance with 20 C.F.R. § 656.10(c)(9).
- Board applies pre-PERM Gorchev & Gorchev decision to PERM cases; Employer must interview applicants whose resumes indicate reasonable prospect of meeting Employer’s actual minimum requirements. The Certifying Officer denied certification for an Accounting Associate due to Employer’s failure to interview two potentially qualified applicants for the job opportunity. In the instant case, Employer’s Form 9089 application stated that, in addition to its primary and alternative requirements, it would also accept “any suitable combination of training, education and experience equivalent to primary job requirements as specified in Section H.” The Board noted that an employer may only reject U.S. worker applicants for lawful job related reasons, and although it may sometimes be clear on the of a resume that that a U.S. applicant does not meet the job requirements, if the resume indicates that he or she meets the broad range of experience, education, and training required for the job, thus raising the reasonable prospect that he or she meets all of the employer’s stated actual requirements, the employer has a duty to make a further inquiry, by interview or other means, into whether the applicant meets all of the actual requirements. Gorchev & Gorchev Graphic Design, 1989-INA-00118, slip op. at 2 (Nov. 29, 1990) (pre-PERM).
- Employer cannot nullify “Kellogg” language in Form 9089 H.14 by stating otherwise in Form H.8. The en banc panel rejected Employer’s argument that its response to Form 9098, H.8, that “an alternate combination of education and experience” was not acceptable, nullified the “Kellogg” language found in H.14. that that it would “accept any suitable combination of training, education and experience equivalent to primary job requirements as specified in Section H.” The Board found that Employer created the ambiguity, and that the Board would consider the “Kellogg” language when evaluating whether Employer complied with § 656.109(c)(9).
- Kellogg language requires a “combination” of education and experience; an applicant lacking any related experience may be rejected without an interview. Under the facts of the case, the full Board found that the three-judge panel erred in finding that one of the applicants was unlawfully rejected where the resume showed that the applicant lacked any experience in accounting or a related field – thus not fitting the Kellogg “any suitable combination” criterion. The Board, however, agreed with the three judge panel that Employer had not shown that the other applicant was lawfully rejected without an interview. The Board was not persuaded by Employer’s assumption, without supporting evidence, that this second applicant’s experience had been in merely in sales.
Clarksdale Mun. Sch. Dist., 2014-PER-00330 (Oct. 29, 2020) (en banc)
- Actual minimum requirements for teaching license; error for CO to impute a minimum requirement for a secondary mathematics license when such was not required in the Form 9080 application. Employer’s application indicated in Section H-14 that applicants for its Secondary School Mathematics Teacher position (for grades 9 through 12) must possess a valid teaching certificate/license for the State of Mississippi. The CO argued that the Alien lacked a valid license to teach mathematics at secondary school, or to grades 9 to 12, prior to being hired, and thus, the Employer did not represent its actual minimum requirements on the Form 9089. The full Board, while declining to express an opinion on whether it was appropriate to do, found that Employer’s Form 9089 only required a license or certificate to teach mathematics issued by the state of Mississippi, which the Alien possessed at the time of hire, and not a requirement for such a license for secondary mathematics, which the Alien only obtained more than seven months after hire. The Board stated: “It was error for the CO to impute a minimum requirement for the job opportunity where no such requirement existed, then deny the Application pursuant to 20 C.F.R. § 656.17(i)(1) because the Alien did not possess that requirement.” Slip op. at 6. The Board thus remanded the matter for certification.