January 2016
UBS Securities LLC , 2012-PER-00845 (Jan. 8, 2016)
Issue - Alternative experience – equivalency
Decision – CO reversed
The CO denied the application because he concluded that the employer’s alternative experience requirement of a Master’s degree and 36 years of experience was not substantially equivalent to the primary experience of a Bachelor’s degree and 5 years’ experience. On reconsideration, the employer argued that the reference to years rather than months of experience was the product of a typographical error that was attributable to the confusing structure of the Form 9089 which requests alternate experience in terms of months where the instructions indicate it should be expressed in years. The CO reaffirmed his denial noting that the employer could not modify its application based on 20 C.F.R. § 656.11(b).
The Board (Henley, Almanza and Davis) reversed finding that it would be fundamentally unfair to rigidly apply § 656.11(b) in the face of the confusing structure of the Form particularly where there was no evidence that the employer acted in bad faith to limit the number of domestic applicants.
Cummins Emission Solutions Inc. , 2012-PER-00972 (Jan 8, 2016)
Issue - Failure to comply with CO instructions in supervised recruitment
Decision – CO reversed
The CO denied because the employer modified the advertising that had been approved by the CO in a supervised recruitment (SR) case. On reconsideration, the employer argued that the changes were not significant and were required by the organization where the ads were being placed. It further noted that while it notified the CO of the changes by email, it could not wait to get CO’s approval since the CO had imposed a fifteen day deadline to run the ads. The CO reaffirmed his position observing that the employer could have requested an extension of time to run the ads while it awaited CO approval for the changes.
The Board (Almanza, Davis and Henley) reversed. The panel noted that the instructions given to the employer concerning seeking extensions of time within the SR process were unclear as to whether they applied to the 15 deadline for running the ads. Therefore, under the circumstances, the employer’s email to the CO noting the changes being made to advertisements was sufficient. The decision also noted that the CO appeared to have abandoned any suggestion that the changes that were made to the advertising might be problematic.
Waterside Construction, LLC , 2012-PER-01603 (Jan. 8, 2016)
Issue - Disclosure of alternative minimum job requirements
Decision – CO affirmed
The CO denied the application because the employer’s newspaper advertising did not include the alternative job requirement of an Associate’s degree that was included of the Form 9089. On reconsideration the employer argued that the ad satisfied the requirements of 20 C.F.R. § 656.17(f). The CO reaffirmed the denial concluding that the employer had violated both § 656.17(f), and its attestation under 20 C.F.R. § 656.10(c)(8) that the job was clearly open to domestic workers.
The Board (Henley, Almanza and Merck) affirmed. While noting that analysis of the case was complicated by the CO’s use of a variety of different regulatory references, juxtaposed with the employer’s misinterpretation of the denial grounds, the panel ultimately concluded that the employer’s failure to disclose the actual minimum requirements for the position violated the cited regulations, noting in particular that overstating the minimum job requirements violates the § 656.17(f) mandate that ads “sufficiently apprise” U.S. workers of the job opportunity.
MPHASIS Corp. , 2012-PER-00657 (Jan. 8, 2016)
Issue - Experience as alternative to Bachelor’s degree - equivalency
Decision – CO affirmed
The CO denied the application because the alternate requirement of 12 years’ experience was not substantially equivalent to the principle requirement of a Bachelor’s degree. The employer argued on reconsideration that experience gained without a Bachelor’s degree should not have the same value for SVP purposes as experience gained with a degree. The CO affirmed the denial.
The Board (Henley, Almanza and Merck) affirmed. The panel noted the well-established principle that the Board will look at the SVP values of the primary and alternate experience as a measure of equivalency. Since the Bachelor’s degree translates to 2 years’ experience for SVP purposes, the employer’s alternative of 3 years of work experience for each missing year of college was not substantially equivalent.
Stein, Sperling, Bennett, De Jong, Driscoll, et. al , 2012-PER-00650 (Jan. 8, 2016)
Issue - Alien did not meet minimum requirements at the time of hire
Decision – CO affirmed
The CO denied the application because the alien did not meet the job requirements at the time of hire. The job required a Master’s degree which the alien obtained two years after his initial hire. On reconsideration the employer argued that the alien had been initially hired into an internship position that was not “substantially comparable” to the position for which certification was sought. The employer conceded that the alien’s experience could have been better described on the Form 9089. The CO treated the effort to recharacterize the alien’s initial position as new evidence which could not considered, and affirmed the denial.
The Board (Henley, Almanza and Davis) affirmed. The panel agreed with the CO that employer was precluded from amending the application to redefine the alien’s experience or to offer new evidence with respect to that issue. The Board rejected the employer’s argument that the alien possessed the required degree at the time the application was filed noting that such an interpretation was inconsistent with a plain reading of the regulation. The decision also rejected the employer’s argument that language in 20 C.F.R. § 656.17(i) referencing “training and experience” precluded the CO from basing a denial on educational requirements.
RLJ Borowide Automotive Service, Inc. , 2012-PER-01239 (Jan. 8, 2016)
Issue - Content of the NOF – CO’s address
Decision – CO affirmed
The CO denied the application because the NOF did not contain the correct address for the CO. On reconsideration the employer argued that the two government offices that were identified on the NOF could have directed any communication to the CO in Atlanta. The CO reaffirmed the denial.
The Board (Henley, Almanza and Davis) affirmed relying largely on the decision in Hawai’i Pacific University , 2009-PER-127 (Mar. 2, 2010) (en banc). The decision also noted that ETA had posted ample notice in the Federal Register and on its website identifying the appropriate CO in order to permit employer’s to comply with their obligation under 20 C.F.R. § 656.10 (d)(3)(iii).
NCSOFT Corp. , 2012-PER-01024 (Jan. 8, 2016)
Issue - Inclusion of applicant addresses in recruitment report
Decision – CO affirmed
The CO denied the application because the recruitment report did not contain the addresses of all the domestic applicants. The employer argued on reconsideration that the missing addresses were on resumes supplied to the employer by the CO during supervised recruitment, and, since the regulations did not require the employer to supply those resumes with the report, it should not be penalized for not including the applicants’ addresses. The employer also relied upon the holding in Nathan Littauer Hospital , 2010-PER-1066 (Aug. 16, 2011) for the proposition that errors on the Form 9089 can be forgiven if the necessary information can be readily determined from the totality of the application. (The CO concluded that the denial was valid.
The Board (Henley, Almanza and Davis) affirmed. The panel noted that both the regulations and CO’s instructions explicitly required that the recruitment report include the addresses of all applicants. The decision noted that the language permitting the employer to forego providing resumes that had been supplied by the CO did not apply to the requirement for a complete list of addresses. The decision distinguished Nathan Littauer , noting that the addresses of the domestic applicants were not readily determinable. The decision noted the substantial case law affirming the need for a complete recruitment report including a discrete listing of the names and addresses of applicants.
AT&T Inc. , 2012-PER-01050 (Jan. 8, 2016)
Issue - Inclusion of applicant addresses in recruitment report
Decision – CO affirmed
The CO denied on a number of grounds but the Board decision focused only on the employer’s failure to provide a complete list of the names and addresses of the domestic applicants in the recruitment report. With respect to this issue, the employer argued on reconsideration that the addresses could be found on the resumes which were submitted as part of the report.
The Board (Henley, Almanza and Merck) affirmed relying on the substantial precedent holding that the employer must submit as part of its recruitment report a discrete list of the names and addresses of the domestic applicants and the fact that this information can be found on the resumes is not a substitute for the list.
Yona Corp. , 2012-PER-00982 (Jan. 8, 2016)
Issue - Identification of the CO in the NOF; employer signature on the recruitment report
Decision – CO affirmed
The CO denied on three grounds only two of which were addressed by the Board; the attorney, rather than the employer, signed the recruitment report and the NOF did not contain the CO’s address. On reconsideration the employer argued that the attorney was the agent for the employer and was authorized to sign the report and further contended that the NOF did contain the CO address.
The Board (Henley, Almanza and Davis) affirmed. The decision rejected the employer’s assertion the CO’s address was included in the NOF noting that the employer was relying on letter sent to the CO, and not the actual NOF. With respect to the recruitment report, the decision noted that the employer had failed to establish that the attorney was the appropriate representative under 20 C.F.R. § 656.10(b)(2)(ii) and therefore he was not permitted to sign the report.
PT Thomas, Inc. , 2012-PER-00897 (Jan. 12, 2016)
Issue - Wage range on application not reflected on NOF; multiple denials
Decision – CO affirmed
The CO denied on multiple grounds in two different determinations. The Board focused on one ground from the second denial. The CO denied because the Form 9089 contained a wage range whereas the NOF contained only the low end of the range in violation of the employer’s obligation to offer the job to domestic workers on the same terms offered to the alien. 20 C.F.R. § 656.17(f). On reconsideration the employer argued that the alien was actually paid the wage listed on the NOF and that the inclusion of the wage range was optional and should be ignored.
The Board (Almanza, Davis and Henley) affirmed. The decision initially rejected the employer’s argument that the CO was precluded from issuing a second denial citing a number of cases accepting that practice. With respect to the merits, the decision noted that a denial was appropriate unless the employer could show that alien actually was paid the wage listed on the NOF. While the employer asserted that he was, there was no evidence in the record to support that assertion.
Pleasant Hill Manor , 2012-PER-00992 (Jan. 13, 2016)
Issue - Documentation of web advertising
Decision – CO affirmed
The CO denied because the employer failed to adequately document its web advertising. The employer placed its print ads in the Contra Costa Times . The Times had an arrangement with Monster.com which provided that it would post classified published by the Times . The employer was required to supply the CO both with copies of the newspaper ads and dated copies of the website pages in which ads appeared. In response to this latter requirement, the employer supplied an email from Monster indicating that the ad would appear on Monster. The CO found this insufficient to verify the content of the ad or the specific dates of its posting. On reconsideration the employer argued that it was “common knowledge and standard practice” that under the arrangement between the newspaper and Monster, the print ads and the online ads would be identical. The employer also supplied a copy of the online advertisement reflecting both its content and duration. The CO reaffirmed the denial noting that assertions of “common knowledge” did not satisfy the employer’s responsibility to document its recruitment efforts. The CO determined that material submitted could not be considered because of the restrictions contained in 20 C.F.R. § 656.24(g).
The Board (Geraghty, Calianos and McGrath) affirmed agreeing with the CO that he cannot assume a fact based on the employer’s assertion of “common knowledge” or “industry practice” in the absence of other documentation. The panel also agreed that the CO had properly rejected the argument that the fact the employer had received responses to the online posting was sufficient since that information did not establish either the content or duration of the posting. Lastly, the panel agreed that the employer’s effort to document its compliance during reconsideration ran afoul of § 656.24(g)
Thamani Co. , 2012-PER-01054 (Jan. 15, 2016)
Issue - Advertising deficient
Decision – CO affirmed
The CO denied the application because the employer did not place an ad in either a newspaper or a journal.
The Board (Romero, Price and Kennington) affirmed. The panel rejected the employer’s argument that the unique nature of the diamond industry justified its recruiting exclusively through the American Institute of Diamond Cutting. The panel agreed with the CO that while the employer may recruit through any additional channels it desires, it must still comply with the minimum advertising requirements set forth in 20 C.F.R. § 656.17.
Terres Technology, Inc. , 2012-PER-00977 (Jan. 15, 2016)
Issue - Use of professional journal
Decision – CO affirmed
The CO denied the application because the employer placed one Sunday newspaper ad and journal ad. Since the job opportunity did not require an advanced degree plus experience, the employer was required to place two Sunday ads.
The Board (Calianos, Geraghty and McGrath) affirmed for the reasons set forth by the CO observing that the employer’s reliance on EPI Limited Partnership , 2008-PER-00004 (Apr. 28, 2008), was misplaced.
Jarabacoa Food Corp. , 2012-PER-00820 (Jan. 15, 2016)
Issue - NOF location of posting
Decision – CO affirmed
The CO denied the application because the employer failed to identify where the NOF had been posted. On reconsideration the employer argued that there was a typographical error in the audit response letter concerning the NOF and that the notice had been posted on the employer’s premises.
The Board (Henley, Almanza and Davis) affirmed, noting that even if the employer’s clarification of its audit response was accepted, the employer still failed in its obligation to identify the location of the posting.
Muse Design Inc. , 2012-PER-01088 (Jan. 15, 2016)
Issue - Proof of alien’s qualifications
Decision – CO affirmed
The CO denied the application because the employer failed to timely supply proof of the alien’s qualification for the position. While the required information was supplied on reconsideration, it could not be considered because of the evidentiary limitations found at 20 C.F.R. § 656.24(g).
The Board (Henley, Almanza and Davis) affirmed. The decision deals with three distinct issues. It rejected the employer’s argument that the CO was not permitted to demand documentation of the alien’s qualifications for the position citing both BALCA and district court precedent for the legitimacy of such a request. The decision also rejected the argument that the CO had improperly demanded the alien’s resume (which did not exist) noting that the CO’s decision was based on the employer’s failure to timely establish the alien’s qualification rather than on the format of that proof. Finally the panel concluded that the record did not support the employer’s contention that proof of the alien’s qualifications had actually been included in the audit response.
Linedata Services Inc. , 2014-PER-01413 (Jan. 19, 2016)
Issue - Content of Web advertising – Symantec
Decision – CO reversed
The CO denied the application because the employer failed provide full copies of the employer’s website posting which were necessary to determine the employer’s compliance with 20 C.F.R. § 656.17(f).
The Board (Henley, Almanza and Merck) granted the employer’s motion to remand for the purposes of granting certification consistent with the ruling in Symantec Corp. , 2011-PER-1856 (Feb 11, 2014) (en banc). The decision noted in a footnote that the ruling should not read to relieve the employer of its obligation to prove that recruitment had actually been conducted. In this case, however, the CO was seeking information expressly for the purpose of assessing compliance with § 656.17(f) and therefore the case was controlled by Symantec .
AMR Capital Trading Corp. , 2012-PER-00609 (Jan. 19, 2016)
Issue - Offered wage above advertised wage; job clearly open to U.S. workers
Decision – CO affirmed
The CO denied the application because the wage set forth in the job order was well below the offered wage listed on the Form 9089. The CO relied on both 20 C.F.R. § 656.10 (c) and 656.17(f) in support of the decision. On reconsideration the employer argued that because of how the job order was structured it would be apparent that the wage identified was not the minimum.
The Board (Henley, Davis and Merck) affirmed. While consideration of the case under § 656.17 (f) was precluded by Symantec Corp. , 2011-PER-1856 (Feb 11, 2014) (en banc), the panel evaluated whether the position was clearly open to U.S. workers under § 656.10 (c)(8) as discussed in The China Press , 2011-PER-2924 (Aug. 20, 2015) vacated on other grounds (Nov. 30, 2015). That decision held that advertising with a wage significantly below the wage offered the alien violated § 656.10(c)(8). The panel rejected the employer’s argument that it would be apparent that the wage contained in the job order was not the actual minimum noting that it was implausible that a person viewing the job order would realize that and, furthermore, the employer could have easily avoided the problem by listing a wage range.
Montessori Community School at Brookfield, Inc. , 2012-PER-00808 (Jan. 19, 2016)
Issue - Rejection of domestic applicant; obligation to inquire
Decision – CO affirmed
The CO denied the application because the employer rejected, without an interview, a domestic applicant who was qualified for position but who the employer assumed was not truly interested in the position.
The Board (Henley, Davis and Merck) affirmed based on long established case law holding that employers seeking certification must follow-up with facially qualified applicants and may not make assumptions about their actual interest in the positon.
Cyberthink, Inc. , 2012-PER-00864 (Jan. 19, 2016)
Issue - Incomplete application; documentation of alien experience
Decision – CO reversed
The CO denied the application because the employer left section K blank thus making it impossible to determine if the alien met job requirements. On reconsideration the employer argued that it was sufficient that it had checked “yes” to question J-18 asking whether the alien met the required qualifications. It also supplied proof of the alien’s experience. The CO reaffirmed his denial noting that the employer’s failure to fill out section K rendered the application incomplete and the documentation supplied could not be considered because of the evidentiary restriction found at 20 C.F.R. § 656.21(g).
The Board (Henley, Almanza and Merck) affirmed. While noting that the CO was wrong in applying § 656.21(g) because reconsideration was, in this case, the employer’s first opportunity to submit the documentation, the panel found that the documentation did not remedy the fact that the application was incomplete, and treating the information as a request to modify the application ran afoul of 20 C.F.R. § 656.11(b).
Pinnacle Technical Resources, Inc. , 2012-PER-00130
Issue - Content of the job order; Symantec
Decision – CO reversed
The CO denied the application pursuant to 20 C.F.R. § 656.17(f) because the job description in the job order differed markedly from the job description on the Form 9089.
The Board (Henley, Almanza and Merck) reversed, relying on Symantec Corp. , 2011-PER-1856 (Feb 11, 2014) (en banc).
Fort Bend Independent School District , 2012-PER-00918 (Jan. 29, 2016)
Issue - Location of NOF posting
Decision – CO affirmed
The CO denied the application because the NOF was posted at the school district’s main office, and not at the school where the position was located. On reconsideration the employer argued that the location was appropriate since it was a central meeting point for all employees and received the most foot traffic of any building in the system.
The Board (Henley, Davis and Merck) affirmed, noting that while the posting at headquarters was consistent with the employer’s obligation to utilize normal procedures for recruitment, compliance with that provision did not relieve the employer of its obligation to also post the notice where it could be read “on [the] way to or from the place of employment.”
SWDWII, LLC , 2012-PER-00887 (Jan. 29, 2016)
Issue - Variance between employer name on job order versus on the application
Decision – CO reversed
The CO denied the application because the employer’s name as it appeared on the job order differed from the name on the application. The CO identified this as violation of 20 C.F.R. § 656.10(c)(1), although it is apparent that he intended to cite § 656.10(c)(8).
The Board (Henley, Davis and Merck) reversed. Utilizing the analytical framework found in The China Press , 2011-PER-2924 (Aug. 20, 2015) vacated on other grounds (Nov. 30, 2015), the decision considered whether the employer’s error so misinformed potential applicants as to the identity of the employer such that the job opportunity was not clearly open. The panel concluded that because the employer’s legal name had little to do with its public identity, there was little chance for confusion and therefore a violation of § 656.10(c)(8) had not been established.
Seda’s Printing Inc. , 2012-PER-00987 (Jan. 29, 2016)
Issue - Recruitment report content
Decision – CO affirmed
The CO denied the application because the recruitment report did not contain a list of the domestic applicants rejected, organized by the ground for rejection. On reconsideration the employer argued that the required information could be found in the cover letter to the recruitment report, and simultaneously supplied new report. The CO reaffirmed the denial.
The Board (Henley, Davis and Merck) affirmed, noting that the evidentiary restriction of 20 C.F.R. § 656.24(g) precluded consideration of the new recruitment report. The panel rejected the employer’s argument concerning the original recruitment report, pointing out the employer’s obligation to provide a discrete list of the rejected applicants. In any case, even if the cover letter was considered, it was signed by the attorney and not employer and therefore was unacceptable.
Norman W. Fries, Inc. , 2012-PER-01071 (Jan. 29, 2016)
Issue - Content of the NOF; new evidence on reconsideration
Decision – CO affirmed
The CO denied the application because the NOF did not contain the name of the employer. On reconsideration the employer submitted a copy of a different NOF and documentation regarding its placement. The CO found the response insufficient, and reaffirmed the denial.
The Board (Henley, Davis and Merck) affirmed. The decision first addressed the question of whether the information submitted on reconsideration could be considered part of the record. After analyzing the applicable case law, the panel concluded it could. Despite that, the denial was still sustainable. The employer’s submission contradicted rather than explained the deficiencies in the NOF originally submitted, and the employer provided no explanation for the discrepancy.