PERM Decisions of the Board of Alien Labor Certification Appeals
January 2017

Orion Systems Integrators, Inc. , 2012-PER-02311 (Jan. 4, 2017)

Issue - Failure to disclose alternative requirements in advertisements; to find a violation of § 656.10(c)(8) based on the omission of information in advertisements, the record must show such misinformation or lack of information that the employer’s attestation that the job opportunity was clearly open to any U.S. worker is not supported

Decision - CO reversed

The CO denied the application relying upon 20 C.F.R. § 656.10(c)(8) because the employer’s advertising did not disclose an alternative experience requirement for its computer software engineering position. The minimum requirements for the job opportunity were a Master’s degree in computer science and one year of experience in the job offered, but the Employer had alternative minimum requirements of a Master’s degree in computer applications, engineering, or math and one year of experience as a software project developer or an IT consultant. The Employer’s website advertisement and SWA job order stated the job requirements as a Master’s in Computer Science, Computer Applications, Engineering or Math and one year of experience. The CO found that these advertisements did not adequately apprise U.S. applicants of the minimum job requirements because they did not state the alternative of one year of experience as a software project developer or an IT consultant.

The Board (Henley, Barto and Davis) reversed, stating:

   The inquiry under § 656.10(c)(8) is whether the Employer’s job search website advertisement or the SWA job order so misinformed, or failed to inform, potential applicants about the job opportunity that the recruitment did not support the Employer’s attestation that the job opportunity was clearly open to any U.S. worker. Kyyba, Inc. , 2012-PER-02841 (June 30, 2016). Generally, jobs are not clearly open when an employer’s recruitment materials “affirmatively mischaracterize an aspect of the position” or “overstate the position’s minimum [] requirement.” AMR Capital Trading Corp. , 2012-PER-00609 (Jan. 16, 2016); Waterside Constr., LLC , 2012-PER-01603 (Jan. 8, 2016). Furthermore, the omission of information generally does not support a denial pursuant to § 656.10(c)(8) when the regulations do not require such a disclosure. Kyyba , at 3.

Slip op. at 3-4 (footnote omitted). In the instant case, the panel noted that “the Employer omitted the acceptable alternative occupations that could qualify a potential U.S. applicant for the job opportunity,” but found that “the amount of experience required was not overstated, and the Employer did not include any qualifiers that would suggest that potential U.S. applicants with relevant experience could not apply for the job opportunity.” The panel also found that the website advertisement and job order had not affirmatively mischaracterized the experience required for the job opportunity.

The CO had also cited §§ 656.10(c)(9) and 656.24(b)(2)(i) in the denial, but the panel found these regulatory provisions inapplicable because the CO had not raised the question of whether U.S. workers were unlawfully rejected.

Qualcomm, Inc. , 2012-PER-03178 (Jan. 17, 2017)

Issue - Presumption of delivery is strong where employer produces certified mail delivery receipt

Decision - CO reversed

The Board (Henley, Barto and Davis) applied a strong presumption of delivery in favor of the employer in reversing a denial that was based on the employer’s alleged failure to respond to an audit notice. The panel stated that in the instant case, “the production by the Employer of a certified mail delivery receipt gives rise to a strong presumption that the requested materials were actually delivered to the CO.” Slip op. at 3. The CO argued that because the Employer did not submit its audit response documentation with its request for reconsideration, the CO could not establish whether the Employer mailed its audit response documentation or some other correspondence. The panel rejected this argument, noting that “the CO’s only request for documentation was in relation to the audit notification, so it is reasonable that the Employer’s mailing was the response to the audit notification.” Id . at 4 (footnote omitted).

Anadigics, Inc. , 2012-PER-02448 (Jan. 19, 2017)

Issue - Errors on the Form 9089 are not in themselves ground for denial—rather the error must violate a regulation; reporting an incorrect prevailing wage on the Form 9089 is not a ground for denial where the wage offer was above the correct prevailing wage determination

Decision - CO reversed

The Board (Henley, Almanza and Barto) reversed a denial despite the employer having reported an incorrect prevailing wage on the application. Specifically, the employer reported a PWD on the Form 9089 of “$57,874.80,” while the PWD in its audit file was “$59,009.60.” The employer asserted that the entry represented a typographical error, and was a harmless error. The CO found on reconsideration that the Employer was “responsible for ensuring a complete and accurate ETA Form 9089 is presented for processing.”

The panel adopted the reasoning from IAC Search & Media , 2011-PER-00845 (May 2, 2012), which held that a typographical error on the Form 9089 is not alone a ground for denial unless it causes the application to be deniable. In this case, the error did not render the application deniable since the offered wage was above the proper prevailing wage.

Zain Business Inc. , 2012-PER-01923 (Jan. 19, 2017)

Issue - Failure to disclose employer’s name in on-campus recruitment is not, in itself, sufficient to support a finding that the job was not clearly open to U.S. workers

Decision - CO reversed

The Board (Henley, Almanza and Merck) reversed the CO's denial based on the employer’s failure to include its name in its on-campus recruitment. The CO had found that applicants may be unwilling to respond to blind advertisements. The panel rejected the CO’s reliance on 20 C.F.R. § 656.10(c)(8) noting that the employer had not misrepresented anything and that failures to disclose generally do not support a § 656.10(c)(8) violation. The panel stated: “In this case, while the name of the Employer might have been useful information for interested job seekers to have, its omission does not support a finding that the job was not clearly open.” Slip op. at 3.

Wayne Hospital , 2012-PER-03348 (Jan. 19, 2017)

Issue - Prevailing wage validity period; employer relied on ruling in BALCA panel decision later rejected by BALCA en banc decision; employer’s contention that en banc ruling could not be applied retroactively found unpersuasive

Decision - CO affirmed

The Board (Henley, Barto and Merck) affirmed a denial where the employer did not commence its recruitment during the PWD validity period. The employer argued its actions were consistent with the Board’s three-judge panel ruling in Horizon Computer Services , 2010-PER-00746 (May 25, 2011), and that the Board’s en banc ruling in Karl Storz Endoscopy-America , 2011-PER-00040 (Dec. 1, 2011) ( en banc ), which expressly rejected the Horizon Computer ruling, could not be applied retroactively. The panel rejected that argument, stating: “While the Employer may have relied upon Horizon Computer for making a strategic legal decision, its reliance does not change the current state of the law. See Indep. Computer Consulting Grp. Inc. , 2012-PER-03552 (Oct. 18, 2016) (finding that Karl Storz is a binding decision that the panel must follow).” Slip op. at 3.

The panel also rejected the employer’s argument that technical problems with the OFLC website prevented its timely filing of the application. Although the employer submitted notes from American Immigration Lawyers’ Assocation alerts that indicated that the Office of Foreign Labor Certification’s online systems were unavailable at certain times for scheduled maintenance, and indicating that iCERT problems had occurred, the Employer did not present documentation showing that it experienced an issue.

Los Angeles Unified School District , 2012-PER-03153 (Jan. 23, 2017)

Issue - Rejection of domestic applicant based on negative evaluation in prior employment; PERM program does not allow an employer to rely on “inherent” requirements not stated on the Form 9089

Decision - CO affirmed

The Board (Markley, Rosen and Bergstrom) affirmed a denial where the employer rejected a domestic applicant because of an unsatisfactory evaluation from the applicant’s most recent student teaching assignment. The panel concluded that this factor could not be considered since nothing in the application indicated that prior performance was a factor in selection. Although the Employer cited BALCA caselaw permitting rejection of U.S. applicants based on “inherent” requirements that need not be stated on the application, the panel found that those decisions were not binding as they were decided under the pre-PERM regulations, whereas “[t]he PERM program demands strict compliance with the regulations, and the regulations require that the job requirements described in the Application represent the employer’s actual minimum requirements.” Slip op. at 5 (citations omitted).

Greatwall, Inc. , 2015-PER-00085 (Jan. 26, 2017)

Issue - Failure to document contact of applicants by email

Decision - CO affirmed

The Board (Geraghty, Calianos and Sutton) affirmed the denial where, in a supervised recruitment case, the employer failed to document in its recruitment report contact of domestic applicants by email as was required by the Recruitment Report instruction letter. The employer’s effort to address the issue by submitting proof of email contact in its motion for reconsideration was precluded by 20 C.F.R. § 656.24(g).

Petrobras America, Inc. , 2015-PER-00060 (Jan. 26, 2017)

Issue - Employer must detail specific skills and knowledge requirements in the Form 9089; knowledge requirements are often subjective and require strict scrutiny when used to reject a U.S. applicant; where requirements are technically complex employer bears a difficult burden of persuading the CO and the Board that they are in fact requirements and not merely tailoring to the alien’s qualifications

Decision - CO affirmed

The Board (Calianos, Geraghty and Sutton), after an exhaustive review of the record, affirmed the CO’s determination that a domestic applicant had been unlawfully rejected for lacking demonstrated knowledge of flow assurance as specified in Section H-14 of the Form 9089 as a requirement for the Employer’s petroleum engineering job.

The panel agreed with the CO that job duties listed in Section H-11 of the Form 9089 cannot be considered job requirements unless they were listed under Section H.14, “Specific skills.” The panel stated that although “[a]n employer may incorporate the job duties as job requirements where it indicated on the application that it is requiring experience in the job offered,” “[i]n this case, the Employer’s application stated it would accept 36 months in the job offered or in an alternate related occupation and that it would accept any suitable combination of education, experience and training,” and therefore “the Employer may not use the job duties listed in its application or advertisements as job requirements in order to disqualify U.S. candidates.” Slip op. at 8-9 (citations omitted).

The employer, however, argued that “demonstrated knowledge of flow assurance” was listed under section H.14, “Specific skills,” and that “it is a complex concept and therefore requires a broad and diverse skillset.” Id . at 9. The panel recognized that “[a]lthough an applicant may meet minimum job requirements, an employer may reject a candidate for the inability to perform the main job duties,” but noted that “when an employer raises such a ground for rejection, it must provide an objective detailed basis for its conclusions.” Id . at 10 (citations omitted). Here, the employer interviewed the applicant and identified very specific knowledge shortcomings—that the applicant lacked production and artificial lift experience, and was unable to explain pressure drop using mathematical equations during the interview. The panel agreed with the CO that the employer could not disqualify the applicant for lacking skills and knowledge not identified on the application, and was not convinced by the employer’s explanation for why the applicant’s lack of knowledge on these specific items hindered the applicant’s ability to perform the required job duties. The panel found that the record showed that the applicant clearly met the minimum qualifications for the position and had knowledge of flow assurance. The panel noted that an employer cannot reject a U.S. applicant because they are not the best qualified or as qualified as the alien.

The employer contended that demonstrated knowledge of flow assurance means knowledge of all concepts encompassed under that term, and noted that the CO was in no position to determine what constitutes demonstrated knowledge of flow assurance. The employer presented an affidavit from it flow assurance expert. The panel, however, was unconvinced, stating that “We find the Employer’s requirement of ‘demonstrated knowledge of flow assurance’ on its application vague and does not clearly or objectively require knowledge or experience with artificial lift, production operations, or pressure drop using mathematical equations.” Id . at 14. The panel cited Baosu Int ’l, Inc. , 1989-INA-00038 (Oct. 3, 1989), for the proposition that “[ a] requirement characterized as ‘familiar with’, like ‘knowledge of’, although not impermissibly vague, can only be measured subjectively and requires strict scrutiny when used as a basis for rejection of U.S. applicants.” Id . The panel noted that the CO had to research the meaning of “flow assurance” as it was not defined by the employer in its application. The panel found that “If the Employer wanted to impose specific knowledge and/or experience requirements, the Employer should have explicitly listed those under the ‘Specific skills’ section in its application.” The panel noted:

   The panel in Bakst Int’l , 1989-INA-00265 (Mar. 14, 1991) noted that cases concerning jobs in technically complex fields are open to abuse of the labor certification process “by obscuring real needs in jargon and technical language that a Certifying Officer or Administrative Law Judge has little hope of understanding . . . [I]t [also] heightens the danger that the job is being tailored to the alien’s qualifications.” Thus, in these types of cases, the Bakst panel found an employer’s evidentiary burden may become more difficult since it must present its case in a manner that can be understood by the reviewing official. Id . Moreover, the panel stated that an employer should present its evidence in a “manner that adequately explains to non-experts why the experience and knowledge required is customary.” Id . In this case, the Employer may not presume the CO understands the specific and complex skillset required for the position. The burden is on the Employer to clearly articulate its minimum job requirements and prove those are essential to successfully perform the position’s job duties.

Id . at 14-15. The panel found that “the Employer’s evidentiary showing [was] inadequate to establish that its alleged skill and knowledge requirements are legitimate and that the Applicant was lawfully rejected.” The panel further found that “[t]he Employer also failed to show the Applicant could not perform job duties with a reasonable period of on-the-job training pursuant to Sections 656.21(e)(4) and 656.24(b)(2)(i). Even if we accepted the Employer’s purported required skillset as legitimate, there is no documentation or information in the record explaining why the Applicant, who has substantial experience as a Senior Flow Assurance and Petroleum Engineer, would not be able to acquire the skills pertaining to artificial lift, production operations, or pressure drop with a reasonable period of on-the-job training.” Id . at 15 (footnote omitted).

Global Works Group, LLC , 2012-PER-03421 (Jan. 27, 2017)

Issue - Employee referral programs; ad hoc arrangement for one particular vacancy does not constitute documentation of an existing ERP

Decision - CO affirmed

The Board (Henley, Almanza and Davis) affirmed a denial based on the employer’s failure to adequately document the existence of an employee referral program (ERP). The employer presented documentation of an in-house posting announcing the vacancy indicating that anyone who referred a qualified candidate would get an additional personal day. The panel found that this documentation demonstrated that the employer’s employees were on notice of the job opportunity, and that the job opportunity was eligible for a referral incentive:

However, an employer’s documentation of its use of an employee referral program requires more than an advertisement of a referral incentive; the documentation must advertise or describe the details of the program to establish its existence. An ad hoc arrangement providing an incentive for one particular vacancy does not constitute an existing “program.” Here, the Employer’s documentation fails to advertise its program or to provide a description of the program. Therefore, even though the documentation demonstrates that an incentive was offered, it fails to establish that the Employer had an employee referral program in existence.

Slip op. at 3 (citing Studio Maestro , 2010-PER-00732 (May 25, 2011)).

Crysberg Inc. , 2015-PER-00029 (Jan. 30, 2017)

Issue -Familial relationship creates presumption that job opportunity is not bona fide; to overcome presumption, employer must document that the totality of the circumstances support rebuttal of the presumption

Decision - CO reversed

The Board (Geraghty, Calianos and Sutton) found that § 656.17(l) creates a presumption that the job opportunity is not bona fide and available to all U.S. workers, where a familial relationship exists between the stockholders, corporate officers, incorporators, or partners, and the alien.

In the instant case, the alien was the son of the employer’s Vice President. The panel applied the “totality of the circumstances” test found in Modular Container Systems, Inc. , 1989-INA-00228 (July 16, 1991) ( en banc ). The panel weighed the factors and found that while three factors supported the presumption, all other factors supported rebuttal. The panel therefore reversed the denial.

New All Star Wireless, LLC , 2015-PER-00020 (Jan. 30, 2017)

Issue - Applicant may be rejected without an interview if his or her resume clearly shows that he or she does not meet a job requirement, where the CO did not challenge job requirement as unduly restrictive, or the CO did not explain adequately why the U.S. applicant is was nonetheless qualified

Decision - CO reversed

The Board (Geraghty, Calianos and Sutton) reversed a denial that was based on the employer’s rejection of a domestic applicant without an interview because she did not possess the required Bachelor’s degree in Computer Science or a related field. The CO pointed out that the applicant had a Bachelor’s degree in Business Administration and over 10 years of experience, and that under “§ 656.24(i)- a U.S. worker must be considered able and qualified for the job opportunity ‘if the worker, by education, training, experience, or a combination thereof, is able to perform in the normally accepted manner the duties involved in the occupation as customarily performed by other U.S. workers similarly employed.’” While the applicant in question had substantial experience, the panel focused the fact the she did not possess the required degree. Central to the ruling was the panel’s acceptance of the employer’s argument that the CO had misread the application as suggesting that the employer would accept experience in lieu of a the required degree. Rather, the application specifically stated in Section H.7 that education in an alternative field of study was not acceptable. The panel stated:

   Our disagreement with the CO’s determination in this case is in no way a repudiation of the CO’s concern that an employer fully investigate the qualifications of U.S. Applicants. The Board has long recognized the principle that recruitment in good faith requires an employer to “take steps to ensure that it has lawful job-related reasons for rejecting U.S. applicants, and not stop short of fully investigating an applicant’s qualifications.” E. Tenn. State Univ. , 2010-PER-00038, slip op. at 12 n.11 (Apr.18, 2011) (citations omitted); see also Gorchev & Gorchev Graphic Design , 1989-INA-00118, slip op. at 2-3 (Nov. 29, 1990) ( en banc ) (employers must investigate the credentials of an applicant whose resume indicates a range of experience, training or education that raises the possibility that such applicants are qualified and the burden is on an employer “to establish that the resume alone shows there is no reasonable possibility that an applicant meets the job requirement.”). However, Board precedent also recognizes that “[a]n employer is not required to interview every applicant, and an applicant may be rejected without an interview where the applicant’s resume reveals that the applicant clearly lacks the minimum specified job requirements. Select International, Inc. , 2011-PER-01478, slip op. at 6 (Sep. 19, 012) (citing Anonymous Management , 1987-INA-00672 (Sep. 8, 1988) ( en banc ) and ENY Textiles, Inc. , 1987-INA-00641 (Jan. 22, 1988)). Thus, absent a finding of unduly restrictive requirements, an employer may reject a U.S. candidate solely based on the individual’s resume if the “resume shows [the applicant] clearly does not meet the requirements for the job.” JP Morgan Chase & Co. , 2011-PER-01000, slip op. at 4 (Jul. 16, 2012) (citations omitted); see also Kennametal, Inc. , 2010-PER-01512, slip op. at 8 (Mar. 27, 2012) (where an applicant clearly does not meet a stated job requirement, the burden shifts to the CO to explain adequately why the U.S. applicant is qualified through a combination of education, training or experience, despite his or her failure to meet the stated requirement).

Slip op. at 8.