February 2017
Solarcity , 2012-PER-03119 (Feb. 1, 2017)
Issue - Lack of detail in resume found not to be a lawful ground for rejection of U.S. applicant without an interview
Decision - CO affirmed
The Board (Henley, Almanza and Hillson) affirmed a denial where the employer failed to interview an applicant because of the poor quality and lack of detail in his resume.
In this case, while Mr. F’s resume lacks certain details, including the names of his previous employer and the dates of employment, his resume does establish that he met the educational requirement and raises a reasonable prospect that he met the experience requirement. Specifically, the resume states that Mr. F has “[o]ver 20 years of experience” as a manager. - Accordingly, the Employer had an obligation to further inquire with Mr. F to determine whether he met the five year experience requirement of the position. That Mr. F did not submit a traditional resume is not a lawful job related reason to reject his application. See, e.g., Kelly Group Enterprises Corp. , 2012-PER-02324 (Oct. 6, 2016) (finding that an employer’s “use of grammar as a proxy for applicant quality does not constitute a lawful job related reason for rejecting a U.S. worker”).
Slip op. at 3-4.
Judge Hillson dissented concluding that “a document that gives no specifics as to employment history, and does not touch on many aspects of the job requirements is not sufficient to require an employer to interview a U.S. applicant.” Id . at 5. Judge Hillson stated that “[t]his case is a far cry from the situation in Kelly Group Enterprises Corp. , 2012-PER-02324 (Oct. 6, 2016), where the employer rejected a highly qualified candidate who had one or two extremely minor typos in an extensive resume.” Id .
Ibrain Technologies, Inc. , 2016-PER-00801 (Feb. 13, 2017)
Issue - Recruitment report not signed by the employer; signature on cover letter insufficient
Decision - CO affirmed
The Board (Henley, Barto and Almanza) affirmed 8 eight denials involving the same employer based on the employer’s failure to sign the recruitment report. An employer filing an application for permanent labor certification under the basic process at § 656.17 must prepare a recruitment report signed by the employer or the employer’s representative. 20 C.F.R. § 656.17(g)(1). The panel rejected the employer’s contention that it was sufficient that the recruitment report was enclosed and identified as an attachment to a cover letter that was signed by both the employer and its attorney. The panel ruled that the CO “cannot be expected to search through the materials in order to locate the signature necessary to authenticate a recruitment report where the report itself does not contain any such signature.” Slip op. at 3.
Harbor Bar Inc. , 2012-PER-03353 (Feb. 17, 2017)
Issue - NOF wage below offered wage; even very small understatement of wage rate is grounds for denial
Decision - CO affirmed
The Board (Henley, Davis and Merck) reaffirmed rulings that no deviations between the offered wage and the wage found on the NOF will be permitted. In this case, the wage difference was $ .02 per hour. ($21.26 versus $21.28.). The employer cited to the panel decisions in Superior Landscape, Inc. , 2009-PER-00083 (Aug. 28, 2009), and Kohler Co. , 2011-PER-00722 (Jun. 14, 2012), to support its position that the minimal numerical difference would not adversely affect the wages and working conditions of workers in the United States. The panel, however, found that those decisions had been limited to their precise circumstances, and that other panels had “consistently rejected the reasoning in Superior Landscape and Kohler finding that it violates the statutory requirement and regulations at § 656.17(f)(5) and (7) and that ‘any mathematical manipulation is not supported by the statutory and regulatory requirements.’ Baily Int’l of Atlanta, Inc. , 2010-PER-00468 (April 19, 2011).-” Slip op. at 3 (additional citations omitted).
Riverview Farm LLC , 2012-PER-02881 (Feb. 17, 2017)
Issue - Discriminatory job requirements; good faith recruiting
Decision - CO affirmed
The Board (Romero, Daly and Price) affirmed a denial where the SWA job order indicated that applicants needed to be over 22 years of age. The panel concluded that this action violated both the non-discrimination requirements of 20 C.F.R. § 656.10(c)(5) and the good faith recruiting requirement of § 656.10(c)(8). The panel rejected the employer’s two, somewhat contradictory, arguments that the age requirement had been erroneously added by the SWA and/or that the requirement was justified by the job.
Magna Infotech Ltd. , 2012-PER-01915 (Feb. 17, 2017)
Issue - Failure to submit resumes; employer complied with audit request for resumes of U.S. worker applicants, when it did not submit the resumes of applicants who did not fit regulatory definition of U.S. worker
Decision - CO reversed
The Board (Henley, Almanza and Merck) reversed a denial based on the employer failure to submit all the resumes of the job applicants with its audit response. The panel accepted the employer’s argument that it had initially submitted only the resumes for the U.S. workers who applied for the job since that was what the audit letter requested. The employer had omitted the resumes of candidates who were not U.S. workers (an H-1B worker; an H-4 nonimmigrant; and a foreign national residing in India). The panel found that the three applicants in question did not meet the regulatory definition of U.S. worker at 20 C.F.R. § 656.3, and that the regulations do not require an employer to maintain resumes of non-U.S. workers. 20 C.F.R. § 656.17(g)(1). The panel noted that “[w]hile we think that it is reasonable for the CO to request the resumes of applicants who are not U.S. workers, the CO did not request that documentation in this case.” Slip op. at 3. The panel also found that “because the CO had not asked for foreign workers’ resumes, and the Employer did not know that not providing those resumes would be a problem until the denial letter was issued, consideration of the foreign workers’ resumes and applications is not barred by the regulations.” Id . at 4, citing Denzil Gunnels , 2010-PER-00628, slip. op. at 9, n.4 (Nov. 16, 2010).
Transamerica Life Insurance Co. , 2015-PER-00274 (Feb. 22, 2017)
Issue - Rejection of applicants; inability to perform job duties where application did not require experience in the job offered or list ability to perform the duties as a specific skill in Section H-14.
Decision - CO affirmed
The Board (Geraghty, Calianos and Sutton) affirmed a denial where a number of U.S. applicants were rejected because the employer claimed they could not perform the job duties. The decision noted that while inability to perform the job duties could form a legitimate basis for rejecting an applicant, the Form 9089 application in this case did not require any experience in the position nor was the ability to perform these duties listed as specific skill in Section H-14.
IT Trailblazers, LLC , 2015-PER-00135 (Feb. 24, 2017)
Issue - Business necessity for a MS degree
Decision - CO affirmed
The Board (Calianos, McGrath and Sutton) affirmed a denial based on the employer’s failure to demonstrate business necessity for its Master’s degree requirement for its Computer Systems Analyst position. The panel agreed with the CO that the requirement was not normal to the occupation because O*Net indicated that the occupation normally required a Bachelor’s degree. The decision found the employer’s business necessity showing inadequate since it consisted of an unsupported assertion by the employer and a statement from a client that did not relate to the position at issue. The decision also rejected the employer’s due process arguments concluding that the reference to an incorrect job code in the audit letter did not prejudice the employer’s ability to respond to the audit.
Orly Beauty Salon & Barber Shop , 2013-PER-02548 (Feb. 24, 2017)
Issue - Bona fide job opportunity; alien ownership/control; alien’s close family relationship with owners
Decision - CO affirmed
The Board (Henley, Almanza and Guthridge), applying the established nine factor test from Modular Container Systems, Inc. , 1989-INA-00228, slip op. at 8-10 (July 16, 1991)( en banc ), agreed with the CO that a bona fide job opportunity did not exist where the alien beneficiary was the wife of a co-owner of the company. While several of the factors favored the employer, including the fact that the employer recruited in good faith, the panel concluded that the CO’s decision was correct based on the totality of the circumstances. The panel stated: “This panel finds that the fact that the Alien’s sister is an owner and the president of the Employer, her husband is an owner and the vice-president of the Employer, and her son is an owner and a partner outweigh any factors that militate in favor of the Employer.” Slip op. at 8.
Arthur’s Prime Steak and Seafood , 2013-PER-00016 (Feb. 24, 2017)
Issue - Alien gained qualifying experience with sponsoring employer; panel holds employer to description of prior position on the Form 9089 in regard to the “not substantially comparable “exception; prior training failures found insufficient to establish “infeasibility to train” exception
Decision - CO affirmed
The Board (Henley, Davis and Merck) agreed with the CO that the employer failed to demonstrate that it was not feasible to train a domestic worker where the alien had gained his two years of cooking experience with this employer. The regulation permits an alien to have gained the experience while working for the employer “in a position not substantially comparable to the position for which certification is being sought.” In the instant case, the employer had reported on the Form 9089 that the alien’s work experience with it was as a “cook,” but on motion for reconsideration contended that the alien’s previous positions involved primarily stocking and prepping, rather than cooking and preparing. The panel rejected this contention, holding that “[f]or purposes of the substantially comparable position analysis, we can only compare the jobs the Employer listed on the Form 9089 to the labor certification job. When we compare the job of ‘Cook’ to the labor certification job of ‘Restaurant Cook,’ the two jobs appear substantially comparable, if not identical.” Slip op. at 4. The panel also noted that in Form 9089, Section J-21, the employer answered “yes” to indicate that the alien gained qualifying experience with the employer in a position substantially comparable to the job opportunity requested.
The employer’s owner submitted an affidavit stating that the employer had repeatedly trained workers over the past five years only to see them quit or not be able to perform adequately after receiving training. The employer argued that from a business standpoint, training was not an acceptable investment. The panel was not persuaded by the affidavit, writing: “While failed attempts to train new hires are understandably frustrating, the Employer has not established that this financial burden amounts to a structural constraint that creates infeasibility to train. We cannot accept such a bare assertion by the Employer without a showing that a change in circumstances occurred.” Id . at 4-5.
Robert Calder Davis Jr. , 2012-PER-03734 (Feb. 24. 2017)
Issue - Rejection of applicants for lack of familiarity with duties of position unlawful where job required no education, training or experience
Decision - CO affirmed
The Board (Johnson, Rosen and Bergstrom) affirmed a denial where the employer sought certification for an office clerk requiring no education training or experience, yet rejected 21 applicants who allegedly, at the interview, expressed unfamiliarity with the duties of the position. The panel noted that, while the level of experience was irrelevant to whether they met the qualifications because the employer had indicated no education or experience was required, many of the applicants had prior office experience on their resumes and therefore were unlikely to be unfamiliar with the position. The panel also observed that the employer did not notify the applicants of the availability of a reasonable period of on-the-job training.
NCK, LLC , 2012-PER-02544 (Feb. 24, 2017)
Issue - Use of trade name in NOF; regulations require use of name identified on the Form 9089
Decision - CO affirmed
The Board (Henley, Almanza and Barto) affirmed a denial where the employer used its trade name in the NOF rather the name of legal entity identified in the application. The panel recognized that “potential cooks may actually recognize [the trade name] ‘Hansel N Griddle’ more readily than they would recognize [the legal entity name]’NCK, LLC’” but found that in the context of a NOF posting, administrative efficiency requires explicit naming of the legal name of the employer as it appears on the Form 9089. The panel stated that “We cannot require the CO to investigate whether a name discrepancy on a NOF is the result of the employer using a well-known trade name.” Slip op. at 4.
Sage IT, Inc. , 2015-PER-00050 (Feb. 24, 2017)
Issue - Rejection of domestic applicants; unlawful rejection for failure to supply experience letters from current or prior employers where such a requirement was not listed on the Form 9089
Decision - CO affirmed
The Board (Calianos, McGrath and Sutton) affirmed a denial where the employer rejected an apparently qualified applicant because she did not respond to a letter asking her to supply experience letters from current or previous employers. The decision noted that there was no reference in the application form suggesting the need for applicants to supply such letters. The panel relied upon several earlier cases which had affirmed denials based on employer actions that might discourage individuals from pursuing their applications. The decision also concluded that the employer’s attempts to contact the applicant 3 months after asking for the references did not ameliorate the problem because that effort had been delayed too long.
Silicus Technologies, LLC , 2015-PER-00136 (Feb. 27, 2017)
Issue - Rejection of domestic applicants for inability to perform job duties unlawful where employer indicated a willingness to accept experience in alternative occupations
Decision - CO affirmed
The Board (Calianos, McGrath and Sutton) affirmed a denial where a domestic applicant was rejected for not being able to perform the job duties. The panel recognized that the inability to perform the duties listed in section H-11 of the Form 9089 can potentially provide a basis for rejecting applicants even if the skills involved are not listed in section H-14, but found that the employer’s ability to utilize this ground for denial is undermined when it indicates in Section H-10 a willingness to accept experience in alternative occupations.
Cisco Systems, Inc. , 2012-PER-02918 (Feb. 28, 2017)
Issue - Location of NOF posting on employer’s premises; employer was able to document that its posting occurred on its large campus that covered contiguous cities
Decision - CO reversed
The Board (Henley, Almanza and Davis) reversed a denial that where the CO denied certification because the Employer’s documentation of its NOF included an attestation that the NOF was posted on its premises in San Jose, California, while the Form 9089 indicated that the worksite address was in Milpitas, California. The case turned on a somewhat unique factual situation in which the employer had a large campus that is located partly in San Jose and partly in Milpitas California. The panel agreed with the employer that the posting was proper since the Milpitas location was within the San Jose campus. The panel noted that in this case, the CO’s issue with the NOF involved the geographic location of the Employer’s “premises” rather than the specific location of the NOF posting on the premises, and that the panel was therefore not reaching other potential issues that arise regarding the “location of employment” because the CO did not raise them.