March 2017
Capital One, National Association , 2015-PER-00203 (Mar. 29, 2017)
Issue - Minimum job requirement; ambiguity in description of minimum job requirements in advertising
Decision - CO affirmed
The Board (Geraghty, Calianos and McGrath) affirmed a denial where the employer stated on the application that the position required a “Bachelors or higher degree.” The panel agreed with the CO that this formulation violated the requirement that the employer offer the job at its actual minimum requirements. 20 C.F.R. § 656.17(i). “We agree with the CO that the Employer’s gratuitous inclusion of the ‘or higher’ language in the description of the job requirements creates ambiguity as to the actual minimum educational level required which could conceivably discourage U.S. workers with a Bachelor’s degree from applying.” There is some tension between this ruling and other decisions, including Intent Designs, Ltd. , 2012-PER-01692 (Oct. 28, 2016), which hold that ambiguity in the description of minimum job requirements does not constitute a violation of § 656.17(i).
Aptina, LLC , 2015-PER-00281 (Mar. 29, 2017)
Issue - Whether employer may submit additional documentation about rejection of U.S. worker with motion for reconsideration in supervised recruitment case
Issue - Rejection of domestic applicant for not being as qualified as alien
Decision - CO affirmed
The Board (Geraghty, McGrath and Sutton) in a lengthy opinion affirmed a denial based on the CO’s determination that a domestic applicant had been unlawfully rejected. As an initial matter, the panel agreed with the CO that evidentiary limitations contained in 20 C.F.R. § 656.24(g) precluded consideration of additional information the employer had submitted on reconsideration which elaborated on the denial ground. The panel distinguished the decision in Kelly Group Enterprises , 2010-PER-02324 (Oct. 6, 2016), which had permitted the employer to supplement its explanation for rejecting an applicant. The panel noted that this case, unlike Kelly , arose in the context of supervised recruitment. The regulations governing supervised recruitment contemplate a more detailed recruitment report than is normally required. The decision proceeds on with detailed review of the applicant’s qualifications and the employer’s rationale for rejection, ultimately concluding that the applicant had been improperly rejected because he was not as qualified as the alien.
Amedisys, Inc. , 2015-PER-00280 (Mar. 29, 2017)
Issue - Incorrect job requirements on the recruitment report
Decision - CO reversed
The Board (Geraghty, McGrath and Sutton) reversed the denial. The CO had determined that the employer listed on its recruitment report job requirements that exceeded those contained in the application. The CO concluded that this disconnect resulted in a violation of 20 C.F.R. § 656.17(i). The CO rejected the employer’s contention that the additional requirements contained in the recruitment report were the result of a typographical error. The panel noted that the employer was not required to list job requirements in its recruitment report and that both the NOF and the advertisements properly identified the job requirements. “Thus, we find the erroneous description in the recruitment report created on impediment on the CO’s review of the Employer’s compliance especially after the Employer identified and explained the error in its request for reconsideration.”
Ad Cosmetic USA Ltd. , 2012-PER-03508 (Mar. 31, 2017)
Issue - Incorrect wage listed on application; typographical error
Decision - CO reversed
The CO denied the application because the prevailing wage on the application form was less than the actual prevailing wage. The employer said the discrepancy was the result of a typographical error. The employer noted that it had obtained the correct prevailing wage and used it in the NOF.
The Board (Henley, Davis and Hillson) reversed. The panel concluded that the mere fact the form contained an error in reporting the prevailing wage determination did not mandate a denial of the application where the error did not render the application not approvable, citing Anadigics, Inc. , 2012-PER-02448 (Jan. 18, 2017). The panel stated: “We find that the - grounds for the CO’s rejection of the application—providing the wrong tracking number for the PWD and the wrong dollar amount on the Form 9089—are incorrect where the PWD was in fact properly determined and thoroughly documented, and was accurately updated in the course of responding to the audit.”
Enrich IT, Inc. , 2013-PER-00629 (Mar. 31, 2017)
Issue - Failure to timely submit advertisement placement schedule during supervised recruitment
Decision - CO affirmed
The Board (Henley, Barto and Hillson) affirmed a denial where the employer was four days late in providing the CO its recruitment schedule. “The only issue before us appears to be whether the failure to timely submit the advertisement placement schedule was harmless as to require us to reverse the CO and approve the application. We decline to do so- Where, as here, the CO’s instructions were clear and explicit, there is no reason for us to permit an untimely response or devise a harmless error rule.”
Oncology & Hematology Associates of Central Jersey , 2017-PER-00073 (Mar. 31, 2017)
Issue - Actual minimum requirements; alternate requirements too vague
Issue - CO must explain why on-point BALCA decision was improperly decided or risk reversal on appeal
Decision - CO reversed
The CO denied the application because he found the employer’s alternate experience requirement of “any combination of degrees, diplomas or professional credentials determined to be equivalent” too vague to permit him to determine the requirements. On reconsideration the employer argued that the CO’s position had been rejected by the Board in Intent Design, Ltd. , 2012-PER-01692 (Oct. 28, 2016). The CO refused to adopt the reasoning from Intent Design observing that “BALCA decisions are rendered on an independent case basis, according to the specific circumstances of the individual case. Therefore, a single panel BALCA decision cannot be unilaterally applied to other foreign labor certification applications denied for the same or similar reason.”
The Board (Henley, Barto and Almanza) reversed the denial based the on reasoning from Intent Design . In a footnote, the panel expressed concerns regarding the CO’s discussion of the proper status to be afforded the Board’s decisions. “If a CO determines that application of a prior decisional rule of the Board is inappropriate in a given case, then the CO must either justify the inconsistent application of the earlier Board decision or face reversal on appeal. If the CO believes that a prior decision of the Board was improperly decided, relief may be sought through the formal rulemaking process or by seeking en banc review of the issue by the Board in an appropriate appeal.”
Avenue NU Donuts, Inc. , 2015-PER-000470 (Mar. 31, 2017)
Issue - Insufficient effort to contact applicant
Decision - CO affirmed
The Board (Geraghty, Calianos and McGrath) affirmed a denial where the employer’s sole effort to contact a domestic applicant was a certified letter that was, allegedly, returned as undeliverable. The decision contains a lengthy analysis of the substantial body of pre-PERM law that addresses the scope of the employer’s obligation to attempt to contact domestic applicants.
Global Teachers Research and Resources, Inc. , 2015-PER-00451 (Mar. 31, 2017)
Issue - Employer’s inability to document website advertising; mere assertion that a documentation was difficult to obtain due to circumstances outside its control is insufficient to carry burden of proof
Decision - CO affirmed
The Board (Geraghty, Calianos and McGrath) affirmed a denial based on a determination that content of some to the employer’s web advertising was incomplete. The employer alleged that the deficiencies were the result of limitation with the two websites. Since the case was in the supervised recruitment process, these sites had been selected by the CO. While the panel acknowledged the case law suggesting that in some circumstances the employer should not be penalized for deficiencies in its advertising that are beyond its control, it did not find that principle applicable here. “While the Employer attempts to explain the absence of supporting documentation by stating that it was only able to retrieve a few of copies of the advertisements at the time that they were placed (Emp. Pos. at 3), it offered no affidavit from the person who placed the advertisement with these websites or any other corroboration of its claims. It is a well-established principle that a bare assertion without either supporting reasoning or evidence is generally insufficient to carry an employer's burden under the INA.”
American Express Travel Related Services , 2015-PER-00443 (Mar. 31, 2017)
Issue - Consideration of laid-off workers
Decision - CO affirmed
In a thorough decision, the Board (Calianos, McGrath and Sutton) affirmed a denial based on the employer’s failure to contact and consider workers in the same occupation laid off within six month prior to filing the application. The Board rejected the employer’s argument that the employer’s notification to workers at the time of their layoff that they were free to monitor the employer’s website and apply for any appropriate position, satisfied the regulatory requirement that laid-off works be explicitly notified of the vacancy and considered for the position. The panel also rejected the argument that the fact that the CO had approved similar applications in the past estopped the CO from denying this one.