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

V & V Paint and Body, LLC , 2013-PER-00682 (Apr. 14, 2017)

Issue - Failure to timely comply with supervised recruitment instructions deadlines

Decision - CO affirmed

The Board (Henley, Almanza and Barto) affirmed a denial based on the employer’s failure to timely complete two of the recruitment steps mandated by the CO pursuant to 20 C.F.R. § 656.21(c)(l). The panel rejected the argument that the employer’s 3 day delay in placing its job order and the 5 day delay in posting the NOF constituted forgivable harmless error. The decision specifically noted the distinction between this case where the deadlines were established under 20 C.F.R. § 656.21(f), which provides no specific provision for the waiving of deadlines, versus cases decided under §§ 656.20(e) and 656.21(g) which authorize the CO to grant extensions. The panel stated: “When, as here, an employer fails to comply with the CO’s specified timeframes and has offered no explanation for the delay, the CO may properly deny the application. It is unnecessary for the CO to show that any harm resulted from the delay and the magnitude of the delay is not determinative.” Slip op. at 6.

Sumeru Inc. , 2013-PER-01241 (Apr. 24, 2017)

Issue - Alien qualifications listed on Form 9089; CO focused too much on job title versus job duties

Decision - CO reversed

The Board (Almanza, Guthridge and Merck) reversed a denial where the CO concluded that the information provided on the Form 9089 did not establish that the alien beneficiary qualified for the position. The employer had required experience “in the job offered” of Project Manager. The Alien’s prior experience listed on the Form 9089 was in the job titled “programmer analyst.” In its request for review, the employer provided a chart showing that the job duties for the prior positions, as had been described in attachments to the Form 9089, evidenced equivalent experience as that required for the Project Manager position. The panel agreed with the employer that the CO placed too much weight on the job titles of the alien’s prior employment, ignoring the fact that the duties performed qualified him for the position.

Garcourt, Inc. , 2012-PER-00957 (Apr. 24, 2017)

Issue - NOF content during supervised recruitment; where CO warned against any deviation from approved advertisement, instructions about text of NOF must be clearly stated

Decision - CO reversed

The Board (Henley, Almanza and Davis) reversed a denial based on the employer’s failure to include in his NOF, placed during supervised recruitment, the language directing third parties to contact the CO concerning issues regarding the application as required by 20 C.F.R. § 656.10(d)(3). The panel rejected the employer’s contention that § 656.10(d)(3) did not apply to a NOF placed during supervised recruitment. The panel, however, concluded that the employer acted reasonably in believing that the supervised recruitment instructions, which mandated the precise content of the employer’s advertising, also encompassed the content of the NOF. That approved advertising text was silent regarding the CO contact issue. “While the NOF instruction quoted at length from § 656.10(d)(1), it gave no indication that the CO required the Employer to alter the approved text in order to bring the NOF into compliance with § 656.10(d)(3)(ii). The effect of these communications was to lead the Employer into believing that its application would be denied if it posted a NOF that deviated in any way from the approved advertising text.” The decision was limited to the precise facts of the case. The panel stated: “While the CO has ‘broad discretion’ to set content requirements under supervised recruitment, he also has a concomitant obligation to state those requirements clearly. The CO may not provide instructions that cause an employer to reasonably conclude its recruitment materials may not deviate from approved text, then penalize that employer for posting a NOF that conformed exactly to those instructions.”

Pacific Lutheran University , 2012-PER-03173 (Apr. 24, 2017)

Issue - Special handling for college or university teaching position; employer failed to state why the alien was better qualified that each U.S. worker

Decision - CO affirmed

The Board (Henley, Davis, and Guthridge) affirmed the denial of an application for a university professor where the employer failed to provide specific job-related reasons explaining why the alien was better qualified than each domestic candidate as required by 20 C.F.R. § 656.18(b)(1)(ii). In its audit response, the employer’s hiring committee’s chair had only detailed the alien’s credentials and stated that the alien was more qualified than each of the four U.S. applicants; the statement did not explain the specific reasons why those credentials made the alien more qualified.

Guardian Pharmacy, LLC , 2013-PER-03017 (Apr. 26, 2017)

Issue - Rejection of domestic applicants; subjective standards

Decision - CO affirmed

The Board (Almanza, Guthridge and Merck) affirmed a denial where the employer rejected a number of otherwise well qualified domestic applicants because they allegedly lacked “strong verbal communication skills.” The decision contains a discussion of the case law addressing the use of subjective factors in rejecting otherwise qualified applicants. The panel wrote: “[E]mployers face a heightened burden when they reject otherwise qualified U.S. applicants for failing to meet subjective requirements. Specifically, the Board has cautioned that ‘a subjective determination, because of its potential for abuse, is suspect and must be supported by objective, detailed facts which are sufficient to provide an objective, detailed basis for concluding the applicant could not perform the core job duties.’ Sentient Systems, Inc. , 1994- INA-00519 (Jan. 23, 1996), citing Lee & Family Leather Fashions, Inc. , 1993-INA-00050 (Dec. 21, 1994).” Slip op. at 4.

Loma Brothers Inc. , 2014-PER-00114 (Apr. 28, 2017)

Issue - Restrictive job requirements; bona fide job, alien control

Decision - CO reversed

The Board (Almanza, Barto and Guthridge), presented with somewhat unusual facts, reversed a denial of certification where the employer sought to fill a cook position. The employer did not require, and the alien did not possess, any education or training in the occupation. The Board rejected the CO contention that this constituted an overly restrictive job requirement tailored to the alien. Applying the 9 factor test from Modular Container , the panel also rejected the CO’s conclusion that no bona fide job opportunity existed where the alien was the sister of the one of owners of the company.