PERM Decisions of the Board of Alien Labor Certification Appeals
May 2016


J.T. Inc. d/b/a 7-Eleven , 2012-PER-01472 (May 3, 2016)

Issue - Newspaper of general circulation; Washington Examiner found acceptable for non-professional position

Decision - CO reversed

The Board (Price, Romero and Rosenow) reversed the CO concluding that the Washington Examiner was an appropriate newspaper of general circulation for the purposes of labor certification advertising. The Board following the reasoning of Capital Building Services , 2012-PER-01917 (Feb. 12, 2013) concluded that the Examiner was acceptable when advertising for a non-professional position.


Royal Food Inc. , 2012-PER-01280 (May 5, 2016)

D & F Construction Co., Inc. , 2012-PER-01390 (May 9, 2016)

Issue - Newspaper of general circulation; Washington Examiner found not acceptable for non-professional position

Decision - CO affirmed

The Board (Geraghty, Calianos and McGrath) affirmed denials where the employer placed its Sunday newspaper ads in the Washington Examiner . Adopting the reasoning of the dissenting opinion in Capital Building Services , 2012-PER-01917 (Feb. 12, 2013), the panel concluded that the Examiner was not an appropriate vehicle even for a non-professional position.


JWK Enterprises d/b/a Kelley’s Country Cookin , 2012-PER-01323 (May 3, 2016)

Issue - Incorrect PWD submitted in response to audit

Decision - CO affirmed

The Board (Price, Romero and Rosenow) affirmed a denial where the employer submitted the wrong PWD in its audit response. The effort to cure the defect during reconsideration by submitting the correct PWD for the application ran afoul of 20 C.F.R. § 656.24(g)


Level 3 Communications, LLC , 2012-PER-01307 (May 3, 2016)

Issue - Documentation of radio advertising

Decision - CO affirmed

The Board (Price, Romero and Rosenow) affirmed a denial where the employer’s audit response did not provide the text of the radio advertisement or written confirmation from the radio station of the dates the advertisement was aired. The panel found that the audit response documentation was insufficient under 20 C.F.R. § 656.17(f)(e)(1)(ii)(J), which puts employers on notice that the text of the radio advertisement must be documented. The effort to cure the defect during reconsideration ran afoul of 20 C.F.R. § 656.24(g)


Ronald Webb Builder, LLC , 2012-PER-01272 (May 10, 2016)

Issue - Compliance with supervised recruitment instructions

Decision - CO affirmed

The Board (Geraghty, Calianos and McGrath) affirmed a denial where the employer placed its newspaper advertisements two days after the end of the window period for the advertisements established in the supervised recruitment letter. The decision referenced an FAQ warning employers that applications would be denied if supervised recruitment time limits were not followed. It also noted that the employer never sought an extension of time to place the advertisements.


Patni Americas, Inc. , 2013-PER-03224 (May 10, 2016)

Issue - Alternate experience; specificity in advertisements; newspaper advertisements do not need to exactly match statement of requirements in Form 9089 if they sufficiently apprise applicants of the job opportunity; quantification in advertisements of amount of experience that would be accepted in lieu of a degree is not required

Issue - Actual minimum requirements; substitution of experience for education is red flag, and SVPs must match - but context is important; fact that alien qualified under primary requirement lessens fear of tailoring; alternate expressed as “any suitable combination of education and experience” is acceptable

Decision - CO reversed

The application involved the position of software engineer. The employer described the job as a “technical positon requir[ing] a Bachelor’s degree in computer science-and/or relevant business experience.” The CO denied on several grounds flowing from this language: the employer failed to describe the job with sufficient specificity as required by 20 C.F.R. §§ 656.17(f)(3) and 656.24(b)(2)(ii); and, the employer failed to identify its actual minimum requirements as mandated by 20 C.F.R. § 656.17(i)(1). The employer sought reconsideration contending, inter alia, that it was common knowledge that a Bachelor’s degree was the equivalent of two years’ experience and that its advertisement should read that way. It cited General Electric Co. , 2011-PER-2696 (Jan. 22, 2013) in support of that argument. The CO reconsidered, but affirmed the denial noting that there were an infinite number of combinations of education and experience that could equate to two years of SVP, and that the employer was required to identify its experience requirements with greater particularity.

The Board (Henley, Davis and Merck) reversed. In regard to the level of specificity required by § 656.17(f)(3), the panel concluded: -The advertisements clearly stated that the position required “a Bachelor’s degree - or relevant industry experience. ” - (emphasis added). While the Employer’s newspaper advertisements did not contain the exact language that appeared on the Form 9089, we find that the advertisements sufficiently described the position’s alternate educational requirement such that U.S. workers were apprised of the job opportunity. Furthermore, while the CO stated on reconsideration that the Employer should have quantified in its advertisements the amount of experience that would be accepted in lieu of a degree, there is no basis for such a requirement in the regulations. Slip op. at 5. In regard to whether the employer had stated the position’s actual minimum requirements on the Form 9089, the panel noted that the CO was understandably skeptical - that “employers occasionally try to substitute experience for education in a manner that does not comport with the regulations“, and that “[u]nder the PERM regulations, primary and alternate requirements are only substantially equivalent if they share identical SVP values.” Id . (citations omitted). The panel concluded that the CO must have believed that the employer’s alternative educational requirements would have allowed the alien to qualify with experience in an entirely unrelated field, but found that in the context of the application, that interpretation was not correct, noting that in this case the alien qualified for the position by virtue of the primary requirement. Also the panel noted that the suitable alternative language had been considered and accepted by the Board in General Electric .


Brass Lantern Inn , 2012-PER-03223 (May 10, 2016)

Issue - Proper advertising; dates of advertisements documented on tear sheet were different from those reported on Form 9089; submission of revised Form 9089 on reconsideration barred by § 656.11(b)

Decision - CO affirmed

The Board (Henley, Davis and Merck) affirmed a denial where the dates on the newspaper tear sheets submitted in the audit response did not match the dates listed on the Form 9089. The employer’s effort to address the disparity by submitting a new Form 9089 with a motion for reconsideration ran afoul of 20 C.F.R. § 656.11(b).


The Sherwin-Williams Co. , 2012-PER-01295 (May 11, 2016)

Issue - Alien qualifications for the job; submission of additional documentation with motion for reconsideration is an attempt to modify the application barred by § 656.11(b)

Decision - CO affirmed

The Board (Geraghty, Calianos and McGrath) affirmed a denial where the employer failed to show on the Form 9089 that the alien possessed the minimum requirement of 60 months of experience. The employer attempted to remedy the deficiency by presenting documentation with its request for reconsideration showing the alien’s qualifying experience, and by arguing that the omission of this information on the Form 9089 was inadvertent and non-material. The panel held that the additional evidence submitted on reconsideration could not be considered “because it constitutes a modification to the Employer’s ETA Form 9089, which is prohibited under the regulations. 20 C.F.R. § 656.11(b) (’Requests for modifications to an application will not be accepted for applications submitted after July 16, 2007.’); see Umberto Pirone Contracting, Inc. , 2010-PER-1099, PDF at 4 (Aug. 31, 2011).”


Boodell & Domanskis, LLC , 2012-PER-01275 (May 11, 2016)

Issue - Alien qualifications; CO overlooked addendum to Form 9089 clarifying experience requirement

Decision - CO reversed

The CO denied the application because the alien possessed only one year of part-time experience in the position whereas the application required a year of full-time experience. The Board (Geraghty, Calianos and McGrath) reversed noting that an addendum the Section H.14 of the application provided that the job required a one year of full or part-time experience.


CEO Ally, Inc. , 2012-PER-01274 (May 12, 2012)

Issue - Rejection of domestic applicant; duty to inquire

Decision - CO affirmed

The Board (Geraghty, Calianos and McGrath) affirmed a denial where the employer rejected, without an interview, a domestic applicant who possessed the required Master’s degree in computer science along with many years of experience in IT. The employer had asserted the worker lacked experience in one particular skill set. The decision noted that given the wide-ranging nature of the applicant’s work experience, the employer was required to conduct a deeper inquiry into his qualification before rejecting him.


Infosys Ltd , 2016-PER-00074 (May 12, 2016)

Issue - Phrase -various unanticipated locations throughout the U.S.- found to encompass notion of possibility of relocation; due process, failure of OFLC to provide notice and guidance on issue

Decision - CO reversed

The CO denied the application because the employer did not disclose in its application and advertising that the work location might change. The employer argued on reconsideration that the possibility of relocation was inherent since the application described the work location as “Plano, Texas and various unanticipated work location in the U.S.” The employer also noted that 500+ identical applications had been approved before the CO chose to introduce the question of relocation. The employer argued that the CO’s denial represented a change in position implemented without prior notice.

The Board (Henley, Almanza and Davis) reversed. The panel stated that the appeal presented two issues: -1) Did the CO correctly determine that the possibility that workers might be required to relocate was not subsumed in the Employer-s description of the work locations as ?various unanticipated locations through the U.S?? 2) Assuming the CO reasonably concluded that relocation was not subsumed in that language, did it violate due process or fundamental fairness to apply that determination to cases already in process where no guidance on that question had been issued and hundreds of essentially identical applications had previously been certified?- Slip op. at 8.

The panel first rejected the CO-s premise that the phrase -various unanticipated locations throughout the U.S.- is indicative of a travel and not a relocation requirement. The panel found this not to be self-evident, and unsupported by citation to any authority. Moreover, the panel found that -the possibility of relocation seems more readily associated with the unanticipated work locations language.- Id . at 9 (emphasis as in original). The panel also determined that fundamental fairness and due process required a reversal since employers had been provided no guidance concerning the need to explicitly disclose the possibility of relocation. The decision also gave weight to the employer’s contention that the organized immigration bar had affirmatively sought guidance on how to address a variety of issues concerning itinerant workers and that no guidance was ever provided.


Edible Arrangements , 2012-PER-01841 (May 23, 2016)

Issue - Incomplete recruitment report

Decision - CO affirmed The Board (Geraghty, Calianos and McGrath) affirmed the denial where the recruitment report did not explain the disposition of one of the domestic applicants. On reconsideration the employer provided the rationale and claimed that he had not heard from the applicant at the time the recruitment report was issued. The Board agreed with the CO that the explanation did not relieve the employer of its requirement to file a complete recruitment report, and that efforts to correct the deficiency on reconsideration ran afoul of 20 C.F.R. § 656.24(g).


Actuarial Systems Corp. , 2012-PER-01599 (May 26, 2012)

Issue - Content of NOF; new evidence submitted during reconsideration is not in record for appellate review where CO invoked evidentiary bar of § 656.24(g)(2) in his decision on reconsideration

Decision - CO affirmed

The Board (Henley, Almanza and Davis) affirmed a denial where the notice of filing did not contain the salary, as required by 20 C.F.R. § 656.10(d)(4). The employer tried to cure the deficiency during reconsideration by submitting copy of its H-1B notice which did contain the salary. The panel found that H-1B notice was not admissible evidence:

   A narrow exception to § 656.24(g)(2)(i)-(ii) exists. When the CO actually considers evidence submitted on reconsideration, it is part of the record on which the denial was made and it is proper for BALCA to consider the evidence on appeal. Almstead Tree & Shrub LLC , 2011- PER-1569 (Dec. 22, 2011); Hellmuth Obata + Kassabaum, Inc. , 2011-PER-240 (Dec. 14, 2011); Take Solutions, Inc. , 2010-PER-449 (Sept. 8, 2010); Clearstream Banking S.A. , 2009-PER-15 (Mar. 30, 2010). A previous panel has clarified that when a CO acknowledges evidence and does not state whether it is barred by § 656.24(g), he has actually considered evidence and it is part of the record on which the decision was made. New York City Department of Education , 2012-PER-2753 (June 19, 2015).

   While the CO in this case analyzed the sufficiency of the H-1B notice, the narrow exception described above does not apply because the CO explicitly invoked § 656.24(g)(2).

Even if the H-1B notice was in the record for appellate review, the panel concluded that the H-1B notice was insufficient to document compliance with § 656.10.


Everest Production Corp. , 2012-PER-01420 (May 26, 2016)

Issue - Content of the NOF; name of the employer

Decision - CO affirmed

The Board (Johnson, Bergstrom and Rosen) affirmed a denial where the notice of filing did not contain the employer’s name. The decision contains a discussion of Tera Technologies, Inc. , No. 2011-PER-02541 (Aug. 28, 2014)(en banc), other caselaw, and its own observations addressing whether there is any circumstance where a notice of filing without the name of the employer would be acceptable.


Shore to Shore, Inc. , 2012-PER-01266 (May 27, 2016)

Issue - Content of notice of filing; rate of pay

Decision - CO affirmed

The Board (Daly, Romero and Price) affirmed a denial where the rate of pay was not included in the notice of filing. The decision rejected the employer’s effort to invoke harmless error.


DGN Technologies Inc. , 2012-PER-02347 (May 25, 2016)

Corporate Green, LLC , 2012-PER -02317 (May 16, 2016)

WorldNet International Couriers, Inc. , 2012-PER-03062 (May 26, 2016)

Polaris Software Lab (India) Ltd. , 2012-PER-03174 (May 25, 2016)

Bryan Independent School District , 2012-PER-02272 (May 25, 2016)

DGN Technologies Inc. , 2012-PER-02347 (May 25, 2016)

Issue - Advertising content; Symantec § 656.17(f) advertisement content criteria apply exclusively to print and journal advertising

Decision - CO reversed

The Board (Henley, Almanza and Davis) reversed these denials based on the principle established in Symantec , 2011-PER-01856 (July 30, 2014) ( en banc ) that the advertising content requirements in 20 C.F.R. § 656.17(f) apply exclusively to print and journal advertising.