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

Oracle America, Inc. , 2015-PER-00308 (May 4, 2017)

Issue - Laid off workers; separation notice to laid-off workers advising them to monitor the employer’s website for future openings does not meet the § 656.17(k) requirement of specific notice

Decision - CO affirmed

The Board (Geraghty, Calianos and McGrath) affirmed a denial based on the employer’s failure to properly notify and consider workers it had laid off in the occupation. 20 C.F.R. § 656.17(k)(1). In its audit response regarding the steps taken to notify and consider laid off workers, the employer stated that laid-off U.S. workers had been given a notice in their termination packet with instructions on how to view and apply to any and all labor certification job opportunities that the employer is offering. The panel rejected the employer’s contention that the employer’s obligations under § 656.17(k)(1) are vague and that the regulation does not clearly require an employer to provide specific notice of a job opportunity covered by a labor certification application to laid off workers. The panel held that Section 656.17(k) requires specific notice to laid off workers of a job opportunity for which the employer has sought permanent labor certification. The employer alternatively contended that it had substantially complied with an alternative to specific notice as set forth in an ETA FAQ. The panel, however, found that the employer had not complied with the FAQ guidance on alternative means for compliance, especially because the separation notices issued by the employer were “exactly the type of notification that the FAQ expressly rejects—i.e., a notice that simply informs the laid-off worker to monitor the Employer’s website for future openings and inviting the worker, if interested, to apply for those openings.”

Texas Instruments Inc. , 2012-PER-02458 (May 9, 2017)

Issue - Due process; alternate requirements not accommodated by online SWA job order system; panel rejected CO’s argument that free-text field could have been used because no guidance had been given

Decision - CO reversed

The CO denied the application under 20 C.F.R. § 656.10(c)(8) because the employer failed to state in its job order that applicants could substitute two college internships for the one year of experience otherwise required. The Board (Henley, Barto and Sutton) reversed accepting the employer’s argument that the on-line procedure for opening a job order did not permit inclusion of such information. The Board rejected the CO’s conclusion that the information could have been added to the free text field intended for job descriptions noting the employers had been given no guidance concerning the use of that option. The panel concluded it would offend due process to penalize the employer for defects in the job order form over which it had no control. The panel noted a similar conclusion had been reached in Cognizant Technology Solutions , 2013-PER-01595 (Mar. 12, 2013).

Bath Diner Corp. , 2012-PER-00913 (May 9, 2017)

Issue - Applicability of § 656.10(d) to NOF content in supervised recruitment cases

Decision - CO reversed

The Board (Henley, Almanza and Merck) reversed where the CO denied certification because the wage rate stated on a NOF posted during supervised recruitment was less than the prevailing wage in violation of § 656.10(d)(4), and by incorporation §§ 656.17(f)(5) and (7). The decision turns on the confusing treatment of the content of an NOF in supervised recruitment cases. While 20 C.F.R. § 656.10(d)(1) provides that NOFs will be used during supervised recruitment, other the portions of that section that address the content of the NOF are less clearly applicable or, in fact, inapplicable to supervised recruitment —e.g., the requirement that NOF be posted 30-180 prior to filing the application. Further confusion was sown by the CO’s supervised recruitment instruction letter which specified how the NOF should be posted but not what it should contain. In consideration of all of these factors, the panel concluded the denial could not be sustained.

Captain Parker’s Pub, Inc. , 2013-PER-02565 (May 12, 2017)

Issue - Incomplete application; alien working two jobs

Decision - CO affirmed

The Board (Henley, Davis and Hillson) affirmed a denial on the ground that the application was incomplete because it had conflicting dates suggesting the alien was working for two employers at the time the application was filed. The panel stated: “If the alien was working two jobs, this should have also been indicated [on the Form 9089] in the alien’s work experience. If the alien was not working two jobs, an end date was required.”

Amerisoft Corp. , 2012-PER-03265 (May 12, 2017)

Issue - Rejection of domestic applicant; failure to respond to email

Decision - CO reversed

The Board (Almanza, Hillson and Davis) reversed the denial where the employer determined a domestic applicant to be unavailable because she did not respond to the employer’s email. The panel rejected the CO’s conclusion that the record did not establish how the applicant had been contacted. “Since evidence that Mr. F. did not respond to the Employer’s email is uncontested, there could be no further obligation imposed on the Employer to send a separate communication regarding the non-selection.”

Spirent Communications, Inc. (formerly Metrico Wireless, Inc.) , 2013-PER-02757 (May 18, 2017)

Issue - Application submitted with audit differs with application filed online

Decision - CO reversed

The CO denied the application because the Form 9089 submitted with the audit response did not match the application originally filed. The employer added language which he claimed had been left out of the application because of a technical error with the electronic filing system. The Board (Almanza, Hillson and Davis) reversed. Applying the criteria enunciated in SAP America, Inc. , 2010-PER-01250 (Apr. 18, 2013)(en banc), the panel concluded that the CO’s request for a signed copy of the application was reasonable. The panel, however, reversed the denial because it accepted the employer’s explanation that the problem with missing text on the Form 9089 arose from defects in the online filing system.

Atlas Food Systems and Services, Inc. , 2013-PER-01166 (May 18, 2017)

Issue - CO ignores reconsideration request but instead processed corrected application as a new application; panel did not address § 656.11(b) because it had not been cited by the CO

Decision - CO reversed

The CO initially denied the application because it was incomplete. The employer revised the application and resubmitted it “to be reconsidered for certification.” The CO treated the resubmitted application as a new filing and denied it because the job order was now too old. The Board (Almanza, Hillson and Davis) reversed concluding that the CO had abused his discretion by treating the request for reconsideration as a new application thereby “precluding an employer from not only being heard on a meritorious arguments but also causing recruitment to go stale.” Generally speaking, under 20 C.F.R. § 656.11(b) employers are not permitted to submit corrected applications as part of request for reconsideration. The CO did not make this argument, however, and the decision therefore does not address it.

Roger Smith Hotel , 2012-PER-03607 (May 26, 2017)

Issue - Actual minimum requirements must be discernable on the Form 9089

Decision - CO affirmed

The Board (Henley, Almanza and Merck) affirmed a denial where the application offered inconsistent information concerning the experience required for the position. The panel stated:

   An employer violates 20 C.F.R. § 656.17(i) if its actual minimum requirements for the job opportunity are not represented or discernible on the Form 9089. In this case, “work experience in the arts including gallery operations and curation” does not represent the actual minimum job requirements.“[W]ork experience” suggests that the applicant needs experience in a job . This is different from requiring “knowledge” or “coursework,” which can be obtained in variety of ways. The Employer cannot truthfully state that no job experience is required under Section H.6 when some unknown amount of “work experience” is necessary under H.14. Though the Employer later attempted to clarify this requirement in its business necessity letter,§656.17(i) concerns itself with the Form 9089 itself. Moreover, the Employer’s explanation was vague and did not convey what the actual minimum experience requirement is for the job opportunity.

   Accordingly, the Employer has failed to provide the actual minimum requirements for the job opportunity, in violation of 20 C.F.R. § 656.17(i).

Slip op. at 3 (footnote omitted).

Hitachi Global Storage Technologies , 2012-PER-02786 (May 26, 2016)

Issue - Actual minimum requirements; alien gained required doctorate after being hired by the sponsoring employer

Decision - CO affirmed

The Board (Henley, Almanza and Barto) affirmed a denial where the employer required that the applicants hold a doctorate that the alien had not secured until after he was hired. The Board rejected the argument that 20 C.F.R. § 656.17(i), which limits the ability of employers to require applicants possess training or experience that the alien had obtained while working for the employer, did not apply to academic degrees secured after hire. The decision relied on several earlier decisions and noted, in particular, that the preamble to PERM regulation acknowledged employer concerns regarding this problem but that the final rule chose not to address it.

Kim & Lee Oriental LLC , 2012-PER-02779 (May 26, 2017)

Issue - CO request for names and titles of all employees not shown to be material to evaluation of whether a bona fide job opportunity was presented

Decision - CO reversed

The CO denied the application because the employer did not provide in response to the audit the name and title of each employee in the company. The Board (Henley, Almanza and Davis) reversed. Applying the SAP America, Inc. , 2010-PER-01250 (Apr. 18, 2013)(en banc) test for CO document requests for information that is not specifically identified in the regulations are required to be retained, the panel found that the CO had not explained why the names of employees not part of the corporate structure could be material to the determination of whether a bona fide job opportunity existed.

Genx Clothing, Inc. , 2016-PER-00147 (May 26, 2017)

Issue - Professional recruiting where no degree required but occupation is listed in Appendix A

Decision - CO affirmed

The Board (Henley, Almanza and Barto) affirmed the denial and rejected the employer’s argument that it did not have to engage in the additional recruitment steps because it was not demanding a bachelor’s degree for its computer programming position. The decision relied on several earlier cases holding that the recruitment steps for professional occupations must be utilized for all occupations listed on Appendix A.

John’s Lawn Service and Landscaping , 2013-PER-00794 (May 26, 2017)

Issue - Full-time, permanent employment of landscapers

Decision - CO affirmed

The Board ( Almanza, Bergstrom and Davis) affirmed the CO’s determination that the employer failed to document that it was offering a position that involved full-time, permanent employment since the record indicated that the employer’s landscaping business operated for less than 10 months a year (March 1 to December 15). The employer’s documentation did not support the contention that employees were performing snow removal and other activities during the winter.

[Editor’s note: The denial appears to have been predicated on the assumption that permanent employment requires that the position be available for at least 10 months. The decision does not address the significance, if any, of the H-2B regulation that limits applications for temporary employment to 9 months. 20 C.F.R. § 655.6(b). It is noted that in the Board held in a pre-PERM en banc decision that “although the[] landscaping jobs [at issue] may be considered ’full time’ during ten months of the year, and the need for these jobs occurs year after year, they cannot be considered permanent employment, as they are temporary jobs that are exclusively performed during the warmer growing seasons of the year, and from their nature, may not be continuous or carried on throughout the year.” Vito Volpe Landscaping , 1991-INA-300, et al (Sept. 29, 1993) (en banc). In Crawford & Sons , 2001-INA-121 (Jan, 9, 2004) (en banc), Board declined to overrule or modify Vito Volpe .