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

Solar Turbines, Inc. , 2016-PER-00025 (June 2, 2017)

Issue - Actual minimum requirements; alien qualification; information about adequacy of Form 9089 and its instructions should have been considered by the CO on reconsideration; form and instructions did not accommodate specific information about alien’s qualifications

Decision - CO reversed

The CO denied the application, without an audit, because the Form 9089 did not establish that the alien possessed the skills required to perform the job. The employer sought reconsideration supplying the missing information and contending that there was no space on the application form to include such information. The CO reaffirmed the denial noting that an FAQ issued in July 2014 explained how the information could have been added to the form. The CO noted “the PERM process represented in the Department’s regulations at 20 CFR § 656 is structured to allow labor certification to be granted solely on the basis of the information contained in the ETA Form 9089.”

The Board (Henley, Barto and Davis) reversed concluding that the CO had erred in not considering the information submitted along with reconsideration request since the employer had not had a prior opportunity to submit the information. 20 C.F.R. § 656.24(g)(2)(ii). The panel found that the CO should have considered the documentation provided by the Employer on reconsideration that the form, “and the properly promulgated instructions for the form” prevented the employer from providing the information at the time of filing. The panel agreed with the Employer that the limitations of Form 9089 and its “effectively prevented the presentation of the documentary evidence concerning the Alien’s specific qualifications to the CO -.” The panel observed, alternatively, that even if the material was not properly in the record based on § 656.24, it was still part of the record because the CO acknowledged the information and did not state explicitly that it had been excluded from consideration under that provision.

Majescomastek , 2013-PER-00812 (June 2, 2017)

Issue - Relocation; requirement that advertisements not contain any job requirements or duties which exceed the job requirements listed on the ETA Form 9089s; statement on 9089 that job opportunity would be in various client and office sites throughout the U.S. sufficient to disclose possibility of relocation

Decision - CO reversed

The Board (Almanza, Bergstrom and Davis) reversed a denial arising from the CO’s determination that the possibility of the position being relocated, which was described in the advertising, had not been disclosed on the application form. The panel ruled that “The language used by the Employer on its ETA Form 9089 indicated that the job holder for the position would be required to relocate to various client work sites throughout the United States. The Employer’s newspaper advertisements and NOF stated that the position may require relocation. Therefore, the Employer did not advertise job requirements that were not on its ETA Form 9089.”

Cooper City Church of God , 2013-PER-00594 (June 8, 2017)

Issue - Position for which labor certification must be for permanent, full-time work; fact that alien was working in position on part-time schedule does not, in itself, provide grounds for denial of certification

Decision - CO reversed

The CO denied the application because at the time of the filing the job opportunity appeared only to be part-time. The CO rejected the employer’s argument that it was expanding it counseling program and that by the time the alien received his green card the job would be full-time.

The Board ( Almanza, Hillson and Barto) reversed concluding that “The CO simply stated that the evidence was insufficient to demonstrate full-time employment, but provided no explanation why the evidence was not sufficient, and in fact appeared to suggest that the alien must be in the full-time position at the application is filed, which is simply not the case.”

Preescolar San Juan Evangelista , 2013-PER-00613 (June 2, 2017)

Issue - Rejection of U.S. applicant; applicant found to be potentially qualified after a reasonable period of on-the-job training

Decision - CO affirmed

The Board (Almanza, Barto and Bergstrom) affirmed a denial where the employer failed to interview an applicant because she did not have the required 6 months experience as a teacher. The panel concluded that while the applicant’s experience as a “teacher-in-training” might not precisely meet the employer’s requirements, she had sufficient experience so as to be potentially qualified based on a reasonable period of on-the-job training, and therefore should have been interviewed. See 20 C.F.R. § 656.17 (g)(2).

Sana Health, Inc. , 2015-PER-00448 (June 6, 2017)

Issue - Error in reporting job requirements on the Form 9089 that did not align with requirements shown on PWD cannot be cured by modification of the application once filed

Decision - CO affirmed

The Board (Calianos, McGrath and Sutton) affirmed a denial where the PWD reflected a level of experience (Masters + 2) different than that contained on the Form 9089 (Bachelors + 5). The employer argued that the Form 9089 erroneously listed the requirements for the job opportunity as a Bachelor’s degree and 60 months’ experience when the actual requirements are a Master’s degree and 24 months’ experience, and asked that the CO overlook the error and adjust the Form 9089. The panel found that “the Employer’s request that the CO “adjust” the job requirements in the Form 9089 constitutes an attempt to modify the application which is expressly prohibited because the Employer obtained a PWD based on education and experience requirements that are not the same as those listed in its Form 9089, thereby putting the accuracy of the PWD into question, we conclude there was no error in the CO’s denial of the certification by the PERM regulations at 20 C.F.R. § 656.11(b).” Slip op. at 5 (citations omitted). The panel held that “because the Employer obtained a PWD based on education and experience requirements that are not the same as those listed in its Form 9089, thereby putting the accuracy of the PWD into question, we conclude there was no error in the CO’s denial of the certification.”

Techdemocracy, LLC , 2013-PER-02259 (June 8, 2017)

Issue - Business necessity found not to be established where evidence of other employers’ advertisements were not shown to involve equivalent positions, and other evidence was merely self-serving and generalized

Decision - CO affirmed

The Board (Almanza, Hillson and Barto) affirmed a denial based on the employer’s failure to establish that its job requirements were supported by business necessity. The employer submitted a list of positions offered by other employers that purported to indicate the petitioning employer’s requirements were not uncommon, but did not provide detailed evidence of the equivalency of those positions with the position for which labor certification was sought. The panel found that the employer’s submission of advertisements for allegedly similar positions, a self-serving letter, and generalized assertions, were insufficient to meet its burden to show business necessity. The panel also agreed with the CO that the employer’s efforts to supplement its business necessity justification with information submitted during reconsideration was precluded by 20 C.F.R. § 656.24(g)(2).

Nanda Infotech Services , 2015-PER-00454 (June 6, 2017)

Issue - Rejection of applicants; failure to document contacts

Decision - CO affirmed

The CO denied certification under 20 C.F.R. §§ 656.10(c)(9) and 656.21(e)(4) because the employer’s supervised recruitment report did not identify the methods used to contact minimally qualified applicants as requested by the CO in the Recruitment Report Instructions letter. The Board (Calianos, McGrath and Sutton) affirmed the denial. The panel found undisputed that the “recruitment report and accompanying documentation omitted any information showing that the Employer attempted to contact applicant Masood for an interview by mailing a letter to him at the address listed in his resume as instructed by the CO. In addition, the Employer concedes that its telephone log does not document the attempts to call Mr. Masood.”

Metropolitan Architectural Woodwork, LLC , 2012-PER-02581 (June 20, 2017)

Issue - Application lists beneficiary as U.S. citizen; § 656.11(b) precluded application from being corrected

Decision - CO affirmed

The Board (Henley, Almanza and Barto) affirmed a denial where the application listed the beneficiary as a U.S. citizen. The Board rejected the argument that this was correctable typographical error observing the regulations are designed to grant certifications to employers seeking to hire foreign workers and therefore the misinformation on the Form mandated that the application be denied. The panel found that 20 C.F.R. § 656.11(b) precluded the application from being corrected.

Southstar Fire Protection Co. , 2012-PER-03304 (June 20, 2017)

Issue - Failure to interview domestic applicant whose resume showed a reasonable possibility of acquiring needed skills during a reasonable period of on-the-job training

Decision - CO affirmed

The Board (Almanza, Davis and Sutton) affirmed a denial where the employer failed to interview a domestic applicant whose resume showed a reasonable possibility of acquiring needed skills during a reasonable period of on-the-job training. While the applicant lacked the required experience in designing fire protection systems, the panel agreed with the CO that his background as Fire Captain with responsibility for inspecting such systems along with his civil engineering background raised a sufficient question concerning his ability to perform the job such that an interview was necessary.

Microsoft Corp. , 2013-PER-00727 (June 20, 2017)

Issue - Supervised recruitment advertisement content; CO properly directed employer to include alternate job title stated in Form 9089, Section H.10.

Decision - CO affirmed

The Board (Almanza, Bergstrom and Davis) affirmed a denial where the employer failed to follow the CO’s instructions to correct its supervised recruitment advertising to reflect the employer’s actual minimum requirements. The CO had sent the employer a Draft Advertisement Correction directing that the draft advertisement include the experience requirement listed on the ETA Form 9089 of “6 months experience in the job offered or in any computer related job title.” The employer provided a revised draft advertisement but contended the requested correction as to the experience requirement did not reflect its requirement that applicants have “six months of software development experience.” The employer, therefore, did not make this correction to the revised draft advertisement. Because the employer did not make the correction, CO denied the application. The employer filed a motion for reconsideration contending that it provided an acceptable draft advertisement because the draft advertisement matched exactly the minimum job requirements information presented in the Form 9089, and that the CO’s instructions required modifications that did not accurately represent the actual minimum requirements. The employer contended the six months experience in the job offered or any computer related job title language in Section H.10.B. of the Form 9089 only explained the acceptable job title for alternate occupations, and not the type of experience required for the position. The CO was not persuaded and affirmed the denial on reconsideration.

The panel ruled:

Section H.10.B. asks the Employer to identify the job title of an acceptable alternate occupation in which an applicant could gain the six months of experience the Employer requires for the position of ‘Software Development Engineer.’ While the Employer listed specific skills the job required in Section H.14, its response in Section H.10 indicated that it would accept job applicants who obtained the experience in the specific skills listed in Section H.14 in a position with ‘any computer related job title.’” -

   In the CO’s Draft Advertisement Correction, he did not require the Employer to eliminate the experience requirements in the programs originally listed in Section H.14. - Rather, the CO directed the Employer to list its actual minimum experience requirement as it is listed on ETA Form 9089, Sections H.6 and H.10. - By making this change, the advertisement would have clearly notified potentially interested U.S. workers that the Employer would not only accept six months experience in the specific position of “Software Development Engineer” but also six months experience in “any computer related job title,” as it attested to on its ETA Form 9089.

   Furthermore, by refusing to make the requested correction to its draft advertisement, the Employer did not provide the CO with a draft advertisement summarizing its actual minimum requirements entered on its ETA Form 9089, as required by 20 C.F.R. § 656.21(b)(1).

Slip op. at 4.

Happy Home Care, Inc. , 2013-PER-00567 (June 20, 2017)

Issue - Good faith recruiting; contact letter stated wage less than wage offer

Decision - CO affirmed

The Board (Almanza, Bergstrom and Davis) affirmed the denial concluding that the job opportunity was not clearly open to U.S. workers where the employer violated its obligation to recruit in good faith by sending out letters to applicants asking them to confirm that they were still interested in the employer’s Accounting Clerk position at the rate of $32,000. The offered wage on the Form 9089, however, was $33,280

Sunnyvale School District , 2014-PER-00620 (June 22, 2017)

Issue - Supervised recruitment report instruction to contact applicants by all methods listed on applicants’ resumes found not to support denial of certification where an applicant’s resume showed that she was not qualified

Decision - CO reversed

The Board (Almanza, Hillson and Merck) reversed the CO who had denied the application because the employer had contacted a domestic applicant only by certified mail. The panel concluded that no further efforts to contact the applicant were necessary since her resume indicated that she lacked both a requisite Master’s degree, and a central requirement for the position - a California teaching certification. The teaching certificate requirement was sufficiently critical to the position that the employer could reasonably conclude that the applicant’s failure to indicate that she possessed one meant she did not have one. The panel stated that while the CO’s recruitment report instruction letter directed the employer to contact applicants by all methods listed on the applicant’s resume, this instruction was “plainly intended for those situations when the Employer had a duty to interview the applicant.” Slip op. at 7. The panel found that denying the application in that circumstance was an abuse of discretion.

Latin American Community Center , 2014-PER-00880 (June 22, 2017)

Issue - Preferences as requirements

Decision - CO affirmed

The Board (Almanza, Hillson and Merck) affirmed a denial where the employer’s advertising for its position of Director of Prevention & Advocacy expressed a preference for applicants with Human Resources experience, where no such preference was reflected on the application form. Applying well-established principles that employer preferences will be treated as if they were requirements, the Board agreed with the CO that the employer violated 20 C.F.R. § 656.17 (f)(7). That regulation requires that the job must be offered on terms no less favorable the terms offered the alien. The decision noted that other cases upholding denials involving similar facts had relied on 20 C.F.R. § 656.17(f)(6), which requires that advertisements not contain requirements not listed on the application.

Sran AG , 2014-PER-00912 (June 22, 2017)

Issue - Proof of newspaper publication inconsistent with the dates of publication reported on the Form 9089

Decision - CO affirmed

The Board (Almanza, Hillson and Davis) affirmed a denial where the proof of publication for the required Sunday newspaper advertisements documented different dates for the publication from the dates reported on the Form 9089 application. This discrepancy warranted a denial under 20 C.F.R. § 656.17(e)(1)(i)(B)(3).

Sanrasoft, Inc. , 2013-PER-00056 (June 27, 2017)

Issue - Failure to disclose option to work from home

Decision - CO affirmed

The Board (Henley, Barto and Davis) affirmed a denial based on the employer’s failure to disclose in its newspaper advertisements that the job opportunity could be performed by a person living at home. The panel rejected the employer’s argument that the work-from-home option could be gleaned from the language in the advertisements stating that “Trav. & Reloc. May be reqd.” The panel noted that such an argument was illogical since relocation would be unnecessary if the job could be performed at home.

Orion Systems Integrators , 2013-PER-00218 (June 27, 2017)

Issue - Job requirements in newspaper advertisement but not in Form 9089; argument that advertisement covered multiple positions not persuasive where text indicated that skills in all listed areas were required

Decision - CO affirmed

The Board (Almanza, Barto and Bergstrom) affirmed a denial where the newspaper advertisement listed job requirements that were not disclosed in the application in violation of 20 C.F.R. § 656.17(f)(6). The decision rejected the employer’s argument that that advertisement was for multiple positions, not all which required the skill-sets in question, noting that the text of the advertisement would have caused the average applicant to conclude that skills in all of the listed areas were required.

IT Cats, LLC , 2012-PER-03588 (June 27, 2017)

Issue - Good faith in recruitment; delay in contacting applicants; single attempt at contact; arbitrary uncommunicated deadline for response

Decision - CO affirmed

The Board (Henley, Almanza and Barto) affirmed a denial based on lack of good faith in recruitment. The panel found that the fact that the employer waited three months before following up with applicants undermined its obligation to make a reasonable effort to contact them. The panel wrote:

Although the reasonableness of an employer’s efforts depends on the individual facts of a case, we find that the Employer’s contacting the applicants by phone and email on only one day was not a reasonable effort to contact these rejected applicants. Furthermore, setting a response deadline, though not expressly prohibited by the regulations, undermines the Employer’s efforts at recruitment when the Employer fails to inform the applicants and only contacts the applicants on that exact, uncommunicated deadline. We agree with the CO that this does not constitute good faith recruitment of U.S. workers. Accordingly, the CO did not err by concluding that the Employer did not reject these applicants for lawful job-related reasons.

Slip op. at 3.

Amdocs , 2012-PER-02510 (June 28, 2017)

Issue - Job clearly open; wage grossly misstated

Decision - CO affirmed

The Board (Henley, Almanza and Barto) agreed with the CO that the job opportunity was not clearly open to U.S. workers where the web site advertisement listed the wage as “$0.00 - $1.00.” The panel noted prior rulings holding that even slight misrepresentation concerning the wage offer can support violations of 20 C.F.R. § 656.10(c)(8). The decision noted that misrepresentation here was “gross” and that the panel was “unwilling to accept the Employer’s contention that the misrepresentation had no effect.”

Guess?, Inc. , 2015-PER-00504 (June 28, 2017)

Issue - Reporting of alien’s possession of licensure on the Form 9089; FAQ inadequate method to correct shortcoming on Form 9089; CO should have considered documentation of alien’s licensure provided with motion for reconsideration

Decision - CO reversed

The CO denied the application because the Form 9089 did not demonstrate that the alien possessed the required CPA license. The CO determined that an FAQ issued on July 28, 2014 described how that kind of information could be included on the Form. The employer sought reconsideration including documentation of the CPA license and further contending that FAQ had not been properly promulgated.

The Board (Geraghty, McGrath and Sutton) reversed. The panel concluded that the FAQ “was an attempt by the OFLC to correct the deficiency in the Form 9089 and the Form 9089 instructions in regard to listing special skills, certificates, licenses and professional course work-but that FAQ guidance is not an appropriate or legally effective method of correcting shortcomings in the Form 9089-.” The panel determined that under these circumstances the CO erred in not accepting the proof of licensure submitted during reconsideration and therefore certification would be granted.

Telaprise, LLC , 2012-PER-03255 (June 28, 2017)

Issue - Infeasibility to train U.S. worker due to technological changes

Decision - CO reversed

The Board (Almanza, Geraghty and Barto) reversed a denial concluding that the employer had succeeded in demonstrating that it was infeasible to train a new worker and therefore the alien could qualify for the position based on experience gained with this employer. 20 C.F.R. § 656.17(i)(3)(ii). The panel agreed with the employer that technological changes had altered the nature the position such that it was no longer feasible to train a worker the way the alien had been trained. The decision relied on Vac-Tec Systems , 1988-INA-00353 (Aug. 2, 1989) which had also accepted technical changes as justifying an infeasibility finding.

Ahmed Indian Restaurant , 2012-PER-03511 (June 29, 2017)

Issue - Verification of sponsorship; once employer asserted in motion for reconsideration that it was sponsoring the alien, CO’s options if he suspected the veracity of the application were to refer for a fraud investigation or to conduct an audit; remand warranted where CO had not reviewed the substantive merits of the application prior to denial

Decision - CO denial vacated and matter remanded

The Board (Sutton, Almanza and Barto) vacated a denial that had been based on CO’s determination that the point of contact in the Form 9089 (the employer’s president) had stated when contacted by phone by the CO’s staff for verification of sponsorship that the employer was not currently sponsoring the alien for the cook position named on the Form 9089, although it still wanted to sponsor the alien. The employer’s attorney filed a motion for reconsideration asserting that the employer’s president had not understood the questions posed to him on phone call. Attached the motion was a letter, under the employer’s letterhead, and signed by the employer’s president, verifying sponsorship. The CO stated in a decision on reconsideration that a request for information (“RFI”) had been mailed requesting the employer to submit a signed statement on the employer’s letterhead verifying the sponsorship, and that the employer had not responded in a timely fashion. The CO thus found that the denial was valid.

Before the Board, the panel discussed principles first articulated in Pickering Valley Contractors , 2010-PER-01146 (Aug. 23, 2011), concerning the CO’s authority to deny applications for failure to verify sponsorship. The panel rejected the CO’s effort to tie the denial to the employer’s failure to respond to an RFI letter that was not in the record. The panel noted that “the record does not other reveal whether the CO informed the Employer of what, if any, consequences it would face for not timely responding to the RFI letter-” The panel held that once the employer filed the motion for reconsideration affirming sponsorship, the CO should not have issued an RFI to gain verify sponsorship. Rather, if the CO still had doubts as the veracity of the application, he should have referred the matter for a fraud investigation or instituted an audit.

Judge Barto filed a concurring opinion discussing in greater detail specific deficiencies of each of the CO’s specific denial grounds. Judge Barto clarified that the matter was remanded because it appeared that the CO had not substantively reviewed the application.

Arbin Corp. , 2013-PER-00052 (June 29, 2017)

Issue - Failure to disclose necessary travel; proper regulatory citation

Decision - CO affirmed

The Board (Almanza, Davis and Sutton) affirmed a denial where the employer failed to disclose in its advertising that the job might involve some travel. The decision first dealt with the CO’s failure to cite the correct regulation, 20 C.F.R. § 656.17(f)(4). The panel concluded that “the CO’s miscalculation was not prejudicial and did not operate to deprive the Employer of due process” where the employer’s motion for reconsideration and brief before the Board established that it understood the issue presented. The decision also rejected the employer’s contention that its job description did reasonably suggest that some travel would be required.

48 Elevator Components, Ltd. , 2012-PER-03507 (June 29, 2017)

Issue - Denial grounds not timely raised

Decision - CO reversed

The Board (Almanza, Merck and Sutton) reversed a denial where the CO’s reconsideration denial abandoned the initial ground used while introducing a new denial ground. The decision observed that due process and fundamental fairness precluded the CO from utilizing new denial grounds without giving the employer an appropriate opportunity to respond.