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

Karam Kaur Khasriya , 2012-PER-02304 (July 14, 2014)

Issue - Record for review; where revised recruitment report submitted with a motion for reconsideration was considered by the CO, it was in the record for review

Decision - CO reversed

The CO denied the application because the employer did not include the resumes of the domestic applicants with its recruitment report. The report noted that “no qualified person” applied for the position and the CO extrapolated from that statement that some allegedly unqualified workers had applied. On reconsideration, the employer submitted a revised report which explicitly stated that no workers had applied and further argued that the use of the word qualified in the report submitted initially was merely surplusage. The CO refused to reconsider.

The Board (Henley, Almanza and Barto) reversed. The decision noted that the CO acknowledged the existence of the revised recruitment report and appeared to have considered it. Having concluded that the revised report was part of the record, the decision determined that any ambiguity in the original report had been addressed and since no domestic workers had applied, a denial based on the failure supply applicant resumes could not be sustained.

Marlabs, Inc. , 2012-PER-01962 (July 14, 2016)

Issue - Documentation of Employee Referral Program (ERP)

Decision - CO reversed

The Board (Henley, Davis and Merck) reversed a denial of certification concluding that the employer had adequately documented the existence of an ERP. In particular the decision noted that an undated page from an employee handbook made the origin of the document clear and the employer established that the manual was available on the employer’s intranet site during the recruitment period. The audit response also included an attestation establishing the dates the ERP was in place.

Global Empire LLC , 2012-PER-02800 (July 14, 2016)

Issue - Information on Form 9089 submitted with audit differs from on-line submission

Decision - CO reversed

The CO denied the application because on the Form 9089 submitted in response to the audit identified a different official in the employer declaration than the one named on the 9089. On reconsideration the employer argued that during the period between the filing of the application and the audit response the name of the authorized individual had changed. The CO reaffirmed the denial concluding that the information regarding the change in designated individual could be submitted in the context of reconsideration but should been described in the audit response.

The Board (Henley, Barto and Davis) reversed. Applying the principles of SAP America, Inc ., 2010-PER-01250 (Apr. 18, 2013) (en banc), the panel concluded that the submission of a Form 9089 with a different name and signature did not constitute a substantial failure to comply with the audit. The panel also rejected the CO’s contention that the revised information should have been provided with the audit response noting that the employer had not be alerted in the audit letter that the change to that section of the form might result in a denial.

Watercheck, LLC , 2012-PER-01693 (July 26, 2016)

Issue - Newspaper of general circulation; Washington Examiner found not to be an appropriate advertising vehicle, even for non-professional positions

Decision - CO affirmed

The panel ( Calianos, Geraghty and McGrath), adopting the principles set forth in earlier 2016 decisions, Royal Food Inc. , 2012-PER-1280 (May 5, 2016) and D&F Construction Co. , 2012-PER-1390 (May 9, 2016), concluded that the Washington Examiner was not an appropriate advertising vehicle even for non-professional positions. In reaching this result, the decision expressly disagreed with the contrary rulings in Capitol Building Services , 2012-PER-1971 (Feb. 12, 2013) and J.T. Inc., d/b/a 7-Eleven , 2012-PER-1472 (May 3, 2016).

Om Shri Ganesh LLC , 2016-PER-00024 (July 28, 2016)

Issue - Wage on NOF below the offered wage

Decision - CO affirmed

The Board (Henley, Davis and Merck) affirmed a denial where the low end of the wage range was below the wage offered the alien on the Form 9089 albeit above the prevailing wage. The decision rejected the employer’s reliance on the language in the preamble to regulations which suggests that employers could utilize a wage range in the NOF as long as the low end was above prevailing. The decision noted that this preamble discussion did not overcome the specific language of the 20 C.F.R. § 656.10 which requires the NOF be compliance with § 656.17(f) which, in turn, requires that wage offers cannot be less favorable than that offered the alien.

JDA Software, Inc. , 2012-PER-02130 (July 28, 2016)

Issue - Failure to disclose ability to work from home

Decision - CO affirmed

The Board (Henley, Almanza and Merck) affirmed a denial where the employer presented the job as being in Fairfax, Va. when that simply was where the alien happened to be living at the time the application was filed.