August 2016
Micron Technology, Inc. , 2012-PER-02116 (Aug. 1, 2016)
Issue - Rejection of domestic applicants based on educational requirements not listed on the Form 9089; coursework
Decision - CO affirmed
The Board (Henley, Almanza and Hillson) affirmed a denial where the employer, without benefit of an interview, rejected domestic applicants based the absence of educational requirements that were not listed on the Form 9089. The CO had found: “While the Form 9089 stated that understanding of certain subjects was required, it did not indicate that applicants must have taken any specific coursework in these subjects as a prerequisite for the position. After receipt of resumes, Employer electronically asked applicants if they had taken any course in microelectronic/semiconductor processing. If the applicant answered ‘no’ they were eliminated from consideration.” The panel ruled: “While Employer contends that the question concerning whether an applicant took a college course in microelectronic/semiconductor processing was a legitimate screening question, the fact that a negative answer was a total bar on the applicant’s having an opportunity to otherwise show the requisite knowledge on this subject as indicated in the Form 9089 is the basis for the CO’s finding that the regulations were violated. As the CO found, applicants who did not take a course should, under the terms of the Form 9089, have an opportunity to demonstrate that they have ‘[a] strong grasp of semiconductor fabrication process techniques.’ Employer is using this question as a means of imposing a requirement not in the Form 9089.”
Jose’s Mexican Grill and Cantina , 2012-PER-01719 (Aug. 2, 2016)
Issue - Failure to fully respond to audit letter; bona fide job opportunity
Decision - CO affirmed
The Board (Calianos, Geraghty and McGrath) affirmed a denial under 20 C.F.R. § 656.20(b) (substantial failure to provide required documentation following an audit notification) where the employer failed to supply all of the information requested by the CO in order to establish whether a bona fide job opportunity existed. The Board applied the SAP America Inc. test for documentation whose retention the regulations do not require. The decision also noted that that the employer had incorrectly answered the question on the Form 9089 concerning whether the alien had a familial relationship with the petitioning employer.
Cosmos Foundation, Inc. , 2012-PER-01637 (Aug. 4, 2016)
Issue - Nondisclosure of alternate experience requirement; whether advertisements sufficiently apprised of the job opportunity; whether the position was not clearly open to U.S. workers
Decision - CO reversed
The CO denied the application under 20 C.F.R. § 656.10(c)(8) because the employer’s advertisements listed only the primary job requirement (BA and two years’ experience in the job offered as Social Studies Department chair) but not the alternative experience (two years’ experience as social science teacher or as a teacher in any subfield at the middle or high school level).
The Board (McGrath, Geraghty and Calianos) reversed. The decision observed that the CO mischaracterized the employer’s advertising as requiring experience as a department chair, which it did not. The Board found no violation of § 656.17(f)(3) as the Employer’s print advertisements “sufficiently apprised” U.S. workers/applicants of the job opportunity.. The Board also discussed the case law regarding the applicability of § 656.10(c)(8), noting that a violation of that provision normally cannot be grounded in the omission of information but rather necessitates a determination that the employer “misinformed” potential applicants regarding the job opportunity.
Humentis Technologies, Inc. , 2012-PER-02098 (Aug. 4, 2016)
Issue - Proof of newspaper advertising; correspondence about setting up an advertisement found insufficient to substitute for tear sheets or an affidavit of publication
Decision - CO affirmed
The Board (Henley, Almanza and Merck) affirmed the denial based on the employer’s failure to adequately document the placement of advertisements in the Newark Star Ledger . The decision contains a discussion of the case law concerning how ad placement can be documented and when, if ever, an employer can prevail in the absence of tears sheets or an affidavit of publication. In the instant case, the audit response only included correspondence with the Star Ledger that discussed the placement of classified newspaper advertisements, and which did not establish that the newspaper advertisements actually ran on the dates attested to on the ETA Form 9089. The panel found that “the Employer’s failure to produce tear sheets, a publisher affidavit or additional proof of publication deprived the CO of concrete evidence of the timing of the advertisements and the publication actually used.”
Cloister Inn of Princeton University , 2012-PER-02094 (Aug. 5, 2016)
Issue - Documentation of infeasibility to train
Decision - CO affirmed
The Board (Henley, Davis and Merck) affirmed a denial based on the employer’s failure to document that it was infeasible to offer to domestic applicants the type of training provided to the alien as required by 20 C.F.R. § 656.17(i)(3). The decision discusses the heavy burden imposed on employers seeking to meet this standard and the case law that has addressed that issue. In this case, the employer failed to explain how its circumstances had changed since the alien was hired to make the training infeasible. The decision noted in particular that the position of “Chief Chef” (who had trained the alien) still existed. In addition, the employer failed to explain why none of its other 12 employees could provide the training.
Gazebo Contracting Inc. , 2012-PER-02679 (Aug 12, 2016)
Issue - Reissuance of labor certification; presumption of delivery
Decision - CO reversed
The CO had granted the employer’s labor certification but it was apparently never received by the employer. When the employer discovered that the certification had been issued by checking the electronic case tracking system, the 6 month period for filing the certification with USCIS had expired. The employer asked the CO for “documentation to enable us to file” a petition with USCIS. The CO refused. The Board (Henley, Almanza and Merck) ordered new certification with an appropriate valid period to be issued. The decision concluded that the CO had failed to introduce proof of its mailing procedure so to invoke the presumption of delivery. It also noted that the presumption, even if invoked, was a weak one and would be rebutted by evidence presented by the employer principally the fact that the employer would have had no incentive to fail to timely file the labor certification with USCIS if it had received it.
O’Connor Davies Munns & Dobbins LLP , 2012-PER-02146 (Aug. 12, 2016)
Issue - Incomplete recruitment report
Decision - CO affirmed
The Board (Henley, Almanza and Barto) affirmed a denial of certification where the recruitment report did not specify all of the recruitment steps utilized. Relying on the decision in Simply Soup , 2012-PER-00940 (Jan. 13, 2015) ( en banc ), the panel concluded that the deficiencies in the content of the report were not cured by the fact that the audit response contained documentation establishing compliance with all of the recruitment obligations.
Institute for Environmental Health, Inc. , 2013-PER-01963 (Aug. 12, 2016)
Issue - Use of wage range in NOF which was not included on the Form 9089
Decision - CO reversed
The employer’s NOF included a wage range. The application form utilized a single rate. Even though the low end of the wage range was above both the prevailing wage and the offered wage, the CO denied. The Board (Henley, Davis and Merck) reversed. First, the panel found the CO’s argument that “the inaccurate wage listed on the NOF could cause documentary evidence involving the wage to be questioned-” too ambiguous to support a denial. The decision also rejected CO’s argument that the “inaccurate wage on the NOF - could become the basis for a denial of a U.S. worker.” The panel noted the use of wage ranges was stated to be permissible by the preamble to the regulation, and that the use of such ranges, as long as the low end is above both the prevailing wage and the offered wage, had been accepted by several other panels.
Syracuse University , 2016-PER-00045 (Aug. 17, 2016)
Issue - Wage rate not in NOF in case filed under § 656.18
Decision - CO reversed
The CO denied the application because the NOF did not state the rate of pay as required by §656.10(d)(4). The employer filed for reconsideration arguing that the applications filed for university professors under § 656.18 are not governed by § 656.10(d)(4) but rather § 656.10(d)(5) which does not require the wage to be included in the NOF. The CO affirmed his denial without addressing the import of § 656.10(d)(5).
The Board (Henley, Almanza and Barto) reversed concluding that “when an application is filed under § 656.18, the NOF requirements are regulated by § 656.10(d)(5), and the NOF does not have to state the rate of pay.” The panel concluded that affirming the CO would require the Board to go directly against the language of the regulation. The decision also noted an FAQ that appeared to support the employer’s interpretation of the regulations.
Ames True Temper, Inc. , 2012-PER-01419 (Aug. 22, 2016)
Issue - Newspaper advertisement that failed to include a travel requirement stated on the Form 9089; whether such an omission violates § 656.17(f)(7) (less favorable terms), and whether the CO’s citation of § 656.17(f)(4) for the first time in a decision on reconsideration can be affirmed
Decision - CO affirmed
The CO denied the application because the employer’s newspaper advertising failed to include a travel requirement contained in the Form 9089. The CO relied on § 656.17(f)(7) concluding that the advertising contained terms less favorable than was being offered the alien. The employer sought reconsideration citing a number of BALCA decisions which questioned the use of § 656.17(f)(7) in this situation. The CO reaffirmed the denial also noting that the application could be denied under § 656.17(f)(4).
The Board (Bergstrom, Johnson and Markley) affirmed. As an initial matter, Judges Bergstrom and Johnson agreed with the employer that § 656.17(f) (7) did not provide a valid ground for denial noting that “The Board declines to engage in the subjective determination of whether a travel requirement constitutes-a ‘less favorable’ condition of employment.” The panel, however, affirmed the CO’s denial based on § 656.17(f)(4), rejecting the employer’s argument that CO could not introduce a new denial ground in his final decision. The decision noted that the employer had not been deprived of any substantive rights because the correction of the deficiency would have required refiling the application. “Even if the CO’s notice to the employer of a particular authority for denial was not made in the appropriate denial letter, the Department’s mandate is not to grant certification to a patently deficient application.” Judge Markley filed a concurring opinion agreeing with the majority regarding the belated introduction of § 656.17(f)(4) but also indicating the she found the § 656.17(f)(7) ground sufficient.
Calhoun County Independent School District , 2012-PER-02592 (Aug. 23, 2016)
Issue - Location of NOF posting; posting at school district’s main office rather than actual worksite
Decision - CO affirmed
The Board (Henley, Barto and Hillson) affirmed a denial where a school district posted the NOF only at the main office and not at the school where the position was actually located. While acknowledging that there might be limited circumstances where workers are so dispersed that posting in a central location would appropriate, the regulation requires posting at the actual worksite and that was clearly feasible here. The decision noted the OSHA posting regulations, which are referenced in PERM regulations, as requiring posting at “every establishment where employees are employed.”
Czech Commerce Ltd. , 2012-PER-01308 (Aug. 25, 2016)
Issue - Alternative requirements; substantial equivalency
Decision - CO affirmed
The Board (Daly, Romero and Price) affirmed a denial a certification concluding that an alternative requirement of a high school diploma and 14 years of experience was not substantially equivalent to the principle experience requirement of a bachelor’s degree and two years’ experience. The decision noted that equivalency was measured, in part, by comparing the SVP years of the primary and alternative experience. The decision noted that the Board had previously rejected the suggestion that equivalency provisions used at USCIS are applicable to PERM applications.
Robert Bosch LLC , 2012-PER-01739 (Aug. 25, 2016)
Issue - Errors in recruitment report not cured during reconsideration
Decision - CO affirmed
The CO denied the application where the recruitment report contained an inconsistency between the number of persons the employer stated had applied (62) versus the number of applicants for whom the employer provided a rationale for rejection (61). On reconsideration, the employer argued that the problem involved a typographical error in the preparation of the recruitment report and only 61 persons had applied. The employer submitted a new report reflecting that number. The CO reaffirmed the denial holding that the attorney’s statement concerning the recruitment report, standing alone, did not overcome the representation in the original recruitment report. The CO noted that the attorney’s assertion was not supported by an affidavit from the employer regarding the preparation of the report. On that basis the CO refused to consider the revised recruitment report pursuant to 20 C.F.R. § 656.24(g).
The Board (Sutton, Geraghty and McGrath) affirmed concluding that the regulations do not permit an employer to utilize the reconsideration process to correct an error in its recruitment report. The decision cited Charles Hankins , 2012-PER-00912 (Nov. 6, 2012) and Simply Soup Ltd. , 2012-PER-00840 (Jan. 13, 2015) ( en banc ) in support of that outcome.
Roshani, Inc. , 2012-PER-03427 (Aug. 30, 2016)
Issue - Rejection of qualified applicants
Decision - CO affirmed
The Board (Henley, Barto and Hillson) affirmed the denial where the CO concluded that the three domestic applicants rejected were qualified for the position under 20 C.F.R. § 656.24(b)(2)(i) based on a “suitable combination of education, training and experience” as potentially supplemented by a “reasonable period of on the job training.”
Foreign Autos , 2012-PER-01881 (Aug. 30, 2016)
Issue - Bona fide job opportunity; alien ownership and control
Decision - CO affirmed
The Board (Henley, Almanza and Wirth) utilizing the totality of the circumstances test first annunciated in Modular Container Systems, Inc. , 1998-INA-00309 (July 16, 1991) (en banc), affirmed the CO’s determination that the alien was sufficiently associated with the employer such that no bona fide job opportunity existed. The panel summarized: “In this case, there are factors which weigh both in favor of and against the presumption that the job was not clearly open to U.S. workers. The Employer is credited with not being related to the Alien, that the Alien was not an incorporator or founder, the Alien is not on the board of directors, the job qualifications are not specialized or unusual, and objectiveness in its evaluation of U.S. workers. However, it appears that the Alien may be in the position to control of influence hiring decisions, the Alien has a majority ownership interest in the Employer, the Alien is a partner and was involved since the incorporation, is involved in the management of the company, there are a small number of employees, and the Employer has one employee who performs the Alien’s duties. Considering the totality of the circumstances, these factors weigh in favor of the presumption. Accordingly, we affirm the CO’s determination that the Employer failed to establish that the job was clearly open to U.S. workers.”