September 2015
Lucid Technologies , 2012-PER-00774 (Sept. 3, 2015)
Issue – Alien’s educational qualification at the time of hire; new evidence during reconsideration
Decision - CO Reversed
The CO denied the application without an audit because the Form 9089 did not establish that the alien met either the primary job requirement, a BS in computer science or the alternative requirement, a MS degree and three years’ experience in the job. On reconsideration the employer argued that it had inadvertently listed the incorrect dates for the alien’s work experience. It further noted that the alien possessed the BS in computer science and therefore met the primary experience requirement as well. The CO refused to reconsider concluding that 20 C.F.R. § 656.11(b) precluded changing the application to reflect a different employment history and 20 C.F.R. § 656.24(g) precluded consideration of evidence regarding the BS degree.
The Board (Geraghy, Calianos and MeGrath) reversed. While agreeing that employer could not amend its application to adjust the alien’s work experience, the Board determined that the employer could provide documentation of the BS degree during reconsideration because it had not been given a prior opportunity to provide that information. The decision noted that the Form 9089 asks the employer to specify the highest level of relevant education received. It further observed that there was no place on the Form where the alien’s possession of a BS degree could have been memorialized.
Accent-Media Productions, Inc. , 2012-PER-00712 (Sept. 23, 2015)
Issue - Substantial failure to respond to audit; complete recruitment report
Decision - CO affirmed
Certification was denied because the employer’s recruitment report did not contain information concerning how the domestic applicants were contacted and because this deficiency constituted a "substantial failure" to provide required documentation. 20 C.F.R. § 656.20(b). On reconsideration the employer contended it had supplied that information initially but, in addition, submitted a chart showing the means of contact. The CO refused to consider the chart which was submitted for the first time on reconsideration and affirmed the denial.
The Board (McGrath, Geraghty and Calianos) affirmed. Since the information requested by the CO was not specifically described in the regulation as material the employer needed to maintain, the Board applied the principles enunciated in SAP America Inc. , 2010-PER-01250 (Apr. 18, 2013) (en banc) to determine if the CO’s request was reasonable and the documentation in question was material enough that its absence could be considered a "substantial failure" to provide required documentation. The Board concluded that both these criteria had been satisfied and that the employer’s effort to provide missing information on reconsideration was precluded by 20 C.F.R. § 656.24(g)
Step by Step Day Care LLC , 2012-PER-00737 (Sept. 25, 2015)
Issue – Bona fide job opportunity; alien influence or control
Decision - CO Affirmed
The Certification was denied as a result of the CO’s conclusion that the alien bore such a close familial relationship with the employer that a bona fide job opportunity did not exist. In this case the alien and her husband owned 100% of the company and the hiring manager was a subordinate of the owner. On reconsideration the employer argued that she and her husband were not involved in the hiring decision and since they possessed E-2 investor visas, the employment opportunity was not dependent on the granting of a labor certification. The CO was unconvinced and reaffirmed the denial.
The Board (McGrath, Geraghty and Calianos) affirmed. The decision relied on the totality of the circumstances test first enunciated in the pre-PERM decision in Modular Container Systems, Inc. ,1989-INA-00228 (July 16, 1991) (en banc) and which was discussed in the preamble to PERM regulation and adopted in several PERM decisions. The Board determined that virtually all of the Modular Container factors were met thus warranting an affirmance.
Fair Winds Farm , 2012-PER-00736 (Sept. 28, 2015)
Issue - Equivalent terms of employment; housing provided to alien
Decision – CO Affirmed
The Certification was denied because the newspaper advertising did not reveal that the employer was offering to allow the worker to live rent free on-site; an option which the alien had taken advantage of. On reconsideration the employer argued that it was not required to include all the terms of employment in its ads and that it thought that offering the live-in option might discourage applicants although that option would have been offered to any domestic applicant who inquired. The CO denied reconsideration.
The Board (McGrath, Calianos and Geraghty) affirmed, relying principally on its decision in Needham-Betz Thoroughbreds, Inc. , 2011-PER-002104 (Dec. 31, 2014) which held that the availability of free housing was such a significant benefit that needed to be disclosed in the advertising.
Simona Vricella , 2012-PER-00373 (Sept. 29, 2015)
Issue – Prevailing wage validity period; correction of typos
Decision - CO Affirmed
Certification was denied because the prevailing wage validity period identified on the Form 9089 exceeded the one year permitted by the regulations. On reconsideration the employer attributed to problem to a clerical error and noted the appropriate validity period. The CO affirmed the denial.
The Board (Romero, Kennington and Rosenow) affirmed relying on 20 C.F.R. § 656.11(b) and 20 C.F.R. § 656.24(g) for the dual propositions that changes to the Form 9089 will not be permitted and that new evidence cannot, generally, be submitted for the first time as part of a motion for reconsideration.
Stone Well Services , 2012-PER-00339 (Sept. 29, 2015)
Issue – Complete job order; supervised recruitment
Decision – CO Affirmed
The CO denied the application because the job order did not contain the CO’s job reference number as required by the Notice of Supervised Recruitment. On reconsideration the employer argued that there was no appropriate place on the job order form to include that number. The CO rejected that argument noting that there were places on the form where the number could have been included such as the free text field where the employer provided the job description.
The Board (Romero, Kennington and Rosenow) affirmed noting that the employer was clearly on notice that the reference number needed to be included in the job order and found “baseless” the employer’s argument that there was no place to include the number. The decision also relied on earlier cases holding that applications in supervised recruitment are subject to “special scrutiny” giving the CO considerable discretion in setting recruitment standards.