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


Bally Gaming, Inc. , 2012-PER-01729 (Sept. 2, 2016)

Issue - Worksite location; prevailing wage determination; alien’s current location is not determinative

Decision - CO reversed

The CO denied the application because it identified the job opportunity as being in New Jersey when the alien, who was currently performing the job, lived in Georgia. The audit questioned the apparent disconnect and the employer observed that the alien worked in both locations but that the labor certification was for a full-time position in New Jersey. The CO denied the application based on the employer’s use of the New Jersey PWD rather than one for Georgia. The employer argued on reconsideration that the CO had misconstrued its audit response and that the position was exclusively in New Jersey. The CO again denied, adding as an additional ground that the job contained a travel/relocation requirement that was not disclosed in violation of 20 C.F.R. § 656.17(f)(4).

The Board (Sutton, Geraghty and McGrath) reversed largely accepting the employer’s contention that whatever the alien’s current work arrangements, the job for which certification was being sought was exclusively in New Jersey. “[T]the is no basis in the INA or PERM regulations for requiring that the job opportunity in the Form 9089 be identical to the temporary position that the sponsored alien holds (or previously held).”


Oracle America, Inc. (successor to Inquira ), 2012-PER-02194 (Sept. 7, 2016)

Issue - Preferences as requirements; multiple job opportunities

Decision - CO affirmed

The Board (Henley, Almanza and Barto) affirmed a denial in which the employer’s advertising indicated that the position required 2-5 years of experience whereas the Form 9089 application only listed 2 years of experience. Applying the principle that employer preferences are treated as requirements, the decision concluded that 20 C.F.R. § 656.17(f)(6) had been violated. The decision rejected the employer’s argument that the advertisement addressed multiple vacancies noting that the language in the ad did not suggest multiple positions and, even if it did, there was no indication that they did not share the same experience requirements.


IT & Ebusiness Consulting Services, Inc. , 2012-PER-01901 (Sept. 8, 2016)

Issue - Preferences as requirements; Kellogg language

Decision - CO affirmed

The Board (Henley, Davis and Merck) affirmed a denial in which the NOF indicated that the job required “Bachelors/Masters Degree” whereas the application form only required a Bachelor’s degree albeit with 5 years of experience. Applying the principle that employer preferences are treated as requirements, the decision concluded that 20 C.F.R. § 656.17(f)(6) had been violated. The decision rejected the employer’s argument that the inclusion of the Kellogg language in Section H-14 of the form somehow ameliorated the violation. The decision noted that the Kellogg language was irrelevant since the application did not contain any alternative job requirements and, in any, case the gratuitous inclusion of that language would not cure the § 17(f)(6) violation.


Rivet Logic Corp. , 2012-PER-01827 (Sept. 9, 2016)

Issue - Location of NOF posting; employer change of address

Decision - CO reversed

The CO denied the application because the NOF filed with the audit response indicated a posting location different than the location used for the posting that was made during supervised recruitment. On reconsideration, the employer established that in the time between the two postings its office had moved. The CO reaffirmed his denial concluding that the employer had never notified the CO that its location had moved as required by an FAQ.

The Board ( McGrath, Geraghty and Calianos) reversed on the grounds that no regulatory provision required the employer to notify the CO that it had changed location and that the NOF posting during supervised recruitment complied with the regulatory requirements.


Farahmand Law Firm, P.C. , 2012-PER-03237 (Sept. 13, 2016)

Issue - Newspaper which has publication edition of a full week, including a Sunday, does not meet Sunday edition requirement of 656.17(e)(1)(i)(B)(1)

Decision - CO affirmed

The Board (Henley, Barto and Hillson) affirmed a denial where the employer utilized the Dallas Observer to satisfy its obligation to advertise in two Sunday editions of a newspaper of general circulation. The decision rejected the Employer’s apparent argument that “a weekly paper suffices to meet the Sunday publication requirement since by definition each edition runs for a week, including Sunday. However, we agree with the CO that the regulation simply means what it specifically says—that the position must be advertised on two different Sundays in a newspaper’s Sunday edition. If a newspaper of general circulation with a Sunday edition is available for the advertisement, there is no valid reason to allow the use of a weekly publication as a substitute.” Slip op. at 3 (citation omitted). The panel noted that there are specific exceptions to the requirements for two Sunday ads which did not apply.


Zarifa Inc. , 2012-PER-02241 (Sept. 13, 2016)

Issue - Notice of Filing inadequate where it did not state that it was posted as the result of the filing of a PERM application; mere citation to 20 C.F.R. § 656.10(d) is not adequate

Decision - CO affirmed

The Board (Henley, Barto and Davis) affirmed a denial where the NOF indicated that it was being posted “in compliance with 20 C.F.R. § 656.10(d)” but did not state that a PERM application had been filed. That the NOF state that a PERM application is being filed is required by § 656.10(d)(3)(i). The panel rejected the Employer’s argument that citing the regulation was sufficient since a reader could easily discover the meaning of the citation through a Google search.


Bank of America , 2012-PER-02227 (Sept. 13, 2016)

Issue - Local newspaper vs. newspaper of general circulation

Decision - CO reversed

The Board (Henley, Almanza and Merck) reversed a denial based on the employer’s use of the same newspaper as both a newspaper of general circulation and a local newspaper. The panel declined to defer to an FAQ that specifically mandated such an outcome. “The ETA may have a reasonable ground for wanting the additional professional recruitment steps to be completely different media than the steps used for the mandatory newspaper or professional journal advertisements, but it did not write a regulation that provided for such a requirement-” This outcome is consistent with the earlier rulings in Symrise , 2012-PER-00558 (Oct. 18, 2012) (vacated on procedural grounds) and Delta Search Labs , 2011-PER-02871 (Apr. 24, 2014) but contrary to the outcome in JM Youth Corp. , 2011-PER-01398 (Dec. 26, 2012).


Pizzazz Strides LLC , 20122-PER-01565 (Sept. 13, 2016) Issue - Disclosure option to live on employer premises

Decision - CO affirmed

The Board (Romero, Price and Kennington) affirmed a denial of certification based on the employer’s failure to disclose in any of its advertising that the fact that the employee could live on the employer’s premises violated 20 C.F.R. § 656.17(f)(7). The decision adopted the reasoning in Needham-Betz Thoroughbreds , 2011-PER-02104 (Dec. 31, 2014) that while not every job duty or condition needs to be disclosed, housing is special case. “[A] free housing benefit is of such paramount economic importance, it must be included in an advertisement.” (quoting Needham ). The decision reached this result despite the fact that in this case the housing was not being offered free of charge.


J & C Restaurant , 2012-PER-01786 (Sept. 15, 2016)

Issue - Compliance with Supervised Recruitment instructions; pre-hire testing requirement not in approved copy

Decision - CO affirmed The Board ( Geraghty, McGrath and Sutton) affirmed a denial where the employer included in its advertising a testing requirement that was not included in the advertising copy approved by the CO for a case in supervised recruitment. The Board rejected the employer’s argument that the test was impliedly contained in the job requirement that applicants show “demonstrated ability” to perform the job.


Unified Ltd, d/b/a Pan American Banana , 2012-PER-01757 (Sept. 27, 2016)

Issue - Inadequate audit response; failure to provide documentation of how an applicant had been initially contacted, and of how applicants had been notified of their rejection

Decision - CO affirmed

The Board ( Sutton, Geraghty and McGrath) affirmed a denial based on the employer’s failure to comply with the request in the audit letter that the employer document “how the U.S. worker was informed he or she did not qualify for the job opportunity.” Two U.S. workers had applied for the position and while the recruitment report supplied lawful reasons for their rejection, the employer did not submit the information required as to how the workers had been notified of their rejection, and did not document how one of the workers has been initially contacted. The panel concluded that “the omitted documentation was material enough to constitute a substantial failure to provide documentation.”


QAD Inc. , 2012-PER-01997 (Sept. 27, 2016)

Issue - Actual minimum requirements; alien not qualified

Decision - CO affirmed

The Board (Geraghty, Calianos and Sutton) affirmed a denial where the alien did not possess the Bachelor’s degree that the application indicated was required to qualify. The panel rejected the employer’s argument that the alien possessed a credentials evaluation showing the alien had the equivalent of a BS degree based on a combination of education and experience and that the Employer’s willingness to accept such a combination was reflected in section H. 14. The panel affirmed the CO’s reasons and also noted the credentials evaluation, even it had been submitted, would be considered as an effort to modify the application in violation of 20 C.F.R. § 656.11(b).


Cognizant Technology Solutions US Corp. , 2013-PER-01448 (Sept. 29, 2016) ( erratum Sept. 30, 2016)

Issue - Disclosure of wage enhancements

Decision - CO reversed

The Board (Henley, Almanza and Davis) reversed a denial based on the employer’s failure to disclose that the employer provided a location-based salary adjustment above the offered wage that varied by location. The employer characterized these adjustments as “COLAs” (cost of labor adjustments). The CO had become aware of the practice after reviewing an offer letter sent to a domestic applicant that was supplied during the audit. The decision confined its analysis to the NOF since no other aspect of the advertising requires a disclosure of the wage. The opinion rejected the employer’s argument that the COLA was not a wage component but rather a benefit that did not require disclosing. While agreeing with the CO about the desirability of disclosure, the decision reversed on notice grounds concluding that employers had not been adequately apprised that this practice needed to be disclosed. “ETA has issued no guidance whatsoever alerting employers to the CO’s position that [this type of wage adjustment] needed to be specifically disclosed in the application and advertising. Thus, even assuming that the CO could reasonably demand [the disclosure of the COLA], the need for such a disclosure is hardly self-evident and nothing would have informed this Employer of its responsibility in [this] regard.” The decision also noted that the Form contained no mechanism for disclosing such information. The decision also reverses the denials in 371 other identical cases.