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

Smartzip Analytics , 2016-PER-00695 (Nov. 9, 2016)

Issue - Quantification of requirements in Form 9089, Section H-14

Decision - CO reversed

The Board (Henley, Barto and Davis) reversed a denial which had been based the employer’s failure to adequately quantify the requirements for the special skill described in section H-14 of the Form 9089 application form. The CO had concluded that the language contained in that section was so vague that he was unable to determine if the alien actually qualified for the position and thus whether the job was being offered at the employer’s actual minimum requirements. 20 C.F.R. § 656.17(i). The panel reversed, concluding that nothing on the application form or the filing instructions suggests any obligation to provide durational requirements for the special skills listed in Section H-14 and therefore “an application cannot be denied on its face based on the failure to provide a duration requirement for special skills listed in Section H.14, short of legally sufficient notice of a requirement to do so.”

Amanda Hilburn , 2012-PER-02736 (Nov. 16, 2016)

Issue - Where experience required in job duties, it is permissible to evaluate applicants based on duties described in section H-11 of the Form 9089

Decision - CO reversed

The Board (Geraghty, Sutton and McGrath) reversed a denial based on the improper rejection of a domestic applicant. The CO had concluded that the employer could not reject an applicant for not possessing skills that were identified in section H-14 of the Form 9089. The panel agreed with the employer that where the application required experience in the job offered it was appropriate for the employer to evaluate applicants based on the job duties described in section H-11.

P. Huang Inc. , 2012-PER-02583 (Nov. 16, 2016)

Issue - Documentation of use of private placement firm; letter from placement firm found to be adequate

Decision - CO reversed

The Board (Geraghty, Calianos and Sutton) reversed the denial concluding that the employer had adequately documented its use of a private placement firm by submitting a letter from California Professional Staffing, which stated in pertinent part: “After receiving your notice of recruiting an Accounting Clerk, we disseminated a job opening information update to our clients including companies and individual job seekers. Per your request, we placed this job opening in our networking for 35 days starting from May 2, 2011 through June 10, 2011.” The panel noted its agreement with other panels that concluded that § 656.17(e)(1)(ii)(F) provides a flexible standard on what constitutes adequate documentation and not strict requirements.

Berwick Offray LLC , 2012-PER-02678 (Nov. 16, 2016)

Issue - Receipt of resumes during supervised recruitment

Decision - CO affirmed

The Board (Henley, Almanza and Hillson) affirmed a denial where the website ad used during supervised recruitment indicated that applicants could send resumes either to the CO or to the employer. The information about sending resumes to the employer was added after the CO had approved the draft advertisement. The panel agreed with the CO that the inclusion of the second address could frustrate the CO’s implementation of the supervised recruitment process. The decision analogized to cases holding that a NOF that contained the address the SWA along with that of the CO is deficient.

Cognizant Technology Solutions US Corp. , 2012-PER-02519 (Nov. 16, 2016)

Issue - Failure to respond to CO’s request for information about the business necessity for unanticipated work locations

Decision - CO affirmed

The application indicated that the employer was offering positions involving substantial long-term travel to unanticipated work locations. The CO denied the application because the employer failed to respond to a request for information that would establish the business necessity for the unanticipated work site language as well as a “comprehensive listing of current client locations-and the percentage of time -expected-in each location.” The CO indicated that this information was necessary so that the CO could determine what additional recruitment might be necessary under the supervised recruitment process.

The Board (Geraghty, Calianos and Sutton) affirmed, noted that “[u]nder the supervised recruitment regulations, the CO ‘has the authority to . . . direct an employer submit supplementary information and/or documentation whether in the course of an audit or otherwise . . . [and] may deny certification based on a failure to timely supply such supplementary information and/or documentation.’ Rancho Villas Restorante , 2012-PER-00603, slip op. at 4 (Apr. 3, 2014).” The employer did not deny that it failed to respond, but argued that the CO already had the requested information in the Form 9089 or the audit response, and that the failure to response to the RFI was an inadvertent and harmless omission. The panel rejected this argument, finding that there was no information in the Form 9089 or audit response that addressed the business necessity of multiple client work locations or revealed the Employer’s current client locations and the percentage of work being performed, or expected to be performed, at the locations. The panel also found that the case did not involve an innocent or minor error or omission but “a complete failure by the Employer to respond to a clear request by the CO for additional documentation that the CO needed in order to determine whether to expand the supervised recruitment beyond the intended area of employment in Teaneck, New Jersey to include the Employer’s undisclosed client locations where work is actually performed.”

Spring Branch Independent School District , 2012-PER-02305 (Nov. 16, 2016)

Issue - Documentation of use of a job fair

Decision - CO affirmed

The Board (Calianos, McGrath and Sutton) affirmed a denial based the employer’s failure to adequately document its participation in a job fair. The decision quoted an earlier ruling in a case involving the same employer, Spring Branch Independent School District , 2012-PER-01178 (Jan. 21, 2015), in which the panel stated “[w]e interpret the regulation as requiring some material from the host of the job fair advertising or noting an employer’s participation” and that the “mere assertion by an employer that it attended is not enough under the regulation.”

[Editor’s note: It is interesting to juxtapose this ruling with the holding in McKinsey & Co., Inc. , 2012-PER-02771 (Oct. 28, 2016), where a different panel held that on-campus recruiting could be established without documentation from the educational institution. The employer in McKinsey provided pages from its own website advertising its on-campus recruitment program at various colleges and universities. The pages provided specific information and demonstrated collaboration with at least some colleges and universities.]

Tek Services LLC , 2016-PER-00207 (Nov. 16, 2016)

Issue - Advertisements stating “competitive salary”; § 656.24(b)(2) is not a valid catch-all denial ground

Decision - CO reversed

The CO denied the applications because the employer included in its advertising a statement that it was offering a “competitive salary.” The CO stated that “[t]he ‘competitive salary’ language puts too much burden on the U.S. applicant to determine what the position will pay, and thus act as [sic] deterrent to receiving applications from qualified U.S. workers.” The CO relied solely on 20 C.F.R. § 656.24(b)(2) as the regulatory basis for the denial.

The Board (Henley, Almanza and Barto) reversed. The panel stated:

   The CO offers no explanation as to precisely how this provision has been violated. Section 656.24(b) describes the grounds upon which labor certifications can be granted or denied. As a practical matter, virtually all denials are based on § 656.24(b)(1), i.e., the employer’s failure to comply with some specific regulatory obligation such as those found either in § 656.10 or § 656.17. Section 656.24(b)(2) simply provides guidance to the CO in assessing employer compliance with the attestation contained in § 656.10(c)(9) that any domestic applicants have been rejected for lawful reasons. The decision here fails to identify any applicants who the CO believes were unlawfully rejected or to otherwise suggest the existence of a qualified, willing and available domestic worker. Thus, this section does not provide a sustainable ground for the denial.

   We reject the CO’s effort to utilize § 656.24(b)(2) as a catch-all denial ground encompassing any employer action that the CO deems problematic, despite citing no specific regulatory requirement that the employer has violated. See also, Patni Americas , 2013-PER-03224 (May 10, 2016). To the extent the CO believes that an employer has not recruited in good faith, that issue should be addressed under 20 C.F.R. § 656.10(c)(8). East Tennessee State University , 2010-PER-00038 (April 18, 2011) ( en banc ). (The responsibility to recruit in good faith includes not placing “unjustified hurdles in the path of U.S. applicants-”)

Slip op. at 4.

JC World Bell Wholesale Co., Inc. , 2016-PER-00035 (Nov. 16, 2016)

Issue - Presumption of receipt applied to CO where certified mail receipt showed signature of current DOL employee

Decision - CO reversed

The CO denied the application because the employer allegedly did not respond to a Request for Information. The employer sought reconsideration by providing proof of mailing along with a delivery confirmation signed by a DOL employee. The CO affirmed his denial.

The Board (Henley, Almanza and Barto) reversed. The decision noted prior Board rulings on the invocation of the presumption that documents that are mailed are received. The panel noted that while that presumption was normally relatively weak, it gained significant weight where there was actual evidence of the mailing and delivery. The decision also pointed out that the CO ignored several opportunities to address the significance of the delivery receipt.

Ace Homecare, LLC , 2016-PER-00056 (Nov. 21, 2016)

Issue - Reliance on USCIS NOF template concerning address of appropriate CO’s office

Decision - CO affirmed

The Board (Henley, Barto and Merck) affirmed a denial based on the employer’s failure to include the CO’s address on the NOF. The decision rejected the employer’s argument that the CO was estopped from denying certification because the employer was using a NOF template prepared by USCIS and which a DOL FAQ authorized employers to use. The panel stated: “Based on the plain meaning of the regulation at § 656.10(d)(3)(iii), read together with text of the sample NOF, it is clear that use of the sample NOF requires an employer to utilize the website link to determine the address of the CO ‘holding jurisdiction over the location of proposed employment,’ and list the address on its NOF. By failing to select the appropriate address from the link and list it on the NOF, the Employer failed to comply with the regulation at § 656.10(d)(3)(iii).”

Kohn Pedersen Fox Associates PC , 2012-PER-02772 (Nov. 25, 2016)

Issue - Rejection of applicants; overqualified, assumed salary demands

Decision - CO affirmed

The Board (Sutton, Calianos and McGrath) affirmed a denial where the employer rejected a number of domestic applicants either because they were overqualified or because their resumes suggested salary expectations higher than the offered wage. The decision relies on numerous prior decisions holding that over-qualification is not a lawful reason for rejection. Likewise, precedent teaches that applicants cannot be rejected solely on the ground that their applications contained wage demands that exceeded the offered wages without the employer submitting documentation that the applicant was offered and refused the offered wages.

Paramount Financial , 2015-PER-00218 (Nov. 30, 2016)

Issue -Combination of occupations; business necessity not established solely on assertions of convenience or practicality

Decision - CO affirmed

The Board (Geraghty, Calianos and Sutton) affirmed a denial based on the employer’s failure to demonstrate in an application involving a combination of occupations with duties including marketing and legal responsibilities, either that the combination was normal or that it was justified based on business necessity. The Employer had provided a letter from the Employer’s Secretary, asserting that “the decision to combine occupations into a single position was motivated by budget constraints and that hiring more than one person would be ‘cost-prohibitive.’” Slip op. at 8. The panel relied on a number of prior decisions holding that business necessity could not be established by “an assertion of convenience or practicality.”