PERM Decisions of the Board of Alien Labor Certification Appeals
December 2015


Eteam, Inc. , 2013-PER-00424 (Dec. 1, 2015)

Issue - Job requirements not contained in NOF

Decision – CO Reversed

The CO denied the application because the NOF did not reflect the specific skills listed on the Form 9089 such as a Master's degree in computer science. On reconsideration the employer argued that section 656.17(f)(3) requires only a general description of the vacancy and cited a FAQ to that effect. The CO denied reconsideration concluding that the NOF must indicate all the duties and requirements listed on the application.

The Board (Henley, Almanza and Davis) reversed. The decision relied principally on the rational provided in the Architectural Stone Accents, Inc. , 2011-PER-02719 (July 3, 2013) which focused on the regulatory language that requires on a description of the vacancy "specific enough to apprise the U.S. workers" of the job opportunity. The decision concluded that the language in the NOF met this standard. The decision also quotes extensively from the FAQ as supporting its conclusion.


Teletech Services Corp. , 2012-PER-00503 (Dec. 1, 2015)

Issue – New issues raised by CO on appeal

Decision – CO Reversed

The CO denied the application because he determined that the employer's advertisement in IT Careers was unacceptable because that publication was not a "professional journal." On reconsideration the employer argued that IT Careers was the recruitment section of Computer World , a well-known professional journal. The CO affirmed his decision concluding that the employer's ground for reconsideration would require amending the application in violation of 20 C.F.R. § 656.11(b). On appeal the CO withdrew this ground for denial and sought a remand or affirmance on the ground that the employer was not authorized under the regulations to use a journal because the advanced degree requirement was not accompanied by an experience requirement.

The Board (Henley, Almanza and Merck) rejected the CO request for remand and reversed the denial relying on its earlier decision in Webroot Software, Inc. , 2012-PER-00275 (Oct. 21, 2014) which involved essentially identical facts. In Webroot, the panel declined to remand because the issue presented was subject to interpretation and had not been briefed by the parties, the panel did not find under the facts that a strong concern was presented about a substantial deficiency with the labor market test, and "the orderly adjudication of a PERM application requires attentiveness not just on the part of employers, but also on the part of the CO."


White Oaks Country Club , 2012-PER-00743 (Dec. 1, 2015)

Issue – Failure to timely respond to audit; employer's travel schedule did not overcome 13 month delay

Decision – CO Affirmed

The employer asserted that "excessive travel" presented him from timely responding to the CO's audit notification. The Board (McGrath, Geraghty and Calianos) affirmed the denial based on the employer's almost 13 month delay in responding to the audit request.


Screen Printers Resource, Inc. , 2012-PER-00825 (Dec. 1, 2015)

Issue – Content of Web posting; job open to U.S. applicants

Decision – CO Reversed

The CO denied the application because the posting on the employer's website failed to identify the job location. The CO cited both 20 C.F.R. §§ 656.17(f)(4) and 656.10(c)(8) in support of the denial. On reconsideration the employer argued that section 656.17(f)(4) was not relevant to website posting and the posting clearly apprised of the job opportunity. The CO refused to reverse his position noting that the website posting needs to contain the information required by section 656.17(f). He also concluded that the missing information concerning job location might have a chilling effect on potential applicants and that a logical nexus between the website posting and the job opportunity on the Form 9089 had not been established.

The Board (Henley, Almanza and Davis) reversed the denial. Relying on Symantec Corp. , 2011-PER-01856 (July 30, 2014) (en banc), the decision rejected the CO's reliance on section 656.17(f) since on its plain language that provision applies exclusively to newspaper and journal ads. With respect to section 656.10(c)(8) the panel observed that the additional professional advertising need only advertise the occupation involved and that the website posting, while not detailed, was not misleading. In that context the panel concluded that the omission of a reference to the job location "does not, in itself, lead to a conclusion that the job was not clearly open to U.S. workers."


Mindlance, Inc. , 2012-PER-00986 (Dec. 1, 2015)

Issue – Travel requirements not disclosed in advertising

Decision – CO Affirmed

The CO denied the application because the newspaper advertising contained no reference to travel whereas the Form 9089 provided that the job might require work at "[v]arious unanticipated worksites throughout the US." The employer sought reconsideration citing Amsol, Inc. , 2008-INA-112 (Sept. 3, 2009) and Paradigm Infotech , 2007-INA-0003 (June 15, 2007) for the proposition that the employer is not necessarily required to specify the job site. The CO reaffirmed the denial.

The Board (Henley, Almanza and Davis) affirmed relying on established principles holding that travel requirements found in the Form 9089 must be included in the advertising. Sphere Offshore Solutions , 2012-PER-69 (April 1, 2014); KPMG, LLP , 2011-PER-2673 (Jan. 25, 2013). The decision noted that the cases cited by the employer addressed a regulatory provision under earlier regulations and were not relevant in PERM.


Precision Stairs , 2012-PER-01047 (Dec. 2, 2015)

Issue – CO's address in the NOF

Decision – CO Affirmed

The Board (Henley, Almanza and Davis) affirmed a denial based the employer's failure to include the address of the CO in the NOF. The decision also supported the CO's refusal to accept a new NOF submitted for the first time with the request for reconsideration.


Artesia Public Schools , 2012-PER-00996 (Dec. 2, 2015)

Issue – PWD validity period

Decision – CO Affirmed

The Board (Henley, Davis and Merck) affirmed denial where the Form 9089 listed a PWD validity period longer than one year. The employer had argued that the dates reflected a typographical error but the CO noted that the employer had not submitted a copy of the PWD with its request for reconsideration and therefore the employer's assertions could not be verified.


Creative Contracting , 2012-PER-00877 (Dec. 2, 2015)

Issue – Advertising during PWD validity period

Decision – CO Affirmed

The Board (Henley, Almanza and Merck) affirmed a denial where the employer posted its job order 14 days before the beginning of PWD validity period and filed its application 65 days after it expired.


Libsys, Inc. , 2012-PER-00873 (Dec. 2, 2015)

Issue – Job requirements in JO not in 9089; Symantec

Decision – CO Reversed

The CO denied the application because the contained an experience requirement that exceeded what was provided on the Form 9089.

The Board (Henley, Almanza and Merck) reversed the CO relying on Symantec and other cases holding that the requirements of 20 C.F.R. § 656.17(f) do not apply to the content of the job order.


Sabina Schlumberger , 2012-PER-00732 (Dec. 2, 2015)
New York Mutual Trading , 2012-PER-00723 (Dec. 2, 2015)

Issue – Incomplete application; correction of typos

Decision – CO Affirmed

In these similar cases, the Board (McGrath, Geraghy and Calianos) affirmed denial based on the employers' failure to fill out several sections on the Form 9089. The employers argued the problem resulted from typographical errors and submitted a corrected 9089 with their requests for reconsideration. The decisions agreed with the CO that section 656.11(b) precluded the employer from modifying the content of its original application.


Rust College , 2012-PER-00718 (Dec. 8, 2015)

Issue – Recruitment during PWD validity period; correction of typos

Decision - CO Affirmed

The Board (McGrath, Geraghty and Calianos) affirmed a denial where the neither the earliest date of recruitment nor the filing of the application occurred during the PWD validity period. The panel rejected the employer's argument that denial arose from a typographical error.


Tomato Man Produce , 2012-PER-00872 (Dec. 8, 2015)

Issue – PWD validity period; correction of typos

Decision – CO Affirmed

The CO denied the application because the PWD validity period exceeded one year. The employer argued on reconsideration that the problem arose from a typographic error and that the CO‘s "best practices" published on its website allowed it to make a correction to this kind of problem. The CO did not address the issue of the "best practices" and reaffirmed the denial.

The Board (Henley, Almanza and Merck) affirmed relying principally on the language in the preamble to the 2007 regulation indicating ETA's unwillingness to permit changes to the application after filing.


Alcorn State University , 2012-PER-00726 (Dec. 10, 2015)

Issue – Benefits equally available to domestic workers; housing

Decision – CO Affirmed

The CO denied the application because the employer provided to the alien the benefit of on-site housing that was not offered to domestic applicants and thus violated 20 C.F.R. § 656.17(f)(7). The employer argued on reconsideration that its required advertising need not contain all the elements of the job opportunity. The employer also noted that the on-campus housing was neither free nor required. The CO affirmed the denial.

The Board (McGrath, Geraghty and Calianos) affirmed relying principally on the reasoning contained in the panel's earlier decision in Needham-Betz Thoroughbreds, Inc. , 2011-PER-02104 (Dec. 31, 2014). While acknowledging that § 656.17(f)(7) does not require disclosure of all terms of employment, Needham-Betz noted that free housing is " a huge income enhancement that is not readily assumed to be part of an employment opportunity" and, as such, needed to be disclosed in the advertising. The panel reached the same conclusion here even though the housing was not free. While the actual market value of the housing was not clear, the decision noted that the employer described the housing as a "benefit" and as an "additional means of attracting faculty…." Based on that admission, the panel concluded that employer had failed to establish that the housing was not a substantial benefit.


Good Luck News , 2012-PER-00710 (Dec. 10, 2015)

Issue – Rejection of qualified domestic applicant; failure to interview

Decision – CO Affirmed

The CO denied the application because the employer rejected a domestic applicant who appeared to be qualified for the position. The employer identified the position as "Merchandise Buyer," and as requiring two years' experience in the position. The employer failed to consider a domestic applicant who had the requisite years of experience but, according the employer "did not possess knowledge of Indian, Pakistani or Bangladeshi groceries." In denying the application, the CO noted that this type of specialized experience was not noted on the Form 9089. On reconsideration, the employer argued that this specialized experience was inherent to the position and, alternatively, the denial was the result of a "technical error" in preparing the application which the employer should be allowed to correct. The CO affirmed the denial.

The Board (McGrath, Geraghty and Calianos) affirmed noting the absence of anything on the Form 9089 referencing the need for this specialized experience. The decision relied on the prohibition on making changing the application contained in 20 C.F.R. § 656.11(b).


Terrence O'Neill , 2012-PER-00404 (Dec. 14, 2015)

Issue – Timing of job order; § 656.17(e)(2) and six months v. 180 days

Decision – CO Reversed

The CO denied the application because the employer placed its job order more than 180 days from the filing of the application. On reconsideration the employer argued that the mailing date of the application should be utilized in assessing the timing of job order filing. The CO rejected this suggestion and affirmed the denial.

The Board (Almanza, Henley, Judge Colwell dissenting) affirmed the denial on a different ground. The decision viewed the regulation governing the timing of the recruitment, 20 C.F.R. § 656.17(e)(2) as potentially contradictory because of the references to "within six months" versus "no more than 180 days." In this case, the employer filed its application 181 days of placing the job order but still within six months. The majority declined to "penalize" the employer because of this inconsistency and reversed the denial.

In dissent, Judge Colwell objected to the majority relying on an argument not raised by the employer and also disagreed with the notion that the regulation was contradictory.


IT Works International, Inc. , 2012-PER-00659 (Dec. 17, 2015)

Issue - Travel requirements disclosed in newspaper advertising; § 656.17(f)(7) as basis for denial

Decision - CO Affirmed

The CO denied the application because the Form 9089 described the job opportunity as involving "unanticipated locations throughout the U.S." and newspaper ads were silent on this subject. On reconsideration the employer argued that the information omitted from the advertisement would make the job more appealing to domestic applicants. The CO reaffirmed the denial although he referenced only 20 C.F.R. § 656.17(f)(7), the requirement that advertisements "[n]ot contain wages or terms and conditions of employment that are less favorable than those offered to the alien," whereas in the original denial he had also relied upon 20 C.F.R. § 656.17(f)(4), the requirement that advertisements must "[i]ndicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity."

The Board (Henley, Davis and Merck) affirmed. The decision discussed the case law expressing skepticism concerning the use of § 656.17(f)(7) in this class of cases because travel can be considered either a benefit or a burden depending on the individual applicant, and because an advertisement that is silent as to travel requirements technically does not "contain" a less favorable term or condition. The panel found, however, that other panels that had "overwhelmingly" approved the CO's reliance on that regulation, and stated that "[a]lthough not every term and condition need be included in advertisements, it is clear through the regulations and FAQs that travel requirements always need to be included in advertisements."


New York City Dept. of Education , 2012-PER-03049 (Dec. 21, 2015)

Issue – Rejection of qualified applicant

Decision - CO Reversed

The CO denied the application because he concluded the employer had improperly rejected two domestic applicants on the grounds that they lacked state certification to teach chemistry. The CO noted that the Form 9089 only required state certification and did not mention any field. On reconsideration the employer argued that the requirement for the certification in chemistry was inherent considering that the job opportunity involved a high school chemistry teacher. The CO reaffirmed the denial noting that the employer was required to submit a complete application including all requirements.

The Board (Geraghty, Calianos and McGrath) affirmed. The decision rejected the employer's reliance on two pre-PERM cases involving "implied" job requirements. Veterans Admin. Med. Ctr. , 1988-INA-70 (Dec. 21, 1988) (en banc) and Norfolk Va. Public School Sys. , 1999-INA-00124 (Aug. 18, 1999). With respect to the Norfolk the panel decision noted that the decision specifically refused to address whether position of a teaching license was inherent to the job opportunity. With respect to the VA case, which dealt more generally with the question of implied job requirements, the panel concluded that it was a pre-PERM case not binding on the panel and, in any case, that the requirement for a certification in chemistry is not so obvious as to meet the standard set in that decision.


New York City Dept. of Education , 2012-PER-03432 (Dec. 21, 2015)

Issue –Due process; failure to address issues raised in motion for reconsideration

Decision – CO Reversed

The CO denied the application on the grounds that the employer rejected an applicant who lacked a state certification in teaching biology. The CO noted that the applicant had Bachelor's degree in Geoscience and a state certification in Earth Science and therefore was minimally qualified for the position. On reconsideration the employer argued that applicant lacked the required certification in Biology. While the CO refused to reconsider and transmitted to the case to the Board, the transmittal letter did not address the issues raised in this case and was clearly intended for use in other applications filed by this employer.

The Board (Geraghty, Calianos and McGrath) reversed based on due process considerations. The panel treated the CO's failure to address the issues raised in the employer's reconsideration request as a de facto denial of reconsideration. While CO's are free to refuse to reconsider, the panel noted that the reconsideration request contained new information that the CO was compelled to consider under 20 C.F.R. § 656.24(g)(2). The CO‘s failure to consider that material constituted a due process violation that mandated a reversal.


Am-Kor Fire Protection Co., Inc. , 2012-PER-01015 (Dec. 31, 2015)

Issue – Documentation of additional professional recruitment step; website posting cannot be used to document use of a local/ethnic newspaper advertisement

Decision – CO Affirmed

The Board (Bergstrom, Johnson and Markley) affirmed the CO's finding that documentation that the employer placed an advertisement in backpage.com did not meet the definition of a local or ethnic newspaper pursuant to 20 C.F.R. § 656.17(e)(1)(ii)(I). The Employer argued that backpage.com was the equivalent of a newspaper. The Board found that "[a]though the Regulations are devoid of any explanation or factors that may be used to determine whether a newspaper is local or ethnic, the evidence of record indicates that backpage.com is a website and not a newspaper."


Beau Talbot III , 2012-PER-01014 (Dec. 31, 2015)

Issue –Form 9089 was not filed and recruitment was not begun during the PWD validity period

Decision – CO Affirmed

The Board (Bergstrom, Johnson and Markley) affirmed the CO's denial of certification where the Prevailing Wage Determination (PWD) validity period reported on the Form 9089 indicated that the PERM application was not filed and recruitment was not begun during the PWD validity period in violation of § 656.40(c). The employer had argued in a motion for reconsideration that it had been given two PWDs with the same prevailing wage, but were for only four month periods. The employer that the PWDs should have been issued for a one year period, and had that happened, there would have been no issue. The Board found, however, that since each of the PWDs were valid for over 90 days, they were permissible under § 656.40(c). The employer also argued that it had submitted the Form 9089 by mail on May 15, 2010, and that DOL was responsible for the filing date of July 8, 2010. The Board, however, found no evidence in the Appeal File of the May 15, 2010 postmark alleged, and noting that the regulations provide that mailed applications must be date-stamped, found that the application had been filed after the PWD expired.