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

Encore NG Services, Inc. , 2015-PER-00252 (Dec. 7, 2016)

Issue - Rejection of domestic applicant; length of commute

Decision - CO affirmed

The Board (Johnson, Markley and Rosen) affirmed a denial where the employer rejected a domestic applicant because the employer concluded that the applicant’s lengthy commute would make him unreliable for a job requiring punctuality. The decision noted that the Form 9089 did not indicate any special concern about punctuality or about lengthy commutes and that the employer’s concerns were unfounded.

Novartis Pharmaceuticals Corp. , 2015-PER-00225 (Dec. 7, 2016)

Issue - Denial based on original recruitment after supervised recruitment instituted

Decision - CO affirmed

The Board (Bergstrom, Johnson and Markley) affirmed a denial where the CO, after placing the application into supervised recruitment (SR), denied based on the employer’s rejection of US workers identified in the original recruitment report. The decision concluded that the regulations gave the CO largely unrestricted discretion regarding placing applications into SR and this discretion encompassed the CO’s ability to withdraw the case from SR and simply adjudicate the application as initially filed.

Zylog Systems Ltd. , 2012-PER-03626 (Dec. 6, 2016)

Issue - Proof of NOF posting; information about dates of posting in recruitment report found to be sufficient documentation

Decision - CO reversed

The Board (Henley, Almanza and Merck) reversed a denial based on the CO’s determination that the employer had failed to establish that the NOF had been posted for 10 days since the document was dated “July 18, 2011.” The panel noted that the recruitment report provided that the NOF had been posted from August 1 - August 18, and found this statement sufficient since the employer explained why a different date appeared on the NOF and since the printed date on the NOF was not inherently contradictory to the assertion in the recruitment report.

Synergy Global Technologies Inc. , 2016-PER-00817 (Dec. 6, 2016)

Issue - Travel possibility not identified in web posting; Section 656.24(b)(2) is not a catch-all denial ground

Decision - CO reversed

The CO denied the application because the possibility of travel and relocation that were listed on the Form 9089 were not reflected in the web notice. The CO found a violation of 20 C.F.R. §§ 656.17(e)(1)(ii)(B) and 656.24(b)(2) because the web notice was “not specific enough to apprise the U.S. worker of the job-” The employer argued on reconsideration that the Board’s decision in Symantec Corp. , 2011-PER-01856 (July 30, 2014) ( en banc ), negated such a determination. The CO reaffirmed the denial noting that “However, BALCA decisions are rendered on an independent case basis and according to the specific circumstances of the individual case.” The post-reconsideration decision appeared to rely only on 20 C.F.R. § 656.24(b). The Board (Henley, Almanza and Barto) reversed noting that there was no requirement that non-print advertising do anything more than generally describe the occupation rather than the particular job opportunity. The decision also noted that § 656.24(b)(2) did not provide any additional rationale supporting the denial. The panel stated: “Previous panels of the Board have held that [§ 656.24(b)(2)] is not a ‘catch-all denial ground encompassing any employer action that the CO deems problematic.’ Tek Services LLC , 2016-PER-00207 (Nov. 16, 2016) (“ Tek 1 ”); see also Tek Services LLC , 2016-PER-00332 (Nov. 17, 2016). Rather, it is the regulatory provision that empowers the CO to deny certification when an employer ‘fail[s] to comply with some specific regulatory obligation.’ Tek 1 . The CO in this case has not identified a specific regulatory obligation that the Employer failed to meet. Accordingly, we cannot affirm the CO’s denial on the basis of § 656.24(b)(2).” Slip op. at 4.

Webilent Technology Inc. , 2012-PER-03409 (Dec. 7, 2016)

Issue - Failure to disclose alternate experience in job order

Decision - CO affirmed

The Board (Bergstrom, Johnson and Markley) affirmed a denial where the employer included its principal but not its alternative experience requirements in its job order. The decision is somewhat unclear about the precise regulatory basis for the denial, but CO’s denial of reconsideration references 20 C.F.R. § 656.10(c)(8), and the panel found that “By listing its ‘minimum education requirement’ as a Master’s Degree, the Employer artificially excluded potentially qualified U.S. workers from applying for the job opportunity who had a Bachelor’s Degree and five years of work experience required for the position.” Slip op. at 3.

Express Systems and Parts Network , 2012-PER-03052 (Dec. 7, 2016)

Issue - Bona fide job opportunity; alien control; failure to supply list of persons with payroll signoff responsibility as requested by the CO

Decision - CO affirmed

The Board (Geraghty, Calianos and Sutton) affirmed a denial where the employer failed to the supply a list of persons with payroll signoff responsibility which had been requested by the CO to determine if a bona fide job opportunity existed. The panel found that payroll sign-off authority is material to the question of whether the sponsored alien exercised an impermissible degree of influence and control over the job opportunity.

Techorbits Inc. , 2015-PER-00214 (Dec. 9, 2016)

Issue - Rejection of domestic applicants; email to applicant noting that his salary requirement exceeded offered salary insufficient as proof that salary was rejected; onus is on employer to establish whether a U.S. worker will accept the job opportunity at the offered wage

Decision - CO affirmed

The Board (Johnson, Markley and Rosen) affirmed a denial based on the CO’s determination that the employer had improperly rejected an applicant who the employer claimed was not willing to accept a position at the offered wage. While the employer interviewed the applicant and reported that that he had refused to work at the offered wage, the decision found this assertion to be inconsistent with the record when viewed as a whole. In regard to the employer’s contention that the applicant’s failure to respond to an email indicating that he was rejected because his minimum salary requirement exceeded the offered salary, the panel wrote: “The onus is on the Employer to definitively establish whether a U.S. worker will accept the job opportunity at the offered wage, not on the applicant to correct the Employer’s erroneous assumption. By not offering the applicant the position and giving him the opportunity to accept or reject the offered salary, the Employer cannot prove there was no able, willing, and qualified U.S. worker available for the position. See 20 C.F.R. § 656.24(b)(2).” Slip op. at 4.

Brighterion, Inc. , 2015-PER-00503 (Dec. 14, 2016)

Issue - Business necessity for experience with specialized software

Decision - CO affirmed

The Board (Geraghty, McGrath and Sutton) affirmed a denial based on the employer’s failure to establish business necessity for its requirement that applicants have experience developing software with “MINDSUITE technologies.” The Board agreed with the CO that a business necessity showing was required because MINDSUITE was not listed in O*Net as a technology required for the occupation. The panel noted that the Board has long held that an employer’s “bare assertion of business necessity without either supporting reasoning or evidence is generally insufficient to carry an employer’s burden of proof.” Although the employer had submitted a letter from its CEO accompanied by some supporting documentation, the panel found that it did not establish “that the software is so unique and difficult to master that an otherwise qualified Software Engineer (i.e., someone with a Bachelor’s degree in Computer Engineering or Computer Science as required by the Employer) could not, as the CO suggested, gain sufficient experience with MINDSUITE through on-the-job-training, course instruction, or self-learning that that would enable the worker to perform the duties of the job in a reasonable manner within a practical timeframe.” Slip op. at 7.

Greater Falls Church Chiropractic Center , 2012-PER-01937 (Dec. 16, 2016)

Issue - Proof of mailing by employer; date on cover letter to application is insufficient to raise presumption of mailing on that date

Decision - CO affirmed

The CO denied certification because the SWA job order was stale by the time of the filing of the application. The employer requested reconsideration contending that it had filed the application in a timely manner based on documentation in the form of the date on the cover letter submitted with the application. The CO affirmed the denial on reconsideration. The Board (Henley, Davis and Merck) affirmed the denial, finding that an employer “is not entitled to a presumption that its application was mailed on the same date as shown on the face of its application cover letter, absent some proof of mailing.” Slip op. at 3. The panel noted that “[i]n this case, the Employer sent its application and cover letter by regular mail and has not presented any evidence to support its contention that it was actually mailed on June 29, 2010, the date on its cover letter. The CO argues, based on its date stamp, that the application was received for processing on January 7, 2011. Neither party has presented direct evidence of delivery, such as delivery receipts or postmarked envelopes.” Id . The panel also noted that the employer’s attorney had signed and dated the application on December 31, 2010, making it a reasonable conclusion that it had not been mailed earlier on June 29, 2010, and that the CO did not received the application until January 7, 2011.

Cognizant Technology Solutions US Corp. , 2012-PER-03285 (Dec. 16, 2016)

Issue - Job involving unanticipated work locations in the U.S. found not to be a telework arrangement

Decision - CO reversed

The Board (Henley, Barto and Merck) reversed a denial where the CO concluded that the job opportunity entailed a “telecommuting benefit” that was not reflected in the application form. The Board rejected the conclusion that the employer’s description of the job opportunity as encompassing Teaneck N.J. and unanticipated work locations in the U.S. constituted a telework arrangement, finding that “[t]he CO’s denial letter arbitrarily asserted that the Employer was offering a telecommuting benefit with little explanation.” The panel found no significance in the fact that the foreign worker was living in Chicago at the time the application was filed.

Techwave Consulting, Inc. , 2016-PER-00014 (Dec. 16, 2016)

Issue - Ambiguous recruitment report

Decision - CO affirmed

The CO denied the application because the employer submitted a recruitment report that indicated that no “qualified” workers had applied but attached no resumes. The report also contained a sentence indicating that “We do not have the luxury of training consultants on the job to bring them up to speed.” The CO denied based on the employer’s failure to disclose the names of any “unqualified” applicants. On reconsideration the employer submitted a revised recruitment report that explicitly stated that no workers had applied. The CO refused to consider the new report based on § 656.24(g)(2). The Board (Henley, Almanza and Barto) affirmed the denial. The panel agreed with the CO that the revised recruitment report was not part of the record and further concluded: “While we cannot make a determination that the Employer clearly violated § 656.17(g)(1), we find based on a preponderance of the evidence that the Employer did not establish that it complied. The burden of proof was on the Employer to establish that it complied with the requirements at § 656.17(g)(1), and it failed to do so. Therefore, we affirm the CO’s denial of certification.” Slip op. at 5.

Bank of America , 2012-PER-03518 (Dec. 21, 2016) (erratum issued Dec. 22, 2016)

Issue - Due process considerations where new ground for denial introduced in decision on reconsideration; NOF posting location

Decision - CO reversed

The CO initially denied the application on the grounds that the NOF was posted in New Jersey whereas the actual job opportunity was in New York. In response the request for reconsideration the CO added an additional denial ground concluding the NOF violated 20 C.F.R. § 656.17(f) because it did not indicate specifically enough the geographic area of employment since the employer has many offices in the New York area.

The Board (Merck, Almanza and Hillson) reversed. The Board agreed with the employer that its due process rights had been violated by the introduction of a new denial ground in the CO’s denial of reconsideration. The panel also determined that the employer had adequately demonstrated that the NOF was posted at the work location.

Onward Technologies, Inc. , 2015-PER-00538 (Dec. 28, 2016)

Issue - Employee referral program; fact that ERP memorandum was not dated not fatal where totality of documentation showed that ERP was in effect during the recruitment period

Decision - CO reversed

The Board (Geraghty, McGrath and Sutton) reversed the denial concluding that the employer had adequately documented the existence of an employee referral program under 20 C.F.R. § 656.17(e)(1)(ii)(G). The panel, applying the criteria outlined in Sanmina-SCI Corp. , 2010-PER-00697, slip op. at 5 (Jan. 19, 2011), wrote:

   In this case, the CO denied certification based on his finding that the Employer’s audit response did not provide documentation that the ERP listing of the job opportunity with the incentives offered was in effect during the recruitment period and that the Employer’s “mere reference to its posting of the ERP is not sufficient proof that its employees were made aware of the existence of its referral program during the recruitment period.” - We find that a fair reading of the record does not support the CO’s findings and conclusions.

   The Employer attested on its Form 9089 that the job opportunity was advertised through the ERP on January 24, 2013. -. With its audit response, it provided the following documentation: (1) an undated copy of its ERP program which describes the referral incentives and process; (2) a copy of the January 24, 2013 Inter-Office Memorandum to all employees advertising the job opportunity and instructing employees to return a completed referral form to Human Resources; and (3) the February 11, 2013 memorandum from Mr. Todkari stating that Inter-Office Memorandum was posted from January 24, 2013 to February 11, 2013. - We find that the Employer’s audit response and documentation clearly satisfied the first and third Sanmina-SCI criteria by demonstrating that the Employer’s ERP offers incentives to employees for referral of candidates and that employees were on notice of the job opportunity. Although the ERP memorandum that the Employer submitted is undated, we find, contrary to the CO, that the totality of the Employer’s documentation and, specifically the January 24, 2013 Inter-Office Memorandum which advertised the job opportunity and instructed employees to submit completed referral forms to Human Services, is adequate to show that the ERP was in effect during the recruitment period. See AQR Capital Management , 2010-PER-00323, slip op. at 4 (Jan. 26, 2011) (although ERP document submitted with audit response was undated, substantial evidence contained within the audit response materials demonstrating that the ERP was in existence at the time that the employer conducted recruitment); see also Bottomline Tech. , 2011-PER-02325, slip op. at 6 (Oct. 18, 2012) (finding that “a single page without a date and without any kind of marking to identify where it came from” was adequate when supported by other documentation that demonstrated the page came from the handbook, and employees were on notice of the handbook.) Accordingly, we conclude that the CO’s characterization of the Employer’s documentation as equivocal with respect to whether the ERP was in effect during the recruitment period is unreasonable and unsupported by the totality of evidence in the record.

Slip op. at 6-7.

Unisoft International, Inc. , 2015-PER-00045 (Dec. 29, 2016)

Issue - Obligation to interview; employer cannot shift burden of follow-up on the applicant

Decision - CO affirmed

The Board (Geraghty, McGrath and Sutton) affirmed a denial based on the employer’s failure to follow-up on applicant resumes to determine if the individuals were potentially qualified for the position. The employer had sent letters telling applicants that they appeared to be unqualified and but offered to schedule an interview if the individual felt that he was qualified. The panel wrote:

   When an employer places “the burden of follow-up” on the applicant, the Board had found that the employer engaged in “token” compliance with the regulations and failed to carry its burden of proving that there are no U.S. workers who are qualified, available, and willing to take the job. Viva of California , 1988-INA-00393, slip op. at 3 (Mar. 21, 1989) (en banc) (employer unreasonably delayed contacting qualified applicants and did not offer interviews). While the Employer did not unreasonably delay in sending letters to the applicants, it made it abundantly clear that interviews would only be provided if the applicant actually had “experience with MCP and SPO for 052200” that was not listed on a resume. We have reviewed the rejected applicants’ resumes and agree with the CO that the Employer should have inquired further into the applicants’qualifications or available training options, especially with respect to the two applicants identified by the CO with mainframe networking experience. - Since the Employer absolutely foreclosed any consideration of whether any applicant could acquire the skills necessary to perform the job during a reasonable period of on-the-job training, we find that its letter contacts with applicants were perfunctory, not in made in good faith and indicative of no more than token compliance with the recruiting requirements of the PERM regulations.

Slip op. at 8-9.