Posted On: September 30, 2008

BALCA upholds denial of LC based upon failure to comply with PERM advertising rules

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Chinese Specialty Cook.”

In the aforementioned case, the employer filed a LC on behalf of an alien worker. The significant facts of the case were: the alien signed the application on November 19, 2005; the employer’s attorney signed the application on December 13, 2005; the employer’s president signed the application on December 3, 2006; and the employer ran advertisements in a newspaper of general circulation on May 7, 2006 and May 14, 2006, and all of these facts were indicated within the application for labor certification. The CO denied certification because the advertisements used for recruitment did not occur within the requisite timeframe. The PERM regulations clearly state that advertisements for recruitment must occur at least 30 days, but no more than 180 days, prior to the date the application was filed.

The CO received request for reconsideration from the employer’s attorney. In response, the employer’s attorney submitted evidence indicating that advertisements were run in a newspaper and a journal for three consecutive days in June of 2005. Additionally, the employer’s attorney mistakenly had filed the labor application with the State Workforce Agency rather than directly with a federal Certifying Officer, and had to re-file with the latter. The employer’s attorney confessed error in the timing of the advertisements, but urged that they did in fact advertise, and did not receive any responses. The employer’s attorney alleged that the error was procedural. After reviewing the request, the CO denied reconsideration. The employer requested BALCA review.

Upon BALCA review, it was determined that the new rules of PERM were applicable to the present case. The PERM regulations require that ETA form 9089 be utilized rather than ETA form 750, and that applications be filed directly with a federal Certifying Officer rather than a State Workforce Agency. The employer had applied for certification for a non-professional position. Under the regulations, for a non-professional position, the employer must, at a minimum, place a job order and two newspaper advertisements within 6 months of filing the application. Unfortunately, the employer’s motion for reconsideration did not remedy the timing problem with the advertisements. Moreover, regardless of whether the employer’s advertisements were run in May 2005, June 2005 or would be run in May 2006, none of those dates fit within the requisite timeframe in support of a labor certification application filed under PERM. Additionally, the employer’s attorney requested equitable relief for its error in filing the pre-PERM application rather than the PERM application. BALCA denied equitable relief as the facts surrounding the case did not present a compelling case for the application of equitable relief. Accordingly, BALCA affirmed the final determination of the CO in denying certification for not complying with the new advertising rules for PERM.

Posted On: September 29, 2008

BALCA affirms PERM filing date and vacates CO's denial of the application

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the PERM filing date and vacated the Certifying Officer's (CO) denial of the application.

The employer, an independent school district filed a pre-PERM ETA form 750A application for permanent alien labor certification on October 24, 2004 for the position of Middle School Teacher. The work location was East Houston Intermediate School and the job description involved the language “teach middle school students…” Subsequently, on January 11, 2006, the employer filed a ETA form 9089 under PERM for the same Alien for the position of Elementary School Teacher. The work location for this application was Hilliard Elementary School, and the job description involved the language “teach elementary school students…” On the ETA form 9089, the employer indicated that it was seeking to utilize the filing date from the pre-PERM application, the date of October 24, 2004. Thereafter, the employer received a letter from the Dallas Backlog Elimination Center (BEC) in reference to the pre-PERM application. The BEC gave the employer several options to pursue. The employer responded by withdrawing 20 pre-PERM application, one of which was the present application, because applications had also been filed under PERM and were pending. In January, the following year, the employer received a letter granting certification on the PERM application. The date of acceptance was that of the newly filed PERM application, January 11, 2006. The employer requested that the CO reconsider the earlier pre-PERM application filing date. A request for additional information was issued to the employer, and the employer promptly replied. The CO subsequently denied the motion because the job descriptions, job titles, and job locations in the ETA form 750A and form 9089 were not identical. Regulations require that job descriptions be identical in order for the employer to retain the filing date from an earlier pending pre-PERM application. The CO forwarded the matter to BALCA for review.

Upon BALCA review, it was determined that the CO’s letter denying reconsideration stating that the application had been denied was clearly in error, and that there had been no intent to de-certify the application, leaving the remaining issue of whether the CO correctly determined the filing date for the PERM application.

The regulation at 20 C.F.R. § 656.17(d) clearly supports the CO’s decision not to retain the pre-PERM filing date. The regulation provides that employers who have filed applications prior to March 28, 2005, may…re-file such applications…without loss of the original filing date by: (i) submitting an application for an identical job opportunity…, (ii) withdrawing the original application…, and (iii) re-filing within 210 days of withdrawal of original application. To be clear, the regulations state that a job opportunity shall be considered identical if the employer, alien, job title, job location, job requirements and job description are the same as those stated in the original application. In this case, the employer had a different job title, job location and job description for each application that was submitted on behalf of the alien worker. Since the employer did not address the fact that the job location had changed in the motion for reconsideration, BALCA determined that for that reason alone, the CO was correct in finding that the applications were not identical. Although the job titles and descriptions may have been similar, they were not identical; the regulations require them to be identical in order to grant the request of the employer.

Accordingly, BALCA affirmed the determination of the CO that the filing date shall be the date that the PERM application was accepted for processing, January 11, 2006.

Posted On: September 26, 2008

BALCA upholds denial of LC based on submission of Incomplete Application

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination
of a Certifying Office (CO) denying labor certification (LC) for an alien worker for the position of “Home Health Aide.”

In the aforementioned case, the employer, a private household filed a LC on behalf of an alien worker. The CO denied certification of the application on four grounds. The PERM regulations require that employers file completed applications for Permanent Employment Certification. The employer failed to make selections for the following questions on the ETA Form 9089: Section C-6 (Year commenced business); C-7 (Employer FEIN); F-3 (Skill level); and K-5 (Job 3 title). Subsequently, the Employer filed a request for reconsideration. In requesting reconsideration, the Employer asserted that she completed Sections C-6 and C-7 and no further information or explanation was given. After reviewing the request, the CO denied reconsideration. The CO stated that the employer’s request for reconsideration did not overcome all deficiencies noted in the determination letter. The employer requested BALCA review.

Upon BALCA review, it was determined that the employer offered an incomplete ETA Form 9089. The PERM regulations at 20 C.F.R. § 656.17(a) require that an “employer who desires to apply for a labor certification on behalf of an alien must file a complete Department of Labor Application for Permanent Employment Certification form (ETA Form 9089). Further, the regulations state that “incomplete applications will be denied.” In this case, the omissions on ETA Form 9089 were material and the employer failed to correct them by offering documentation in her request for reconsideration to establish compliance with the regulations. The Employer clearly failed to obtain a Federal Employer Identification Number (FEIN) and to complete Sections F-4 and K-5 of the application. Accordingly, BALCA affirmed the final determination of the CO in denying certification for not submitting a completed application for labor certification.

Posted On: September 25, 2008

The Role of Attorneys/Agents in the PERM Recruitment process

In light of the Fragomen audit, the Department of Labor (DOL) has recently issued many documents on the topic of attorney/agent consideration of U.S. workers under the permanent labor certification program . Attorneys/agents and foreign workers do not have a designated role in the PERM recruitment process. It is the responsibility of the DOL to ensure that no foreign worker obtains a certified labor application based on an employment offer if there are U.S. workers that are able, willing, qualified and available to fill the proffered position. Additionally, an employer must make an attestation that if admitted; the foreign workers will not adversely affect the working conditions of similarly situated U.S. workers.

The purposes of the documents issued by the DOL are to clearly define and regulate the role of an attorney/agent in the consideration of U.S. workers under the PERM program. The DOL has long held the view that good faith recruitment requires that an employer’s process for considering U.S. workers who respond to certification-related recruitment closely resemble the employer’s normal consideration process. In most situations, the normal hiring process does not involve a role for an attorney/agent in assessing the qualifications of the applicants. The DOL has clearly specified the types of actions prohibited by attorneys/agents under the regulations, which include: (1) receiving resumes and applications of U.S. workers who respond to the employer’s recruitment efforts; and (2) participation in the interviewing of U.S. worker applicants. However, if the attorney/agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed, then the attorney/agent may act accordingly. In addition, the attorney/agent may provide advice throughout the consideration process on any and all legal questions concerning compliance with governing statutes, regulations and policies. It is the sole responsibility of the employer to conduct recruitment in good faith.

If the DOL finds evidence of improper attorney, agent or foreign worker involvement in the recruitment/consideration process, the DOL will audit and may subsequently require supervised recruitment to further investigate the employer’s recruitment efforts or potential debarment from immigration related programs.

Posted On: September 24, 2008

Unlawful employment practices result in potential debarment

Immigration Customs Enforcement (ICE) officers have increasingly been conducting workplace raids that can have a significant impact on an employer and its workers. In a news release issued by ICE, seven companies have been notified that they will be considered for debarment from federal contracting because each of the companies has been found to be unlawfully employing persons without employment authorization.

Julie Myers, Homeland Security Assistant Security for ICE, indicated that by using debarment in appropriate circumstances, the federal government can avoid working with businesses that employ an illegal workforce. She commented in the news release that “debarment” is yet another tool that they believe will further ensure compliance with U.S. immigration employment laws.

The Federal Acquisition Regulations (FAR) provide that contractors may be considered for debarment if they have been found to have either knowingly hired an unauthorized worker or continue to employ an alien who is or becomes unauthorized.

The effect of debarment on a company is paralyzing. First, each company’s name is entered into the Excluded Parties List System (EPLS), which identifies parties that have been suspended, debarred, proposed for debarment or otherwise excluded from receiving federal contracts, certain subcontracts and certain types of federal financial and non-financial assistance and benefits. Subsequently, the companies on the list are prohibited from competing for new government contracts. Additionally, the proposed debarment and immediate suspension apply government-wide, meaning no federal agency may award a new contract while these companies are on the list. However, the companies have a 30-day period to respond and challenge the decision made by ICE officers.

The MVP Law Group, P.A. strongly recommends that companies maintain accurate and complete I-9 forms for each employee, as maintaining these records is a good faith defense to a charge of hiring unauthorized workers. Employers should also perform I-9 audits annually, if not every six months, to ensure I-9 compliance.

Posted On: September 24, 2008

Audit - The Assignment of Social Security Numbers to K-1 visa applicants

Every year, thousands of U.S. citizens petition the U.S. Citizenship and Immigration Services (USCIS) to allow their foreign fiancé to come to the United States under a K-1 visa . Under a K-1 visa, the foreign national must marry the petitioner within 90 days of arriving in the United States, or they must leave. After marriage, the foreign national utilizing the K-1 visa may adjust their temporary immigration statute to that of permanent residence in order to obtain the immigration benefits associated with the permanent resident status.

Once a foreign national arrives in the U.S., the Social Security Administration (SSA), under the Social Security Act, is required to assign Social Security Numbers (SSN) to “aliens at the time of their lawful admission to the United States either for permanent residence or under other authority of law permitting them to engage in employment in the United States…” Federal law authorizes K-1 visa holders to work incident to their visa status, enabling K-1 visa holders to have SSNs. Additionally, the Code of Federal Regulations requires that K-1 visa holders who seek employment must also apply for an Employment Authorization Document (EAD) with the USCIS. However, the requirement of obtaining an EAD before marriage has been relaxed due to time processing delays. Once the foreign national arrives in the U.S., they only have 90 days to marry or return to their foreign country. The normal processing time for the issuance of an EAD card can range anywhere from 2-5 months depending on the service center, therefore, the USCIS began issuing K-1 visas without the requirement of first obtaining an EAD card. The non-issuance of EADs is ultimately were the problem lies, where the fraud is consummated.

The Social Security Administration’s policy of issuing SSNs to K-1 visa holders without requiring that they present an EAD, creates opportunities for misuse. There is concern that having an SSN makes it easier for K-1 visa holders who do not marry to remain in the country after their immigration status expires. Based on the sample analysis conducted by the Office of the Inspector General (OIG), an estimated 371 SSNs were assigned during the audit period to K-1 visa holders who did not marry their American petitioner and remained in the U.S. beyond the date USCIS authorized.

The OIG recommended that the Social Security Administration not assign SSNs to K-1 visa holders until they marry and adjust their immigration status with the USCIS, in order to prevent misuse. Additionally, the OIG believes that the SSA has a stewardship responsibility to ensure compliance with all policies and procedures and improve the integrity of the enumeration process.

In summary, the vision is that the non-assignment of SSNs to K-1 visa holders and the consistent and improved compliance by the SSA with policies and procedures will reduce the amount of misuse by K-1 visa holders.

Posted On: September 23, 2008

Redesigned (NEW) Naturalization Test

The United States Citizenship and Immigration Services (USCIS) recently completed a multi-year redesign of the naturalization test. The major goal of the redesign process is to ensure that naturalization applicants have uniform, consistent testing experiences nationwide, and to provide a fair and meaningful naturalization process. The USCIS believes that the newly designed test will help encourage citizenship applicants to learn and identify with the basic values we all share as Americans.

To accomplish their goals, USCIS piloted a new test with an overhauled English reading and writing section, as well as new history and government questions in several sites across the country. The feedback from the pilot program was used to finalize testing procedures, reading and writing prompts and new history and government questions.

Naturalization applicants will begin taking the redesigned test on October 1, 2008. To determine whether you will take the current or redesigned test, please refer to the chart provided by the USCIS.

Posted On: September 23, 2008

H2B Proposed Rule Changes

In a Leadership Journal entry issued by the Acting Director of the U.S. Citizenship and Immigration Services (USCIS), several rule changes to the H-2B program were proposed. Little about the program has changed to accommodate employers’ needs or improvement in worker protections. The Department of Homeland Security (DHS) is proposing to amend its regulations affecting temporary non-agricultural workers within the H-2B nonimmigrant classification and their U.S. employers. In order to better serve those participating in the program, they propose measures to remove unnecessary limitations, prevent fraud and abuse, and ultimately protect foreign workers.

The entry indicated that the proposed modifications would:
 Relax the current limitations on the ability of U.S. employers to petition for unnamed workers;
 Reduce from six months to three months the amount of time an H-2B worker whose status has expired must wait outside the U.S. before he/she is eligible to obtain status under the H or L classifications;
 Require employer attestations on the scope of the H-2B employment, and on the use of recruiters to locate beneficiaries, and provide for denial or revocation of an H-2B petition if an H-2B worker was charged a fee in connection with the employment either (a) by the petitioner, or (b) by a recruiter where the petitioner knew or reasonably should have known that the recruiter was charging such fees;
 Eliminate the ability of employers to file an H-2B petition without an approved temporary labor certification;
 Preclude changing the employment start date after the temporary labor certification is certified by the Department of Labor;
 Require employer notifications to the Department of Homeland Security when H-2B workers fail to show up for work, are terminated, or abscond from the worksite;
 Change the definition of "temporary employment" to clearly define that employment is of a temporary nature when the need for the employee will end in the near, definable future and to eliminate the requirement that employers show "extraordinary circumstances" to be eligible to hire H-2B workers where a one-time need for the workers is longer than one year but shorter than three years;
 Prohibit the approval of H-2B petitions for nationals of countries determined to be consistently refusing or unreasonably delaying repatriation of their nationals; and
 Establish a land-border exit system pilot program under which H-2B workers admitted through a port of entry participating in the program must also depart through a port of entry participating in the program. Upon departure, they must present designated biographical information, possibly including biometric identifiers.

Joanthan Scharfen, Acting Director of USCIS, accepted comments and feedback from the general public regarding the proposed H-2B rule changes. Once they have had time to review the comments, the rule will be finalized and published with an effective date.

Federal Register - Proposed H2B Rule Changes

Posted On: September 5, 2008

BALCA remands case – Pro se employer not given adequate rebuttal notice

The Board of Alien Labor Certification Appeals (BALCA) recently vacated the final determination of a Certifying Office (CO) denying labor certification for an alien worker for the position of “Reverend,” and remanded the case for further proceedings.

In the aforementioned case, the employer filed an application for labor certification on behalf of a foreign alien to fill the position of Reverend. The CO notified the employer that it needed to provide the prevailing wage for the position or its equivalent. In response to the notification, the employer stated a rate of pay of $8.00 per hour. Thereafter, the CO sent the Employer a document entitled “Recruitment Instructions.” The instructions informed the employer that the prevailing wage was $11.79 for the job and that the employer should advertise the job at that particular rate of pay to obey regulations. Subsequently, the employer placed newspaper advertisements illustrating that the rate of pay was $8.00 per hour. When the recruitment report was submitted to the CO, there was no explanation to indicate why the employer had used the $8.00 rate of pay. The CO issued a Notice of Findings (NOF) proposing to deny certification because the $11.79 prevailing wage had not been used in the Employer’s advertisement. The CO further explained to the employer that to rebut the NOF, it must provide a copy of an advertisement and an internal posting placed during the recruitment period, and the advertisement must reflect the prevailing wage provided in the Recruitment Instructions letter. In response, the employer re-submitted its earlier advertisement and did not further discuss the reason for using the $8.00 rate of pay. The CO issued a final determination denying certification because the advertisement had stated a wage of $8.00 per hour. The employer requested BALCA review arguing that it complied with the CO’s instructions for advertising; however, it never mentioned nor explained the reason for running advertisements with the $8.00 wage rate rather than the $11.79 prevailing wage.

Upon BALCA review, the regulation at 20 C.F.R. § 656.20 (c)(2) provides guidance and requires that an employer offer a wage that equals or exceeds the prevailing wage. According to case law, where an employer is notified that its wage offer is below the prevailing wage, but fails to either raise the wage to the prevailing wage or justify the lower wage it is offering, certification is properly denied. An employer seeking to challenge the prevailing wage bears the burden of establishing both that the CO’s determination is in error and that the employer’s wage offer is at or above the correct prevailing wage. It is the responsibility of the CO to provide the employer with adequate notice of its burden on rebuttal. Upon further review, BALCA determined that the employer, who was pro se – was not given adequate notice of its burden. Specifically, the CO had informed the employer of the option to use a lower wage if it could document that the lower wage was appropriate; however, the NOF only gave the employer the option to produce an advertisement establishing that the $11.79 rate was issued. It did not give the employer the option of rebutting by documenting that a lower wage was appropriate. This failure to correctly state the Employer’s burden of proof necessitates a remand for issuance of a new NOF. The new NOF will provide the employer with an option to establish through documentation that its wage offer was appropriate for the proffered position. Accordingly, BALCA vacated the final determination of the CO in denying certification and remanded the case for further proceedings.

Posted On: September 3, 2008

Unlawful Rejection of U.S. Workers: BALCA affirms Certifying Officer's denial of labor certification

The Board of Alien Labor Certification Appeals (BALCA) affirmed the final determination of the Certifying Officer (CO) denying a labor certification application because the employer’s rebuttal was insufficient to establish a lawful related reason for rejecting U.S. workers.

In the aforementioned case, the employer, a telecommunications company, filed an application for labor certification on behalf of an alien worker for the position of Information Technology Director. The only job requirement listed on Form ETA 750A was a Bachelor’s degree in Electrical Engineering, no additional training or experience were listed. Additionally, the job was advertised as only requiring a Bachelor’s degree in Electrical Engineering. Subsequently, the Certifying Officer (CO) issued a Notice of Findings (NOF) to the employer proposing to deny certification. The employer rejected three U.S. applicants for grounds not stated in ETA 750A. The reason for rejection was insufficient knowledge of Telecommunications, Prepaid Phone Card Systems and the technology involved including TDM and Voip Protocols, Dialogic boards, Parity Software Vos and Visual FoxPro programming; however, the only job requirement listed on ETA 750A was a Bachelor’s degree in Electrical Engineering. The second ground for certification denial was that it appeared that the Alien was hired without possessing these specialized requirements. In response to the NOF, the employer filed a rebuttal letter providing information as to the alien’s qualifications for the proffered position but failed to address the rejection of the three U.S. workers. Thereafter the CO issued a final determination denying certification because the employer failed to provide reason for its unlawful rejection of U.S. workers. The employer then filed a request for BALCA review.

Upon review, BALCA relied upon the regulations set forth in Section 656.25(e) which provide that the employer’s rebuttal evidence must rebut all of the findings in the NOF and that all findings not rebutted shall be deemed admitted. Accordingly, the CO’s finding which is not addressed in the rebuttal is deemed admitted. The regulations also provide that if U.S. workers have applied for the position, the employer must document that they were rejected solely for lawful job-related reasons. BALCA relied upon case law and stated that a labor certification is properly denied where an employer unlawfully rejects workers who meet stated minimum education and experience requirements, and if the employer has specific requirements, they should be specified in the application. In the instant case, the employer contended that the knowledge it was requiring was implicit in the nature of the job offered. BALCA responded to the employer’s argument by stating that lack of knowledge of telecommunications is too vague and generic to provide a meaningful objective basis for rejection of applications. Further, the lack of knowledge of prepaid phone card systems, in contrast, is a very specific requirement; however, the employer omitted any argument about this particular requirement. The burden of proof lies with the employer, and it was the employer’s responsibility to document why its knowledge requirements were so fundamental to the position that they did not need to be listed as requirements on the ETA 750A. Therefore, BALCA conceded the final determination of the CO and affirmed the denial of the labor certification.

Posted On: September 2, 2008

Recruitment Efforts: Employer cannot reject otherwise qualified candidates based on resume alone

The Board of Alien Labor Certification Applications (BALCA) recently affirmed the final determination of the Certifying Officer (CO) denying labor certification.

In the present case, the petitioner (employer), a plumbing and compacting installation service filed an application for labor certification for the position of Plumber on behalf of a foreign alien beneficiary. Following recruitment, the employer filed a recruitment report in which it rejected five U.S. applicants. Only two of the applicants’ qualifications are questioned on appeal. According to the recruitment report, Applicant 1 was rejected because his resume indicated that he did not possess any U.S. experience as a plumber, and the employer thereafter assumed that he/she obviously had no knowledge of state and city plumbing codes, a job requirement for the proffered position. Applicant 2 was rejected because the applicant’s experience as a Plumber dated from the period of 1978 to 1984, after which he/she only worked as a Supervisor to several plumbers and helpers. The Employer stated that they desired the services of a raw plumber not a supervisor.

After thorough review of the documentation presented with the application for labor certification, the CO issued a Notice of Findings (NOF) proposing to deny certification. The CO noted that the employer unlawfully rejected applicants 1 and 2 based on resumes alone. With Applicant 1, it was not altogether established that he/she was not familiar with applicable New York (NY) plumbing codes and specifications and an interview would have clearly established the Applicant’s qualifications for the proffered position. The 2nd Applicant was rejected solely because he was overqualified according to his resume. In response to the NOF, the employer filed a rebuttal letter indicating why Applicants 1 and 2 were not further interviewed. The employer argued that the first applicants resume did not indicate any plumbing experience in NY, and there was no reason to assume that his home improvement experience in NY involved any plumbing. Accordingly, under those circumstances, the employer felt that he was not obliged to interview the applicant. In regards to Applicant 2, the Employer relied upon the applicant’s present occupation and stated that no one willing regresses in their career; therefore the applicant cannot be considered to be willing to be available and willing for the job of raw plumber. Thereafter, the CO issued a final determination denying certification. The CO indicated that the relevant standard in determining whether a resume merits further investigation is whether or not there is a reasonable possibility that an applicant may meet the employer’s minimum requirements despite an apparent shortcoming on the applicant’s resume.

Upon BALCA review of the record, it was determined that the resumes of Applicants 1 and 2 raised the reasonable prospect that they were capable of performing the job offered. Accordingly, the employer had the duty to interview the applicants or verify their qualifications in some other manner other than just making assumptions based on their resumes. Since the employer rejected the applicants without interviewing them or otherwise verifying their qualifications or lack thereof, the CO properly denied certification. The burden of proof was with the employer, although the employer attempted to shift the burden to the CO, the employer was unable to satisfy the burden and accordingly the certification was denied.