H1B Visa Lawyer Blog
The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Product Manager.”
Certification was denied by the CO who cited the applicant did not meet the position’s education requirements or the minimum experience qualifications. The Employer thereafter requested reconsideration on the grounds that the alien had attended a university for one year and had fourteen and one-half years of experience. The CO noted that with the given information and the employer’s formula, the alien’s education and experience would be equivalent to 17 years. This translates to 12 years of experience required as the equivalent for a Bachelor’s degree plus five years experience. However, according to the Field Memorandum NO. 48-94, Policy Guidance on Labor Certification Issues (FM) a Bachelors’ degree is only equivalent to two years of experience, therefore a Bachelor’s degree plus five years experience is only equivalent to seven years experience. Since the Employer’s requirement of 17 years of experience was not “substantially equivalent” to the primary requirements for the job, the CO denied certification. The case was then forwarded to BALCA and the Employer filed an appellate brief. In the appellate brief, the Employer argued that “17 years of experience” had never been listed on the application for the position of “product manager.” The CO submitted a Statement of Position stating the Employer also submitted the application too many days after the end date of the SWA job order, violating regulation.
PERM regulation 20 C.F.R. § 656.17(i)(1)-(2) controls and it provides that an Employer must represent the actual minimum requirements for the position on an application and an Employer must not hire individuals with less training or experience for a position than set by the requirements.
In the instant case, BALCA found the Employer’s formula for equivalent experience was “a gross departure” from that determined by FM. The Employer would have required 17 years while the FM formula only required 7 years as an equivalent.
Accordingly, the Board affirmed the decision of the CO in denying labor certification.