BALCA, WHAT HAVE YOU BEEN UP TO SO FAR IN 2015?

By Cora-Ann V. Pestaina

I’m sure all PERM practitioners would agree that it’s always good (in fact necessary!) to check in with the Board of Alien Labor Certification Appeals (BALCA). One never knows what issues BALCA will comment on next and as we navigate those often treacherous PERM waters, we need all the help we can get! Here are a couple of recent BALCA tidbits. 

BALCA applies Matter of Symantec

In Computer Sciences Corporation, 2012-PER-00642 (Jul 9, 2015) the Certifying Officer (CO) denied the PERM on the grounds that the Employer’s inclusion of the language, “Willingness to travel; may require work from home office” in its recruitment advertisements posted on its website and on a job search website, constituted terms and conditions of employment that exceeded those listed on the ETA Form 9089 in violation of 20 C.F.R. §656.17(f)(6). 

As background, employers recruiting under PERM for a professional position must complete the mandatory recruitment steps required by 656.17(e)(1)(i) as well as three additional recruitment steps provided in 656.17(e)(1)(ii).

The Employer’s advertisements posted on its website and on the job search website were in satisfaction of two of the three required additional recruitment steps. In reversing the CO’s decision, BALCA simply cited its en banc decision in Symantec Corp., 2011-PER-1856 (July 30, 2014) which I previously blogged about in greater detail here, and held that 656.17(f) does not apply to additional forms of recruitment. The Employer dodged a bullet here.

BALCA finds that Employer’s letter was within the record and can be considered on appeal

Once a PERM is denied, if the Employer files a motion for reconsideration, under 656.24(g)(2), this motion can only include (i) documentation that the Department actually received from the employer in response to a request from the CO to the employer; or (ii) documentation that the employer did not have an opportunity to present to the CO, but that existed at the time the PERM was filed and was maintained by the employer to support the PERM application in compliance with 656.10(f).

In New York City Department of Education, 2012-PER-02753 (June 19, 2015), the CO first denied the PERM application on the grounds that the Employer failed to provide a recruitment report that accurately accounted for the number of applicants for the job opportunity. The Employer filed a motion for reconsideration arguing that it properly accounted for all applicants. The CO, ignoring this request for reconsideration, issued a second denial letter, finding that the Employer did not provide job-related reasons for its rejection of US workers. Based on the documentation the Employer had submitted with the audit response, it appeared that US workers were rejected because they expressed disinterest in the position but the CO also reviewed the Employer’s interview notes that stated the candidates were available “immediately” or “soon.” The Employer filed a second motion for reconsideration explaining, not only that the CO cannot ignore the first motion and issue a second denial, but, moreover, that it had indeed lawfully rejected the US workers. Along with its motion the Employer provided a letter from its Executive Director explaining the company’s interview process and the fact that the Employer made the determination to reject the applicants after they expressed their disinterest at a second interview. 

Since the Employer failed to properly explain its interview process and reasons for rejection in its audit response, BALCA found that the CO was justified in his denial of the case. However, in forwarding the case to BALCA, the CO acknowledged the letter that the Employer submitted along with its second motion explaining its hiring process. The CO did not refuse to accept it on the grounds that it was barred under 20 CFR 656.24(g)(2). Under that regulation, since the Employer’s had previously had a chance to submit this letter with its audit response but did not and since this letter was not documentation that existed at the time the PERM was filed, the CO would have been justified in refusing to accept it. But since the CO did not, the letter became part of the record that BALCA had to consider upon appeal. With the letter fully explaining the Employer’s interview process, BALCA had no choice but to find that the US workers had been lawfully rejected. 

The take away from this case is how important it is to fully respond to an audit request. Had the CO rejected the Employer’s letter, the denial would have been upheld.  As BALCA pointed out, the CO’s audit letter very clearly requested a report that lists the date(s) the employer contacted the US worker; the dates the employer interviewed the US worker; the specific reasons the US worker was rejected; and information that documents the employer contacted the applicant(s). In its audit response, the Employer failed to provide this detailed information.

BALCA held that an original signature is not required on the recruitment report but the report must be signed

In another case involving New York City Department of Education, BALCA upheld the denial of three PERMs finding that the typed name of the Executive Deputy Director at the bottom of the recruitment report did not constitute a valid signature. The CO had denied the Employer’s PERM after audit for failure to submit a signed report as required under 656.17(g)(1). The Employer, in its request for reconsideration, explained that it had a physically signed recruitment report in its audit file and this report, due to administrative error, simply was not included in the audit response. The Employer alternatively argued that the regulations do not require a handwritten signature and the typed name of the Employer’s Deputy Executive Director was satisfactory.  The CO transferred the file to BALCA where each of the Employer’s arguments were shut down.

BALCA held that the fact that the Employer had a physically signed copy of the recruitment report speaks to the fact that the typed name on the bottom of the report submitted with the audit response was not intended to be a signature. The Employer argued that “original signatures” are not required. BALCA agreed that 656.17(g)(1) does not require an original signature but again stated that the typed name on the bottom of the report was not intended to be a signature – original or otherwise. The Employer argued that fundamental fairness ought to prevail as it had only failed to submit the physically signed report due to administrative error. BALCA held that the Employer had been given an opportunity to submit the signed report with the audit response and failed to do so. Finally, the Employer argued that each statement in the recruitment report was verified by other documentation submitted with the audit response and therefore the omission of the physically signed report was immaterial. BALCA, using one of its favorite quotes, held that “PERM is…an exacting process.” Essentially, because a signature is a regulatory requirement under 656.17(g)(1), then there must be a signature, no matter how unfair it may seem in light of all the facts of the case.

It’s really a shame whenever something so simple and unintended leads to a PERM denial or in this case, three PERM denials. But it highlights the importance of checking and rechecking an audit response before it is submitted and the importance of having, if possible, more than one pair of eyes review the response prior to submitting it. PERM can be a very unforgiving process.

BALCA says US workers can be lawfully rejected for “lack of experience”

In Presto Absorbent Products, Inc., 2012-PER-00775 (May 26, 2015), the CO denied the PERM finding that the Employer failed to provide lawful reasons for rejection. The Employer’s recruitment report stated that the Employer received eight resumes and that the applicants lacked experience. The Employer also stated that “All applicants were reviewed to determine if they would be able and qualified to perform the duties of the position within a reasonable amount of on-the-job training. All applicants were determined not to have been able and qualified for the position even with a reasonable amount of on-the-job training.” BALCA held that the regulation does not indicate a level of specificity beyond what the Employer provided and that “lack of experience” is a lawful reason for rejecting applicants.

While it is indeed heartening anytime BALCA errs on the side of reason, I don’t think PERM practitioners ought to rely too heavily on this decision and it’s always best to be as specific as possible in providing the reasons for rejection of US workers. For instance, instead of “lacks the technological experience” it would be clearer to state, “lacks experience in the required technologies such as C++, Java & PL/SQL” and instead of “lacks experience” it might be better to say “applicant possesses only 2 years of experience but the position requires 5 years of experience.” Even if it may appear silly to have to spell out the obvious, it might be valuable time and money saved by preventing an erroneous denial.

BALCA comments on newspaper circulation and distance to the area of intended employment

In Pentair Technical Products, 2011-PER-01754 (Aug. 5, 2015), the Employer used the San Antonio Express newspaper (the “Express-News”) for its first Sunday newspaper advertisement to recruit for a professional position in Pharr, Texas. The CO denied the PERM on the grounds that the Express-News is circulated in San Antonio, Texas and not in the area of intended employment – Pharr, Texas. 

Under 20 CFR § 656.17(e)(1)(i)(B)(1), one option for an employer’s mandatory print advertisements for a professional position is “[p]lacing an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available US workers.”

In a motion for reconsideration, the Employer argued that the Express-News is circulated in Pharr, Texas. The Employer argued that it chose the Express-News as it is the largest newspaper with general circulation in Pharr in order to reach the largest number of US workers. The Employer’s attorney also argued that he had personally contacted the Express-News and a representative at the newspaper had verified that the paper is circulated in Pharr, Texas. The CO nevertheless found that his denial was valid because San Antonio is four hours away from Pharr, well outside commuting distance and so the Employer had failed to advertise in the area of intended employment.

BALCA found that the issue of whether or not San Antonio is outside normal commuting distance from Pharr is relevant only if the Express-News were only available in San Antonio and not in Pharr. However, the record established that the Express-News is a newspaper of general circulation in Pharr. Accordingly, the fact that it is published in San Antonio is of no legal consequence. 

BALCA pointed out that when a single area of intended employment is served by multiple newspapers, the CO ought not to be concerned with which paper reaches the most people but rather with whether the newspaper reached the intended audience and is a “newspaper of general circulation in the area of intended employment.” As an example, BALCA stated that if Trenton, NJ is the area of intended employment, whether The New York Post is more “appropriate” than The Trenton Times because it has more readers is irrelevant and there is nothing in the regulations that requires an employer to utilize the newspaper with the highest circulation in the area of intended employment or the newspaper published closest to the area of intended employment.

At first look, the case appears to be very encouraging. As long as the newspaper reaches its intended audience, all is well. Not so fast. This is another one of those cases where BALCA’s decision is expressly limited to the precise facts of the case. BALCA takes time to point out that in this case the CO did not deny the PERM based on a finding that the Employer had failed to utilize the “most appropriate” newspaper. The only issue raised in the denial was whether the Employer placed a newspaper advertisement in the area of intended employment so that is the only issue that BALCA has addressed. As to whether Express-News was the newspaper “most appropriate” to the occupation for which the Employer was recruiting, we will never know.

It can be very difficult for employers to decide where to advertise. This case answers the question of whether it is permissible to advertise in The New York Times for a position in New Jersey. Yes, it is permissible because The New York Times is a newspaper of general circulation in New Jersey. But this case does not provide any guidelines for an employer struggling to determine which newspaper is “most appropriate.” For instance, in recruiting for a professional position in New York City, how does an employer decide between The New York Post vs. The New York Times? It is significantly more expensive to advertise in The New York Times and so an employer may not want to do that unless that newspaper is the only newspaper that would be permissible under the regulations. What statistics would that employer need to examine? Should that employer just assume that The New York Times is the newspaper most read by professionals and therefore The New York Times will always be “most appropriate” in recruiting for any professional position? In a footnote, BALCA mentioned that the Employer utilized The Monitor as the newspaper for the second Sunday advertisement and that this was not challenged by the CO. BALCA pointed out that the regulations refer to “newspaper” in the singular in requiring advertisements to be placed “in the newspaper of general circulation in the area of intended employment.” BALCA commented that the regulations do not appear to contemplate a situation where more than one newspaper is circulated in the area of intended employment and the newspapers are equally appropriate given the employment at issue and the workers likely to apply for the job. BALCA conveniently declined to comment on that issue. So while it is great that employers can choose any newspaper as long as it is one of general circulation in the area of intended employment, employers need to remain concerned about ensuring that the paper chosen is the “most appropriate” paper and it’s probably just best to use the same paper for both of the Sunday ads. 

These recent cases highlight the “little” things that can lead to a big denial of a PERM. Just reading these cases creates heightened awareness of potential issues and naturally leads to better and more focused reviews of documentation prepared during the PERM process and documentation submitted to the Department of Labor.

BALCA ON THE HOME OFFICE OPTION

By Cora-Ann V. Pestaina

It’s time for another lesson, courtesy of BALCA (Board of Alien Labor Certification Appeals).  In a November 2010 blog entitled PERM AND THE ROVING EMPLOYEE I discussed different types of roving employees and the existing BALCA or DOL (Department of Labor) guidance on how recruitment for these types of positions ought to be conducted. I raised the question, “What should the employer do when the employee works from home in a location that is different from the employer’s headquarters?” and stated “[this] less common issue of the home office has not yet been the subject of a BALCA decision.”

In an October 2011 blog entitled, BALCA SAYS THERE IS NO NEED TO LIST EVERY BENEFIT OF EMPLOYMENT IN JOB ADVERTISEMENTS, with still no definitive word from BALCA on the home office issue, I discussed Matter of Emma Willard School, 2010-PER-01101 (BALCA, September 28, 2011) where the DOL’s CO (Certifying Officer) had denied the employer’s PERM application because the recruitment failed to state that subsidized housing was being offered to the qualified US worker. In that case, BALCA held that there is no obligation for an employer to list every item or condition of employment in its advertisements and listing none does not create an automatic assumption that no employment benefits exist. In my blog, I suggested that an employer whose PERM application was denied because the recruitment did not list a “work from home” benefit, might be able to argue, under Emma Willard School, that it was not required to list all benefits in its recruitment and that the choice not to list the “work from home” benefit should not serve to deter any US workers from applying for the position because US workers are savvy and well aware of the increasing flexibility offered by employers with regard to where they perform the duties of the job. While I presented an argument that could have been made after receipt of a PERM denial, readers of that blog would likely have taken away that it is certainly better to list the “work from home” benefit in all of the recruitment. BALCA has finally spoken on this issue and has made the requirement very clear.

In Siemens Water Technologies Corp., 2011-PER-00955 (July 23, 2013), the employer filed a PERM application for the position of Field Service Engineer. In all its recruitment the employer listed Houston, Texas as the location for the job opportunity and conducted recruitment from that location. The PERM was audited and in its audit response, the employer explained that the primary worksite listed on the ETA Form 9089 was the same as the foreign worker’s home address because the Field Service Engineer would be permitted to work from home and travel to various client sites as necessary. The CO denied the application because the benefit of working from home was not offered to U.S. workers. 

In its Request for Reconsideration, the employer argued that there is no regulation that requires advertisements to indicate that the geographic location is a home office. The employer argued that its recruitment was properly conducted based on the Texas worksite address and in support of its position cited minutes from the DOL’s March 15, 2007 Stakeholders Liaison Meeting which read as follows:

19. If an employer requires an employee to work from home in a region of intended employment that is different from the location of the employer's headquarters (i.e. work is required to be performed in a designated county or state that differs from the employer's headquarters), please confirm that the prevailing wage determination and recruitment can take place in the location of the employee's region of intended employment. Please confirm that the notice of posting under this circumstance should be posted at the company's headquarters.

If the 9089 form shows the worksite at a designated location other than headquarters, the PWD and recruitment would be for the worksite. AILA note: This issue essentially requires a strategy decision. The PERM form can state that the worksite is the home office, in which case the PWD and recruitment can be for the area of the home office, but the fact that the worksite is the same as the foreign national’s home address will be picked up by the PERM system and the case will likely be audited. This can then be addressed in the audit response and should not be a problem, if the case is otherwise approvable. Alternatively, the PERM form can state that the worksite is the headquarters office, but then the PWD and recruitment must be done for that location.

20. In the case of a telecommuter or an employee whose location is not specific to the job, please confirm that the notice of posting, recruitment, and prevailing wage determination should be based on the location of the employer's headquarters.

Please see answer to number 19 above.

The employer argued that its recruitment did not contain any terms and conditions of employment that were less favorable than those offered to the foreign national. The CO denied reconsideration and forwarded the case to BALCA.

BALCA held that the employer’s reliance on the minutes of the Stakeholders Liaison Meeting was misplaced and stated that while the employer may indeed conduct recruitment from the location where the foreign national resides and may list the foreign national’s address as the primary worksite on the ETA Form 9089, the minutes of the Stakeholders Liaison Meeting are silent on what geographic location should be included in the advertisements in cases where the applicant would work from home. BALCA found that applicants reading the employer’s advertisements would think that they were restricted to working in Houston, Texas when, in contrast, the foreign national was given the option to work from his home which did not necessarily have to be in Houston, Texas. BALCA held that the recruitment was unduly restrictive and misleading and could have prevented potential US applicants from applying for the job. Although the CO did not cite this in the initial denial, BALCA also found that the recruitment violated 20 CFR § 656.17(f)(3) and (4) because it was not specific enough to apprise applicants of where they would have to reside to perform the job and applicants were also not informed of the travel requirement that the employer explained in its audit response. 

Time and time again we see that the fact that the PERM regulations provide no guidance on a particular issue is no defense when the DOL decides that an error has been made. As practitioners, we are left constantly trying to anticipate potential novel reasons for denial. We cannot confidently rely on existing guidance but must somehow anticipate future guidance and comply with that! One of the main takeaways from this case is that, as a rule of thumb, it’s a good idea to include in the recruitment any unusual benefit that will be given to (e.g. work from home, subsided housing) or requirement that will be asked of (e.g. travel, relocation, mandatory week-end employment) the qualified candidate for the offered position.

RESUME REVIEW IN THE PERM PROCESS

by Cora-Ann V. Pestaina

Under the Immigration and Nationality Act, the Department of Labor (DOL) has a statutory responsibility to ensure that no foreign worker (or “alien”) is admitted for permanent residence based upon an offer of employment absent a finding that there are not sufficient U.S. workers who are able, willing, qualified and available for the work to be undertaken and that the admission of such worker will not adversely affect the wages and working conditions of U.S. workers similarly employed.  INA § 212(a)(5)(A)(i).The DOL fulfills this responsibility by determining the availability of qualified U.S. workers before approving a permanent labor certification application and by ensuring that U.S. workers are fairly considered for all job opportunities that are the subject of a permanent labor certification application.  Accordingly, the DOL relies on employers who file labor certification applications to recruit and consider U.S. workers in good faith. 

Attorneys, agents, and foreign workers are prohibited from interviewing and considering U.S. workers during the permanent labor certification process, as described in 20 C.F.R. § 656.10 (b)(2)(i) and (ii). However, the DOL does not prohibit attorneys and agents from performing the analyses necessary to counsel their clients on legal questions that may arise with respect to this process.  The employer, and not the attorney or agent, must be the first to review an application for employment, and must determine whether a U.S. applicant’s qualifications meet the minimum requirements for the position, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed.

The DOL has indicated 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. Yet, real world recruiting is at times impossible when the DOL sets forth “unreal” recruitment standards for employers! As an attorney who regularly counsels employers filing PERM labor certifications, I have found that one of the most difficult concepts for some employers to grasp is the resume review process and how it ought to be conducted in the PERM process.It’s hard for an employer to comprehend why they have to continue to assess an applicant who upon receipt of an e-mail from the employer, responded that he was “away” and would get back to the employer at some point in the following week; or an applicant who, when contacted, had no recollection that he had even applied for the job and needed to be informed of the job opportunity and the employer’s business; or an applicant who only listed “Software Engineer” as his experience leaving the employer unclear as to what skills he may possess. As reasons for rejection of applicants, employers sometimes state,“applicant is far too overqualified and I would never hire him for this position” or “these applicants went to foreign universities and I know they require sponsorship.” While these reasons may be acceptable in the employer’s normal consideration process, neither is a valid reason for rejection in the PERM process.Some employers become frustrated and push back. I find that I very often have to preface my comments with “We are not operating in the real world here…” 

Currently, and for some time now, every PERM audit letter requests verification of the unavailability of US workers. A request for resumes and applications for all US workers who applied for the job opportunity seems to have become the standard. The DOL specifically wants to review documentation of the employer’s contact with applicants and its assessment of the qualification of applicants.Yet, other than the expectation that the employer conduct “good faith” PERM recruitment, the DOL has not issued significant guidance with regard to resume review. But it is possible to glean some information from recent decisions by the Board of Alien Labor Certification Appeals (BALCA). In particular, two specific cases, involving Supervised Recruitment, shed some light on how the DOL expects employers to conduct resume reviews.

In Matter of Goldman Sachs & Co., 2011-PER-01064 (June. 8, 2012), the employer, indicated on the ETA Form 9089 that it would accept for the position of Financial Analyst, “any suitable combination of education, training and experience,” language well-known to practitioners filing PERM applications as the Kellogg language based on Matter of Francis Kellogg, 94-INA-465 (Feb. 2, 1998) (en banc). During Supervised Recruitment, the employer submitted an expert opinion to the DOL detailing why thirty-five U.S. worker applicants had each been rejected without interview. As examples, BALCA highlighted one applicant who was rejected despite his “substantial academic business credentials” and because he did not possess “narrowly focused” experience necessary for the position and another applicant who the employer described as having “a long and varied career in accounting and financial reporting” but lacking in certain specific experience. The Certifying Officer (CO) denied the labor certification finding that the employer rejected U.S. workers for other than job related reasons. The CO specifically emphasized that the employer had indicated its willingness to accept “any suitable combination of education, training or experience” and had not taken the time to explore and evaluate the suitability of the applicants’ education, training or experience. The DOL cited 20 C.F.R. § 656.24(a)(2)(b) and stated that “where there is a reasonable possibility the applicant may meet the job requirements, it is incumbent on the employer to further investigate the U.S. applicant’s qualifications.” In its request for reconsideration, the employer argued, inter alia, that it has no duty to interview candidates who fail to show on their resumes that they satisfy the major job requirements. 

BALCA held that the CO did not question the employer’s business necessity for its job requirements, but instead questioned the fact that the employer rejected without interview applicants who appeared facially qualified for the position and did not address how they were unqualified even possessing a combination of education, training and experience. BALCA upheld the CO’s denial and cited Blessed Sacrament School, 96-INA-52, slip op. at 3 (Oct. 29, 1997) which held that where the applicant’s resume shows a broad range of experience, education and training that raises a reasonable possibility that the applicant is qualified even if the resume does not expressly state that he or she meets all the requirements, an employer bears the burden of further investigating the applicant’s credentials.

The takeaway from Goldman Sachs, and the concept that can be difficult to explain to employer clients, is that regardless of how convinced the employer may be that the U.S. worker applicant is unqualified for the position based only on his resume, if there is even a hint that the applicant may appear qualified to the untrained eye of a CO, it is worth the employer’s time to interview the applicant. During an interview, the employer can zero in on the specific requirements of the offered position and better assess the applicant’s qualifications. 

In JP Morgan Chase & Co., 2011-PER-01000 (Jul. 16. 2012), the employer’s requirements included “Proficiency in Excel or Access,…understanding of databases (Lotus Notes and SharePoint), must have experience liaising with a technology team to develop/update product enhancement tool, databases and work flow engines…” The CO denied the case after concluding that U.S. worker applicants had a combination of education, training and experience equivalent to the employer’s job requirements and could acquire Access and SharePoint skills while on the job.

Rather than focusing, as it did in Goldman Sachs, on whether or not the employer had a duty to interview the U.S. workers to better assess their qualifications, the key issue for BALCA was whether or not the employer’s stated minimum requirements were established as a business necessity. BALCA stated that the employer had submitted a business necessity explanation in its Recruitment Report detailing why it requires an understanding of Lotus Notes and SharePoint and why job training was not feasible; the CO did not contend that these requirements were unduly restrictive; and the resumes of the U.S. worker applicants showed that they did not have the required skills. Based on this, BALCA held that the CO cannot dismiss the employer’s stated requirements and substitute his judgment for the employer’s. 

Confused much? The JP Morgan case emphasizes the importance of submitting a compelling business necessity argument in response to PERM audits. That way, if and when the employer rejects U.S. workers, the reason will be clear to the CO. But does the employer have to interview when the applicant’s resume does not list all the requirements or not? I think the clear answer is that the employer should always err on the side of interviewing the applicants. If there is even a hint of a question as to whether the applicant may appear qualified, the employer should interview. If the applicant failed to list the one technology required for the position but listed 5 similar technologies, the employer should interview. If the employer has stated that it will accept any combination of education, training and experience and the applicant has broadly listed his experience as simply “Software Engineer,” the employer should interview. While the DOL claims that the employer’s consideration of these applicants should resemble its normal consideration process, it just cannot. In normal consideration processes, the employer may utilize its judgment to reject any applicant deemed unqualified.  When it comes to the PERM process, the employer must go out of its way to demonstrate to the DOL that it has, in good faith, tried it’s best to find a U.S. worker to fill the offered position. In addition, the employer should take pains to explain in great detail, if audited, specifically why each applicant was not qualified for the offered position, providing evidence of any interviews and other communication with the applicants.  

BALCA CLARIFIES DOL’S POSITION ON PROOF OF PUBLICATION OF THE SWA JOB ORDER AND ADS PLACED BY PRIVATE EMPLOYMENT FIRMS UNDER PERM

By Cora-Ann V. Pestaina

As usual, BALCA (Board of Alien Labor Certification Appeals) decisions are very important for practitioners as they offer crucial insights into how to avoid some of the pitfalls in preparing and filing a labor certification application under Program Electronic Review Management (PERM) or into what arguments can be made in response to the unfortunate receipt of a PERM denial notice. BALCA recently issued some notable decisions.

DOCUMENTATION OF THE SWA JOB ORDER

While the Department of Labor (“DOL”) is obsessed about the employer presenting proof of publication of its recruitment, BALCA recently held, in an en banc decision, A Cut Above Ceramic Tile, 2010-PER-00224 (Mar. 8, 2012), that based on the history of the PERM regulations and the plain language of 20 C.F.R. §656.17(e)(2)(i), proof of publication of the State Workforce Agency (“SWA”) job order is not required supporting documentation.

The PERM regulations at 656.17(e)(2)(i) require an employer filing a PERM application to place a job order with the SWA serving the area of intended employment for a period of 30 days. That same section of the regulations also states, “[t]he start and end dates of the job order entered on the application serve as documentation of this step.” Pursuant to 656.10(f), all documentation supporting the PERM application must be retained for five years after filing the application. 656.17(a)(3) mandates that the employer must furnish “required supporting documentation” to the Certifying Officer (“CO”) if the PERM application is audited. A substantial failure by the employer to provide the required documentation will result in a denial of the PERM application. 656.20(b).

In A Cut Above Ceramic Tile, the employer attested, on an ETA Form 9089 filed on January 8, 2007, that, as part of its domestic recruitment efforts for the position of Tile Setter, it placed a job order with the SWA in the area of intended employment from July 13 to August 12, 2006. On June 11, 2009, the DOL issued an audit notification, which included the request for a copy of the job order placed with the SWA downloaded from the SWA internet job listing site; a copy of the job order provided by the SWA; or other proof of publication from the SWA containing the content of the job order. As part of its audit response, the employer included a copy of its completed Employer Job Order Information Sheet from VaEmploy.Com, the SWA for the state of Virginia. Citing 656.20(b) as authority, the CO denied the PERM application based on the employer’s failure to provide proof of publication of the SWA job order containing the content of the job order, as requested in the audit notification letter. The CO found that the employer’s submission of the Employer Job Order Information Sheet did not show the final content of the job order as run by the SWA.

The Employer filed a motion for reconsideration of the PERM denial arguing that the PERM regulations provide that the SWA job order is documented by the start and end dates entered on the ETA Form 9089. The employer also argued that it had tried to obtain proof of publication from the SWA but had been informed that proof of the publication of its job order had been deleted. The CO affirmed the denial and forwarded to case to BALCA which also affirmed the denial and held that the employer’s documentation only showed that the job order was placed for the required 30-day period but did not provide proof of its contents.

The Employer then filed a petition for en banc review which BALCA granted to resolve the issue of whether a CO may deny certification of a PERM application based on the employer’s failure to provide proof of the publication of the SWA job order. BALCA invited the American Immigration Lawyers Association (AILA) to file an amicus brief which it did. There was a conflict between BALCA panels because, in another case, Mandy Donuts Corp., 2009-PER-481 (Jan. 7, 2011), a BALCA panel compared the PERM regulations at 656.17(e)(2)(i) on placement of the job order and the regulations at 656.17(e)(1)(i)(B)(3) and 656.17(e)(2)(ii)(C) on placement of a newspaper advertisement and pointed out that the PERM regulations for documentation of proof of newspaper advertisements specifically require the employer to provide copies of the newspaper pages in which the advertisement appeared or proof of publication furnished by the newspaper. The panel held that the PERM regulations only require “placement” of the job order for 30 days which is documented by the start and end dates entered on the PERM application.

The en banc panel in A Cut Above Ceramic Tile agreed with the Mandy Donuts panel and held that the distinction in the regulations is clear. The drafters of the regulation could easily have included a requirement that employers provide proof of publication of the SWA job order. In fact, the regulations governing the placement of a job order for the H-2B temporary nonagricultural labor certification program, also administered by the Employment and Training Administration (“ETA”) specifically require that the employer maintain a copy of the SWA job order or other proof of publication containing the text of the job order. 656.15(e)(1). The en banc panel reasoned that the ETA intentionally drafted the H-2B and the PERM SWA job orders regulations differently. In fact the ETA specifically stated in its response to comments regarding the audit process, that the employer is only required to provide the start and end date of the job order on the application to document the job order has been placed and the gathering of additional information on the job order from the SWA will not be necessary. See ETA, Final Rule, Implementation of New System, Labor Certification Process for the Permanent Employment of Aliens in the United States [“PERM”], 69 Fed. Reg. 77326, 77359 (Dec. 24, 2004). Essentially, the CO does not have the power to request just any type of documentation and the employer’s application may only be denied under 656.20(b) when the absent documentation is required.

While this en banc decision may appear attractive, and is certainly useful when inheriting flawed cases, practitioners ought to continue the practice of printing copies of the job order to demonstrate good faith recruitment. The BALCA en banc panel made sure to comment, in note 5, that “the spirit and the context of the PERM regulations, which are grounded in attestations backed up by retained documentation to support attestations, strongly suggest that an employer should retain and be able to produce documentation about the content and dates of action on all elements of recruitment. We would anticipate that most employers recruiting in good faith will have retained documentation in some form to show the content of the job order, and if so be able to produce it.” However, it is now clear that failure to produce the SWA job order cannot be the sole basis for a PERM denial.

THE USE OF PRIVATE EMPLOYMENT FIRMS TO CONDUCT RECRUITMENT

Under 656.17(e)(1)(ii), when conducting recruitment for a professional position, the employer must conduct three additional recruitment steps to advertise the position. The employer may choose from ten forms of recruitment including the use of a private employment firm or placement agency. 656.17(e)(1)(ii)(F) states:

The use of private employment firms or placement agencies can be documented by providing documentation sufficient to demonstrate that recruitment has been conducted by a private firm for the occupation for which certification is sought. For example, documentation might consist of copies of contracts between the employer and the private employment firm and copies of advertisements placed by the private employment forms for the occupation involved in the application.

In Credit Suisse Securities, 2010-PER-103 (Oct. 19, 2010), BALCA rejected the employer’s argument that 656.17(f), requiring that advertisements placed in newspapers of general circulation or in professional journals state the name of the employer and provide a description of the vacancy specific enough to apprise U.S. workers of the job opportunity, was not applicable to the additional recruitment steps for professional occupations, and held that the regulation in fact governs all forms of advertisement. However, not all the additional recruitment methods for professional positions readily lend themselves to these requirements. For instance, when recruiting through private employment firms, it makes no business sense to indicate the name of the employer because an applicant could then bypass the headhunter and apply directly to the employer. Indeed, in Credit Suisse Securities, BALCA acknowledged in note 7 that the requirements of 656.17(f) only applies to advertisements, and that it was not making a determination with respect to job fairs, on-campus recruiting, private employment firms and campus placement offices.

In World Agape Mission Church, 2010-PER-01117 (Mar. 23, 2012), the employer conducted recruitment for the professional position of “Pastor (Associate)” recruiting through a private employment agency as one of the three additional recruitment steps for professional positions. The CO issued an audit notification and, as part of its response to the audit notification, the employer submitted a letter from the private employment agency certifying that the agency had checked its database for any qualified applicants and had posted the job posting online. The job posting listed the job title, salary information, a job description, experience and education requirements, and that the position was full-time. The job posting was identifiable by a job number. The CO argued that the employer’s name must be included in an advertisement to ensure that the results of an employer’s test of the labor market are legitimate. The CO cited 656.17(f)(1), requiring that advertisements placed in newspapers of general circulation “name the employer.”

BALCA noted its decision in Credit Suisse Securities but held that an advertisement placed by a private employment agency is different than one placed directly by the employer. BALCA referenced its decision in HSB Solomon, 2011-PER-2599 (Oct.25, 2011) that 656.17(f) does not apply to advertisements placed by private employment firms. However, World Agape Mission Church makes it clear that the employer still has a duty to recruit in good faith and to make the job opportunity clearly open to all U.S. workers even when using a private employment agency. Of particular note was the fact that the job posting provided applicants with sufficient information like the job title, job duties, and education/experience requirements, and even if it did not list the name of the employer, it listed a job number which matched the job number listed in the letter from the employment agency certifying its recruitment. This allowed the CO to match the listing to the agency’s advertisement even without the inclusion of the employer’s name in the posting.

SUPERVISED RECRUITMENT

As the supervised recruitment train keeps barreling through, we have to keep on the lookout for any BALCA decisions to help guide us through the process. BALCA recently issued two decisions worth reading.

In Kennametal, Inc., 2010-PER-01512 (Mar. 27, 2012), BALCA held that the employer had improperly rejected U.S. workers because it did not consider the possibility that certain applicants could become qualified after a reasonable period of on-the-job training. But most interestingly, BALCA held that the employer’s rejection of applicants for not possessing the requisite bachelor’s degree was unlawful and specifically listed examples of applicants who had an associates’ degree and 10 to 24 years of experience. BALCA held that because the employer indicated in its advertisements that it would “accept a combination of education, training and experience” (well-known to practitioners filing PERM applications as the Kellogg language based on Matter of Francis Kellogg, 94-INA-465 (Feb. 2, 1998) (en banc), the employer should have considered these applicants and interviewed them to further evaluate their skills. This is particularly interesting in light of the fact that the DOL routinely requests that employers list the Kellogg language in the supervised recruitment advertisements even where it is not applicable. Now, employers have to be alert to the fact that the DOL could then use that same Kellogg language against them to argue that they unlawfully rejected U.S. workers.

In JP Morgan Chase & Co, 2011-PER-00635, BALCA upheld the CO’s denial of the PERM application under supervised recruitment because the employer did not list the addresses of the U.S. worker applicants in the body of its recruitment report as required under the supervised recruitment regulations at 656.21(e)(3) despite the fact that the employer had submitted copies of all the resumes which listed the U.S. addresses of the applicants.