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Recent Board Of Alien Labor Certification Appeals (BALCA) Decisions Of Interest

by Alan Lee, Esq.

The eight administrative appellate decisions below illustrate various pitfalls which employers and their representatives can sometimes encounter on the path to obtaining PERM labor certification approval. The issues run the gamut from what documentation is expected to demonstrate that a job order was placed or that an employer referral program was effectively communicated to company employees; what constitutes good advertising where the employer uses the same newspaper for both the general circulation and local ads or where there is a travel or other location requirement; and the strict attitude of BALCA and the Certifying Officers in enforcing total compliance and not forgiving small deviances where supervised recruitment has been requested.

A Cut Above Ceramic Tile, 2010-PERM-00224 (March 8, 2012), a recent BALCA en banc decision, held that job order documentation is no longer required since the regulation says that the job order is documented by filling in the job order start and end dates on the application. The Certifying Officer (CO) had denied the case where the employer included a copy of its completed employer job order information sheet of the State Workforce Agency (SWA), stating that the employer failed to provide proof of publication of the job order of the SWA containing the content of the job order as requested in the audit notification letter, and that the employer's proof did not confirm that the SWA ran the job order or showed the final contents of the job order as run by the SWA. In a subsequent Department of Labor (DOL) stakeholders meeting on 3/29/12, DOL acknowledged that even though job order documentation is no longer required, nothing prevents DOL from denying cases where it is provided if there is a defect in the job order. Also DOL could request the job order directly from the SWA.

Symrise Inc., 2012-PER-00558 (5/18/12), held that where the employer uses the same newspaper for the general circulation and local ads, BALCA will accept the advertising for the two forms of recruitment as long as the employer proves that the newspaper is both a newspaper of general circulation and a local or ethnic newspaper. Here the employer ran the ad three times, twice to meet the requirement of the general circulation ad and once more for the local ad.

Marlabs Inc., 2010-PER-01574 (3/16/12), held that in an employer referral program (ERP), an employer needs to show more of a link between the job opportunity and the referral program. Here the employer's audit response included a single undated page from its employee manual indicating the reward program. The CO said that the employer had failed to provide dated copies of the employer notices or memoranda of advertising the program and specifying the incentives offered. BALCA quoted Clearstream Banking S.A., 2009-PER-15 (3/30/10), that the employer must minimally be able to document 1. the ERP offers incentives to employees for referral of candidates, 2. that the ERP was in effect during the recruitment effort the employer is relying on to support its labor certification application, and 3. that the employer's employees were on notice of the job opening at issue. Here there was nothing in the job posting or internet job posting stating that the job opportunity was eligible for the incentives offered under the ERP.

World Agate Mission Church, 2010-PER-01117 (3/23/12), held that where private employment firms or placement agencies are used, the requirement that ads placed in newspapers of general circulation "name the employer" does not apply to ads placed by private employment firms. The regulation at 20 CFR 656.17(e)(1)(ii) states that the use of such can be documented by "providing documentation sufficient to demonstrate the recruitment has been conducted by a private firm for the occupation for which certification is sought" and that "documentation may consist of copies of contracts between the employer and the private employment firm and copies of advertisements placed by the private employment firm of the occupation involved in the application. "

Kennametal Inc., 2010-PER-01512 (3/27/12), shows that supervised recruitment is different and BALCA will support the CO's decision that the employer should have interviewed more to see whether the candidates were qualified on a combination of education, training or experience. Here the requirements were MSME or BSME + 5 years experience and that "any suitable combination of education, training or experience is acceptable." BALCA agreed with the CO that HS plus 20 years of experience could have qualified; and that Associates in ME with 10 years of experience, and another Associates + 24 years of manufacturing experience should have been considered. On the special skills, 3-D modeling, Unigraphics, knowledge of physics concepts of heat transfer and fluid dynamics, BALCA agreed with the CO that the employer failed to consider whether any of these candidates could have been qualified for the position after an on-line tutorial or training course.

J.P. Morgan Chase & Co., 2011-PER-00635 (3/27/12), illustrates again that supervised recruitment is different, and the PERM application was denied where the employer failed to follow the instructions for the recruitment report that it "State the names, addresses, and provide resumes ... " by not putting the addresses on the report but writing "Please note that the resumes, which are part of this recruitment report, include the name and address of each applicant." BALCA affirmed the CO saying that the plain language of the regulation requires the employer to state the addresses of the U.S. workers and does not permit for addresses to be incorporated by reference to other documents within the administrative file. Also that the very fact that the case was selected for supervised recruitment put the employer on notice that special scrutiny was being placed on the application.

Sun Microsystems Inc., 2011-PER-00501 (3/29/12) held that where the notice of filing (posting) and ads described the geographic area as Santa Clara, Calif., but Form 9089 also included "various unanticipated locations throughout the U.S.," BALCA affirmed the CO saying that the employer had violated 20 CFR Section 656.17(f)(4) by including different geographic locations in the 9089 than were stated in the advertisements. Also that if the employer had informed U.S. workers that the job included various unanticipated locations throughout the U.S., more U.S. workers may very well have applied.

Deloitte Financial Advisory Services LLP, 2011-PER-00342 (3/29/12), held that where the employer described the geographic area on the 9089 as including "various unanticipated Deloitte locations and client sites nationally" and did not include that in the regular and website ads, the employer violated the regulation by not specifically apprising U.S. workers of the job opportunity.

This article 2012 Alan Lee, Esq.

About The Author

Alan Lee is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory and registered in the Bar Register of Preeminent Lawyers. He was also recently named to the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

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