IMMIGRATING TO THE UNITED STATES:

EMPLOYMENT-BASED

by

ALLEN E. KAYE, ESQ.

Law Offices of Allen E. Kaye, P.C. New York City

and

DEBORAH J. NOTKIN, ESQ.

Barst Mukamal & Kleiner LLP

New York City

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EMPLOYMENT-BASED VISA PETITIONS

Deborah J. Notkin

Barst Mukamal & Kleiner LLP New York, NY

I. Employment-based Visa Petitions which are Labor Certification Exempt

1. Extraordinary Ability Aliens – Eb-1 Category

Aliens of extraordinary ability are defined by INA § 203(b)(l)(a) as those who can show that they have "extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentations.

The INS regulations pertaining to extraordinary ability aliens are found at 8 CFR §204.5(h).

The documentary requirements to establish extraordinary ability found at 8 CFR § 204.5(h)(3) are as follows:

Evidence of a major internationally recognized award or evidence satisfying at least three of the following ten standards plus an additional miscellaneous option:

(a) receipt of lesser nationally or internationally recognized prizes or awards for excellence;

(b) membership in associations in the field which demand outstanding achievement of their members;

(c) published material about the alien;

(d) evidence that the alien is a judge of the work of others;

(e) evidence of the alien's original contributions of major significance to the field;

(f) authorship of scholarly articles;

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(g) display of the alien's work at artistic exhibitions or showcases;

(h) evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation;

(i) evidence that the alien is paid a lot in relation to others in the field;

(i) evidence of commercial success in the performing arts, or

(k) other comparable evidence if the above standards do not readily apply to the field.

2. Outstanding Professors and Researchers – Eb-1

Outstanding Professors and Researchers are defined by INA § 203(b)(1)(B) as those filling three requirements:

(a) Internationally recognized as outstanding in a specific academic area;

(b) Having a minimum of three years of experience in teaching or research in the area of expertise;

(c) Entering the U.S. to fill one of the following job offers:

1) a tenured or tenure track teaching position within a university or institution of higher learning.

2) a comparable indefinite research position within a university or institution of higher learning.

3) a comparably permanent position to conduct research of a private employer who has at least three full time researchers and has achieved documented accomplishments in an academic field.

The INS regulations pertaining to outstanding professors and researchers are found at 8 CFR § 204.5(i ).

The documentary requirements to establish international recognition as outstanding are as follows:

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1. receipt of major prizes or awards;

2. membership in associations which require outstanding achievements;

3. published material in professional journals written by others about the alien's work;

4. evidence that the alien participates as a judge in the work of others;

5. original scientific or scholarly research contributions to the field;

6. authorship or scholarly books or articles in journals with international circulation in the field.

As cited above, the statute requires outstanding professors and researchers to have at least three years of outstanding research or teaching experience. The regulations at 8 CFR § 204.5(i)(3)(ii) allow for fare circumstances where the alien has recognized, outstanding research achievements or full responsibility for classes taught prior to attaining an advanced degree. The advanced degree must be awarded before a petition under this subcategory can succeed.

An advanced degree is generally defined as being above a baccalaureate degree, although the regulations under 8 CFR § 204.5(i) are silent on this. Master's degree holders may qualify as well as those holding Ph.ds.

3. Certain Multinational Executives and Managers – Eb-1

The requirements for this category closely track those for L-1A intracompany transferees. Authorities are INA § 203(b)(1)(C) and 8 CFR § 204.5(j).

4. National Interest Waiver of Job Offer and Labor Certification – Eb-2

Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability in the sciences, arts or business are eligible for an immigrant visa based on the Eb-2 category pursuant to INA § 203 (b)(2). Subparagraph (A) requires an offer of employment by a U.S. employer. However, a waiver of this offer of employment is provided for in Subparagraph (B) when it is deemed to be in the national interest.

The Federal Regulations further clarify the scope of this waiver to include

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Waiver of the labor certification requirement normally required for employment based visa petitions under INA§ 203(b)(2)(A). 8 CFR § 204.5(k)(4)(ii).

The documentary requirements to show that the alien has an advanced degree are found at 8 CFR § 204.5(k)(3)(i):

a) An official academic record showing that the alien possesses a U.S. professional or academic degree above that of a baccalaureate or the foreign equivalent degree. 8 CFR § 204.5(k)(3)(ii)(A). (Subpart A)

Or

b) An official academic record showing a U.S. Baccalaureate Degree or a foreign educational equivalent and evidence from current and/or past employers showing five years of progressive work experience following the attainment of the baccalaureate. (Subpart B).

Exceptional ability in the sciences, arts or business requires "a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business." 8 CFR § 204.5(k)(2).

The documentary requirements to show that an alien has exceptional ability in the sciences, arts or business is found at 8 CFR § 204.5(k)(3)(ii). The petition must be accompanied by at least three or six types of evidence.

a) An academic degree, diploma or certificate in the area of exceptional ability from a college, university or other educational institution;

b) Letters from current or past employers documenting that the alien has at least ten years of full time experience in the occupation;

c) A professional license or certification;

d) Evidence that the alien has received a salary commensurate with exceptional ability in the occupation;

e) Evidence of membership in professional associations;

f) Evidence of recognition for achievements in the field of peers, governmental bodies or professional or business organizations.

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If the above six criteria do not apply, comparable evidence may be submitted. 8 CFR § 204.5(k)(3)(iii).

The regulations do not provide guidance on the type of documentation necessary to satisfy "national interest" for the purposes of the waiver. What qualifies as national interest has been the subject of a substantial number of Administrative Appeal cases and a frequent topic at legal seminars on Immigration and Nationality Administrative Appeals.

In 1998, a precedent case New York State Department of Transportation, established stringent criteria to qualify for the national interest waiver. These criteria are (1) the person seeks employment in an area of substantial intrinsic merit, (2) the benefit will be national in scope; and (3) the national interest would be adversely affected if a labor certification were required.

5. Schedule A - Eb-2 or Eb-3

This is a category of designated occupations which are deemed to be shortage occupations thereby being pre-certified. At present, only professional nurses and physical therapists are on Schedule A, Group I and Foreign Nationals of Exceptional Ability in the Arts and Sciences (including the performing Arts) are also included in Schedule A, Group II.

II. Employment Based Visa Petitions Requiring Labor Certification

1. Eb-2 Category - Advanced Degree and Exceptional Ability Aliens. If a national interest waiver is not attached to an Eb-2 petition pursuant to INA § 203(b)(2), a labor certification must accompany the petition.

2. Eb-2 Beneficiaries – The requirements to qualify for Eb-2 advanced degree professionals are found at 8 CFR § 204.5(k)(3)(i) as documented above under the section for National Interest Waiver. The requirements to qualify for Eb-2 exceptional ability are found at 8 CFR § (k)(3)(ii) as documented under the section for National Interest Waiver.

3. Eb-3 Category – Skilled workers, professionals and other workers – INA § 203(b)(3) with the exception of Schedule A, Group I, all require a labor certification.

Skilled workers are defined as those performing skilled labor requiring at least two years of experience or training. 8 CFR § 204.5(l)(2) defines qualifying training to be relevant post-secondary education.

Professional is defined as one who hold at least a U.S. baccalaureate degree or equivalent and is a member of the professions. 8 CFR 204.5(l)(2).

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Other Workers - Defined under INA§203 (b)(3) This subcategory encompasses all cases where the job requirements specified on the labor certification are less than a baccalaureate degree or two years experience or post-secondary school training.

This is the least desirable category because only 10,000 visas are allowed annually in the category worldwide, usually resulting in a long wait of many years to obtain an immigrant visa. 8CFR 204.5(l)(3)(D)

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ALLEN E. KAYE Trinity Building

l 11 Broadway, Suite 1304 New York, New Vork !0006

Phone: 212-964-5858 Fax: 212-608-3734 Em a ii: ~llen EKa vc(a!,1tYS:X!'.&Q!Q \Vcbsik: www.lrnyevisalaw.com

ALLEN E. KA YE, whose practice is limited to Irnmigration and Naturalization Law matters, has practiced United States immigration, naturalization, visa and consular law for the past 35 years. He is a graduate of Columbia University Law School (J.D.) and New York University Law School (LL.M.).

A nationally recognized expert in the field of U.S Immigration and Naturalization Law, Allen E. Kaye is a past National President of the American Immigration Lawyers Association (AILA) and a Member of the Board of Governors. Allen E. Kaye is a.lso on the Executive Committee of the l ntcrnational Lnw Section of the New York State Bar Association.

Mr. Kaye is a regular columnist on U.S. imrnigration and naturalization law {()r many newspapers across the U.S. He is a frequent lecturer on the U.S. immigration, naturalizalion, visa and consular law for various organizations, associations, and foreign consulates including the American Immigration Lawyers Association, The New York State Bar Association, The Queens County Bar Association, The New Jersey State Bar Association and many others.

Mr. Kaye is listed in the Martindale-Hubbell Bar Register of Preeminent Lawyers and also in The Best Lawyers in America, both in the field of Immigration and Naturalization Law. He is also listed in the Who's Who Legal, The International Who's Who of Business Lawyers. He is a co-founder ofIMMLAW, the National Consortium of Immigration Law Firms.

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11-IE UNITED STATES IMMIGRAJJLVISA SELECTION S'(SJI..:'JIA

A. :FAMILY-BASED IMMfGRATION

1. Immediate Relatives-spouses, parents of U.S. citir.ens whose child is over the age of twenty-one and unmarried children (under 21) of U.S. citi7..ens.

2. First Catxeoa - unmarried adult (over 21 years of age) children of U.S. citizens.

3, Second CategQKY-(a) spouses, minor children and (b) unmarried adult childru1 ofpcnnancnt residents.

4. Third Catee<>ry - married adult children of U.S. citizc11.

5. Jlourth Category- brothers and sisters of adult US. citizens (over 21 years of age).

B. EMPLOYMENT-BASED IMMIGRATION

I. First Cats:zor)': "Priority worlcers" - extraordinary ability' outstanding professors and researchers and certain multinational executives and managers - labor certification not required.

2. Second Category: Professionals holding advanced degrees or aliens of exceptional ability */** (National Interest Waiver).

3. Third Ca tee-ory: Professionals with baroilaureate degrees, skilled wOl:kers (2+ years of experience/training) and "otherworkcrs''. (-2 years of experience/training)*

4. fourth Category: '"'Special immignmts" - includes clergy, foreign missionary workers, etc- labor certification not required.

5. ,Fifth Catttorv: Investors -new enterprises employing at least IO U.S. workers+ $500,000-$1 million capiull - labor certification not required.

C. DIVERSITY-BASED IMMlGRATlON

Permanent divc.sityprogram (DV~Visa Lottery)

' Joh offer not required ''Requires labor certification **Job offer and labor certification requirement may be waived

., LABOR CERTIFICA'l10.l'{S_

1. The U.S. Secretary of Labor must find that:

a. there arc not sufficient workers in the U.S. who aro able, willing, qualified (or"cqually qualified" in the case of aliens who arc members of the teaching profession or who have exceptional ability in the sciences or the arts), an<l available at the time of application for a visa and admission to t11e United States and at the place where the alieu is to perform such skilled or unskilled labor (the question of !!Vailability of local workero). and

b. the employment of such aliens will not adversely affect the wages and working oouditions of worlcers in the U.S. similarly employed (generally, this is a question of prevailing wages).

2. Types of labor certifications:

l . Schedule A 2. Joh offer or individual labor certification (rww called PERM)

3. Note Schedule B - occupations 011 this list are those for which (generally) labor certifications will not be issued.

By: Allen E. Kaye Atto1ney at Law LAW OFFICES OF ALLENE. KAYE, P.C. 111 Broadway, 13th Floor New York, New York 10006 Tel: (212) 964-5858 Fax: (212) 608-3734

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..

Employment Based 1st Preference Extraordinary AbilityAlie~

"a level of expertise indicating that the individual is one of . that small percentage who have risen to th_e very top of the field

of endeavor." ·.

The alien must provide documentation from at l;ast three of the-following t~n 8.rou.ps: .. L Documentation of the alien's receipt oflesser nationally.or inteiµationallyrepogni.Zed prizes O.r awards for excellence in the field of endeavor. · · 2. Documentation of the alien's membership in international associations; in tl1e field for which · certification is sou0it, which re<:1uire outstanding achievementS of their disciplines or fields. 3. Published material about the alien in professional or major trade publications or other major media referring to the alien's work in the field for which classification is sought. Such evidence shall include the title, date and author of the materials and any necessarv translations. 4. Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specifications for which classification is sought. 5. Evidence of the alien's original scientific, scholarly, artistic, athletic or business~related contributions of major significance in the field. 6. Evidence of the alien's authorship of scholarly articles in the field, in profe..ssional or major trade publications or other n:1~-~!l_.1_edi~: · _ .-. ---·--·----.. --.. ·-----.... -~·--7. Evidence of the display of the alien's work in tho field at artistic exhibitions or showc~ses. ------ll 8. Evidence that the alien has performed a leading-~r crfiical rofo for organizations or establishments that have a distinguished reputation. 9. Evidence that the alien has commanded a high salary or other significantly high remuneration for seIVices, in relation to others in the field. · 10. Evidence of commercial success in the performing arts, as sho"'1). be box office receipts or record-;-­cassette, compact disc or video sales. _ _ __ 11. If the above standards do not readily apply to the beneficiary's occupatio_n, the petitioner may sub1~1it .· comparable evidence to establish the beneficiary's eligibility.

Allen E. Kaye Attorney.at Law LAW OFFICES OF ALLENE. KAYE, P.C. 111 Broadway, 13111 Floor . New York, New York 10006

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.. .. . .......... ...... .. - .. .. . .. ~' . .

EmQloyment Based 1$t Preference (Outsfandiitg Professor and Researchers)

The alien must provide documentation from at least three of the followin~ six J;rouos: L Documentation of the alien's recei2t of major £W..CS or awards for outstanding achievement in the academic fields. · 2. Documentation of the alien's membership in associations in the academic field which require outstanding achievements of their members; 3. Published material in professional written by others about the alien's work in the academic field. Such. material shall include the title, date and author of the material, and any necessary translation; . : · - -4. Evidence of the alien's participation, either individually or on a panel, as a judge of the work of otl1ers in the same or an allied field; . . . .

5. Evidence ofthe alien's oriJdnal scientific or scholarly research contributions to the academic fietd; or 6. Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with intemationalcirculation} in the academic field;

II. In addition, evidence should be submitted that the alien has at least 3 years of experience in teaching or research in the academic field. E rience in teachin or research while workin on an advanced M will on1 be a · table if: .

4. Evidence of teaching and/or research experience shall be in the form ofletter(s) from current or former employees and shall in_?}ude the name; address, and ~e title o( the writer, and a specific description of the duties ormcd .b the alien;~ .

2. A U.S. university or institution of higher learning offering the alien a permanent research position in the alien's aC11.demic field; or 3. A department, division, or institute of a private employer offering the alien a.permanent research position in the .alien's academic field. The department, division or institute must demonstrate that it el:nploys at least 3 persons full tim.e in research

. Positions, and that it has achieved docui:nented acconmlisbments in~a~n,.; a;;~~:;;L;;;e;;mr;;·;;~~fi;;1e:;;;Id;;·~========""'=~===*===""

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Allen E. Kaye Attorney at Law . LAW OFFICES OF ALLENE. KAYE, P.C. 111 Broadway, 13d' Floor New York, New York 10006

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... .. . .. -Schedule A, Group JI

''rccogajz.-ed outstanding 11Qtfonnance well-above the s.tand~r.4 .. far 1>rofessional com,.,..,,tence in the occuoation." TA G-I-656-10(.22

The alien must provide documentation from at least two of the following sevrui groirps: l. Documentation of the alien's receipt of intentionally rccogni.ze<l prizes or awards for excellenee in the field for whi«h certification is sought. _ . • · · . 2. Documentation of the alien's membership in ui:ternational associations, in the field for which certification is sought, which . · r uire outstanding achievements of their members as judi;cd by recoimized intema.tional experts in:theirdisciplines or fields. 3. Published material in professional publications about the alien, relating to the alien's ;york in the field for· which cert:lficatiop is sough~ which shall included .the title, date, and author of such published material. · · . · · · · . . 4. Evidence of the alien's participation on a panel or individually as a judge of the work ofothers in the samc·or in a,n allied field of soecialization to that for which certification is souclit. . · . 5. Evidence of the alien's original scientific or scholarly research contnoutions of major significance in the field for which certification is sought. · · 6. Evideooe of the alien's authorship of published scientific or scholarly articles in the field for which certification is sought, in internatioiµl professional journals or professionals journals with an international circulation. 7. Evidence of the display of alien's work, in the field for which certi.fication is sought, at artistic exlu1>itions in more than one countrv,

-·---.. ---·---·····- ·--····--····-- .............. _ .......................... _ ..................... ,.-----··--· ................. _. ____ ................. Alku..E...Kay.e. __ .-·----···--··-····· .. ---~--·-----· ......... ---------···------···-- -·-·---·· Attorney at Law LAW OFFICES OF ALLENE. KAYE, P .C..

. . ~

111 Broadway, 13 Floor New York, New York 10006

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BALCA Cases

Topics for Discussion

By Allen Kaye

Employee Referral Program • Matter ofDeloitte Services LP, 2010-PER-00348 (March 2, 2011) AILA Doc. No. 11030333.

BALCA found that 20 CFR §656. l 7(e)( I )(ii)(G) requires documentation of the employee referral program's incentives as well as the dates the program was advertised, despite the use of the words "can" and "or" in the regulation.

• AQR Capital Management, 2010-PER-00323 (January 26, 201 l), AILA Doc. No. 11012767. BALCA found that the recruitment report, showing that more than 90% of the applications received came from the ERP, was adequate documentation of the ERP as a method of recruitment notwithstanding the undated notice of the program.

• Sanmina-Sci Corporation, 2010-PER-00697 (January 19, 2011), AILA Doc. No. 11012131. BALCA vacates denial, sets standard for documentation of employee referral programs. For employee referral programs, an employer must document that 1) the program offers incentives to employees for referral; 2) the program wa<> in effect during the recmitment period; and 3) the employees were on notice of the job opening.

• Clearstream Banking S.A., 2009-PER-00015 (March 30, 2010), AILA Doc. No. I 0033130. BALCA reversed denial and granted labor certification finding employer was in compliance with requirements for an employee referral program and met all of the required steps in the PERM process.

" Bottomline Tech., 2011-PER-02325 (October 18, 2012), AILA Doc.No. 12102240. BALCA lound that the dates on the ETA 9089, a statement that the program was in effect when recruitment began, and proof that the ERP was part of the handbook was sufficient to show that the ERP was in effect during recruitment.

SW A Job Order • Matter of JBM Corp., 2011-Pim-02760 (February l 2, 2014)

Travel requirements of 20 C.F.R. 656. l 7(f) do not apply to job orders placed with the applicable SWA.

• Matter of/BM Corporation, 2011-PEU.-00465 (August 27, 2013) AILA Doc. No. 13082941

In a case involving a different BALCA panel than that which decided Chabad Lubavitch Center, BALCA found that in the context of a professional position, the content requirements for newspaper and journal ads at 20 CFR 656.17(1) apply to SWA job orders.

• Matter ofChabad Lubavitch Center, 2011-PER-02614 (July 29, 2013) AILA Doc. No. 13073040 BALCA reversed the CO's denial, finding that under the plain language of20 CFR 656. l 7(e)(2)(i), the content requirements f()r newspaper and journal ads at 20 CFR 656.17(f) do not apply to SWA job orders for non-professional positions.

• MatterofCapitol Building Services, 2012-PER~01971(February12, 2013) AILA Doc. No. 1302129

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Distinguishing professional from non-professional positions in the use of certain newspapers, BALCA found that the Washington Examiner was an appropriate publication to advertise a non-professional position. 1.

" A Cut Above Ceramic Tile, 2010-PER-00224 (April 6, 2011), No AILA Doc. No. BALCA held that "the Audit Notification letter required the Employer to furnish the supporting documentation for its application, including: A copy of the job order placed with the SWA serving the area of intended employment downloaded from the SWA Internet job listing site, a copy of the job order provided by the SW A, or other proof of publication from the SWA containing the content of the job order, where a job order is required by the recruitment provisions of 20 CFR 656 and/or a job order is listed on the ET A Form 9089 as a recruitment source.

The employer did not provide such documentation and instead submitted a copy of a completed SWAjob order form. Such documentation did not provide proofofthe content of the job order; rather, ii merely documented that the job order was placed for the required 30 day period. Since the employer's documentation failed to show proofofpublication of the job order from the SWA containing the content of the job order. BALCA affirmed the CO's denial of certification".

On September 26, 2011, BALCA provided for en bane review of the conflict between Matier r~f Bettina Equities Co., March 4, 2011, AILA Doc No. 11030821 and Mandy Donuts Corp., January 7, 201 !, AILA Doc No. 11011165. The question is whether the employer must show proof of publication of the SWA job order, or whether the application for the job order listing the strut and end date is sufficient.

• Bettina Equities Co., 2010~PER~00151(March04, 2011), AILA Doc. No. 11030821. BALCA on documentation of SWA job order, BALCA upheld the CO's denial, finding that the employer's submission of a completed SWA job order and fax confirmation sheet was insufficient to demonstrate to the CO that the job order was received and published by the SWA.

• Mandy Donuts Corp., 2009-PER-00481(January07, 2011), AlLA Doc. No. 11011165. BALCA remands finding evidence of job order placement sufficient. BALCA remanded the cuse for certification, finding that 20 CFR 656. l 7(e)(2) only calls for "placement" if an SWA job order, and that the CO's request for documentation that the job order was actually run was unreasonable.

AILA amicus brief urging BALCA to affirm tvlandy Donuts and find that an employer who fails to submit an SWA job order in response to a CO's audit does not violate 20 CFR §656.17(a)(3) because a copy of the job order is not a required document under the regulations, AILA Doc. No. Ill 12163.

• Karl Storz Endoscopy--America, 2011-PER-00040 (December 1, 2011), AILA Doc. No. 11120264. The en bane panel affirmed the CO's denial finding that the term "begin the recruitment" in 20 CFR 656.40( c) refers to the commencement of the first recruitment step, not to the commencement of any individual recruitment step.

• Matter ofHorizon Computer, 2010-PER~ 00809 (May 25, 2011), AILA Doc. No. 11060962. BALCA vacates denial, discusses timing of recruitment in relation to PWD. The court held that 20 CFR 656.40(c) does not require that the employer's first recruitment step begin during the validity period of the prevailing wage determination, only that some recruitment step be initiated during that time.

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Advertising Rcguircments

o Matterr~lSymantec Corp., 2011-PER-01856 (February! 1, 2014) AILA Doc, No. 14021248. BALCA reversed the CO's denial, finding that based on the plain language of the regulations and the regulatory history, the advertising content requirements of 20 CFR 656. l 7(t) do not apply to additional requirement steps found in section 656.17( e )(1 )(ii).

• Siemen 's, 2011-PER-00955 (July 23, 2013) AlLA Doc. No. 13072542. BALCA found the employer's ads unduly restrictive, where the employer listed "Houston, TX" (the place of the beneficiary's residence) as the geographic area of employment, when in fact, the position is more flexible and allows the person to work from home.

• Matter of Riverwalk 2012-PER-02882 (July 3, 2013) AILA Doc. No. 13071241. Noting that the CO "inexplicabl[y]" cited 20 CFR §656. l 7(f)(7) as authority for the denial when §656.l 7(f)(4) is directly on point, BALCA found no due process violation in affirming the denial, where the employer failed to list travel requirements in the ads.

• Matters of Oracle, 2011-PER-00963 (April 24, 2013) AILA Doc. No. 13042647. In two cases involving similar facts, BALCA looked for contextual cues in the NOF to determine whether the term "may" indicated the requirement applied to only some positions. BALCA upheld the denial of one case and reversed the second.

11> Matter qj'Wal·M<.tri, 20H-PER-02846 (March 19, 2013) AILA Doc. No. l 303204 l. BALCA rejected the argument that §656. l 7(e)(l )(i)(B)(J) requires a newspaper whose headquarters is within commuting distance of the area of employment and uphel.d the use of the Arkansas Democrat Gazette frw a position in Bentonvilie.

• Matter qf Intercontinental Enterprises, 201 l-PER-02756, (July 30, 2012), AILA Doc. No. 12073142. Noting that the Washington Post is a ma,ior U.S. paper, BALCA held that though the Examiner might have a wide circulation, the employer failed to show it was the most appropriate for the job opportunity.

o Matten?f'Symrise Jn, 2012~Pe'R~IJOS.58 (May 18, 2012), AILA Doc, No. 12052140,

BALCA held that the placing of a third advertisement in a single newspaper may satisfy the PERM recmitment requirements if the newspaper meets the criteria of both a local newspaper

and a newspaper of general circulation.

• Matter (?fPixar, 2011-PER-00637, (March 29, 2012), AILA Doc. No. 12040345. Where the ETA 9089 listed a bachelor's degree requirement but the employer's website listed high school education, BA LCA upheld the denial, finding that qualified applicants might not have applied if they thought they were overqualified

BALCA found that where the ETA 9089 included language regarding possible travel that was not included in the ad, the application was properly denied because qualified U.S. applicants who are interested in travel may not have applied.

$ Maller ofDeloitte FAS, 2011-PER-00342, (March 29, 2012), AILA Doc. No. 12040346.

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BALCA found that where the ETA 9089 included language regarding possible travel that was not included in the ad, the application was properly denied because qualified U.S. applicants who are interested in travel may not have applied.

• Matter<~lSun Micrmystems, Inc., 2011-PER-00501, (March 29, 2012), AILA Doc. No. 12040347. BALCA found that where the NOF did not specify "unanticipated worksites" as indicated in the ETA 9089, denial was proper because U.S. workers were not apprised of the opportunity, even if travel was optional and not required.

• Matter ofMicrosoji, 2011-PER-00324, (February 29, 2012), AlLA Doc. No. 12030120. Citing AILA liaison notes, BALCA held that where the employer placed a single ad for multiple jobs, the language "may require travel" was indistinguishable from DOL- endorsed ''some positions may require travel" and reversed the deniaL

• Matter of Target Point Media, LLC 2010-PER-01637 (February 27, 2012), AILA Doc. No. 12022849. BALCA found that where the job title of the ETA 9089 (Business Dev. Specialist) was different from that listed in the ads (Business Dev. VP) there was still a sufficiem nexus between the ads and the ET A 9089.

• Matter a/Nine Muses and Apollo, 2011-PER-00025 (December 27, 2011). AILA Doc. No. 11122845. BALCA found no support for the proposition that "a copy of the employer's text" for a radio advertisement under 20 CFR §656. J 7(e) (I) (ii) (J) must be written and concluded that that an audio recording of the ad was sufficient.

• MatterofTri Valley Golden Care, 2011-PER-00018 (December 27.2011) AILA Doc. No. I 1122842.

BALCA rejected the CO's argument that copies of newspaper ads must show the ad content and date without the newspaper being folded over and found that the copies submitted with

proof of publication were sufficient.

" Emma Willard School, 20l0-PER-OH 01 (September 28, 20 I l ), AILA Doc: No. l I 092935. BALCA discusses "Terms and Conditions" of employment for recruitment purposes. Noting that the regulations do not require ads to include wages or benefits, BALCA held that the failure of the employer to list the optional benefit of faculty housing in its recruitment did not violate 20 CFR §656. J 7(f)(7).

• De Caravalho Landscaping Service, Inc., 2010-PER-00842 (August 31, 200 I). The CO denied certification on the ground that the Employer failed to place advertisements in newspaper of general circulation on two difforent Sundays in violation of 20 C. F.R. §656. l 7(e) (2) (ii) (A). The Employer filed a request for review on April 26,20 l 0, asserting that the first newspaper advettisements was placed on Sunday, May 3, 2009, and the PERM application inaccurately stated that the first newspaper advertisement was placed on Monday, May 4,2009

BALCA says that you can submit evidence on reconsideration that explains something on the form but not change it. Is this good bye to Health America? DOL didn't intend to prohibit people from fixing typos when they wrnte the 2007 regulation. This simplifies life. If you make a mistake you must show its non material to get away with an error on the form. They are now saying the form is immutable. BALCA is prepared to rigorously apply this regulation even when it produces outlandish results.

,. Matter of Blue Ridge Erectors, Inc., 2010-PER-00997 (July 28, 20 l I).

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In Emma Willard School (20 I 0/110 l) BALCA said that the employer did not err in failing to say in the advertising that there was housing on the premises. In Blue Ridge Erectors (2010/997) the same BALCA panel affinned a denial on virtually the same grounds.

• Matter of Univ. of Texas, 2010-PER-00887 (July 20, 2011), AILA Doc. No. 11072168. BALCA permits electronic journal ad in special handling case. FAQ that requires print journal ads and found that an ad in a journal that only offered electronic publication was acceptable.

• IFuturistics Inc., 2010-PER-00631 (April 21, 2011 ), A ILA Doc. No. I 1042543. BALCA affirms denial, though CO was "arguably incorrect" constrained procedurally by 20 CFR 656.27(c) and unable to consider new evidence submitted by the employer with its request for review, BALCA affirmed the CO's finding that computer magazine was not a professional journal.

• Matter ofCCG Metamedia, 2010-PER-00236 (March 2, 2011) AILA Doc. No. 11030334. BALCA held that stating a range of experience in recruitment (2-4 years) that goes above the minimum requirements in the application (2 years), inflates the job requirements and is a violation of20 CFR §656.17(f)(6).

• Credit Suisse Securities (USA) LLC, 2010-PER-00103 (October 19, 2010), ACLA Doc. No. 10102033. BALCA finds all advertisements must comply with section 657.17 (f). BALCA affirmed the CO's denial, holding that all advertisements placed in fulfillment of additional recruitment steps for professional positions must comply with the 20 CFR section 656.17 (f) content requirement.

• Matter of M-1, LLC (A/KIA M-1 SWACO), 2011-PER-01256 (August23, 2012), AILA Doc. No. 12082642

BALCA held that the "travel requirement" in relation to the geographic area of employment under 20 CFR §656. I 7(f)( 4) is not limited to where the applicant would move for the job and upheld the denial where travel was omitted in the ads.

Recruitment Agency • World Agape Mission Church, 2010-PER-01117 (March 23, 2012), AILA Doc. No. 12032642

BALCA found that the requirements of20 CFR §656. 17(t), including naming the employer, do not apply to ads placed by private employment firms, but these ads must comply with the employer's duty to recruit in good faith.

.. HSB Solomon Associates LLC, 2011-PER -02599 (October 25, 2011), AILA Doc.No.11102761. BALCA held that where an ad placed by a private employment firm does not contain the content required by §656. 17(f), it must be dete1111ined whether the omission contravenes the employer's duty to recruit U.S. workers in good faith.

Alien had child aging out. Attorney got expedited review from BALCA. Decision issued the day after brief filed.

Ads placed by employment agency. This case is like Credit Suisse issue. The question was §656. l 7(f) - content of the advertisement. To what extent do they apply to requirements of §656.l7(e). The employer won, but it was a very poor decision from the practitioner's point of view. Good decision from the employer's point of view in this case.

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Does not give good guidance on what is proper thing to do. BALCA became sympathetic to the facts and wanted to rule quickly and didn't think it through.

• UNICA Corporation, 2010-PER-00006 (February 09, 201 l), AILA Doc. No. 11021660.

Notice of Filing

BALCA found that recruitment documentation did not show that the employment agencies recruit for software engineers, that they actually solicited for the position, or that the solicitation occurred during the proper time period.

• Matter of Redyk Travel, 2011-PER-02738 (August 8, 2013) AILA Doc. No. 13082146 BALCA found that where a PERM audit requests NOF documentation in accordance with 20 CFR §656. JO(d), the employer's attestation on the ETA 9089 is insufficient to demonstrate that the NOF was posted where it was clearly visible and unobstructed.

• Matter of Seven Oaks Landscape, 2011-PER-02628 (July 26, 2013) AILA Doc. No. 13072941 Disagreeing with prior panels, BALCA held that 20 CFR 656. J 0( d) does not require documentation of the posting dates of the Notice of Filing (NOF) and that the affirmation on the ETA 9089 that the NOF complies with the regulations is sufficient

• Matter or Architectural Stone Accents, 2011-PER-02719 (July 3, 2013) AILA Doc. No. 13070551 BALCA reversed the denial, finding the omission of a Spanish language requirement in the Notice of Filing was not by itself fatal to the application where the overall text of the NOF was sufficient to apprise U.S. workers of the job opportunity.

• Matter ofJDA Software, Inc. 2011-PER-02661(Sep1ember27, 2012) BALCA uphold denial where notice of filing, newspaper advertisements, and additional recruitment steps did not apprise U.S. applicants of the benefit of working from home.

• Matter of Saints, Inc & Piedmont Dairies, Inc., 201J~PB'R-00927 (June 13, 2012), AILA Doc. No. 12061949.

BALCA held that 20 CPR 656. l 7(t)( I )'s mandate to "name the employer" in the posted notice of filing cannot be satisfied by naming the authorized representative of the employer, in this case, the CFO.

• Maller ofMTHeating, Inc., 2011-PER-01250(May 30, 2012), AILA Doc. No. 12060150. BALCA upheld the denial for failure to state the posting location, noting that while 20 CPR

656. l O(d)(l)(ii) supports the arguments that there may be other ways to satisfy the posting requirements, the employer failed to present any.

<; Forest View Nursing Home and Rehab Center, 2010-PER-00106 (February l l, 2011), AILA Doc. No. 11022369.

BALCA vacates denial in the interest of fundamental fairness. BALCA found that although the CO stated that the notice of filing was not included in the audit response, it was clearly intended to be included, and could have been if not for a clerical loss upon sending of receipt.

• Robert VenuLi Landscaping, !NC., 2009-PER-00453 (October 27, 2010), AILA Doc. No. 10102960IL

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The notice of filing must include the name of the employer. The Board held that the hypothetical suggestion in Stone Tech, 2008 -PER-187 (January 5, 2008) that there are exceptions to the Notice Filing requirements is no longer viable.

e Matter r~j'Cortile Restaurant, 2010-PER-00683 (October l 2, 20 I 0), AILA Doc. No. 10I01366. BALCA discusses "business days" for notice of filing requirements. The Board vacated the denial, finding that where employees work on a weekend or holiday and can see the notice of filing, those days are "business days" for purposes of the notice requirement under 20 CFR section 656. !0 ( d) (1) (ii).

• Promotional Slideguide C01p., 2009-P:Kll-00324 (September 08, 2010) BALCA held that the Notice of Filing which was posted on its premises which stated "apply within" was sufficient to advise applicants where to apply for the occupation or send resumes as required under s.656. I 0 (d) (4) and 656.17 (1) (2).

Case was remanded to consider the question of whether the notice was sufficient to indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where the applicants will likely have to reside under sections 656. l O (d) (4) and 656.17 (t) (4).

BALCA Reverses Denial Where CO Failed to Timely Rule on Motion

BALCA found that the motion to extend time to respond to the audit tolled denial until the CO ruled on the

motion, and that the CO erred in relying solely on the fact that the motion had been made only two days

before the due date to deny the extension. Matter(?! Heso Electrical, l 2/16/J 3)

AfLA Doc. No. 13121761.

$ Alexandria Granite & Marble, 2009-PER-00373 (May 26, 20 I 0). Employer's NOF did not contain the location of the job opportunity. Employer argued that 20 C.F.R section 656.17 (f) ( 4), "adve1tisements must indicate the geographic area ... "deals with only the advertising requirements and not with an employer's internal NOF requirements. This argument does not hold merit. 20 C.F.R. Section 656.17 clearly state that the notice "must contain the information required for advertisements by section 656. l 7(t) .... "

Posting of the NOF is not a mere technicality. The purpose of the notice requirement is to allow any person to submit documentary evidence bearing on the Employer's labor certification application.

A I though the geographic location of a job opportunity may be obvious in the context of the particular employer's business, it is not administratively feasible for CO to investigate the circumstance of each applicant's business. Therefore, if employer fails to comply with the regulatory requirements by failing to include all of the required information on the NOF, it has the difficult burden of proving to CO that its error was inconsequential based on the circumstances. Employer did not meet its burden in the instant case.

Guidance on Redetermination e Matter of RMS Computer, 2010-PER- 00530 (June 16, 2011), AILA Doc. No. 11062365.

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BALCA found that the CO abused his discretion in treating the request for reconsideration as a request for BALCA review, thus precluding the employer from presenting evidence that the job requirements are normal to the occupation.

• !Futuristics JNC., 2010~PER~00631 (April 21, 2011), AILA Doc. No. l !042543. BALCA affirms denial, though CO was "arguably incorrect" constrained procedurally by 20 CFR 656.27(c) and unable to consider new evidence submitted by the employer with its request for review, BALCA affirmed the CO's finding that computer magazine was not a professional journal.

• Denzil Gunnels d/b!a/ Gunnels Arabians, 2010~PER-00628 (November 16, 2010), AILA Doc. No. 10112436.

BALCA held that the CO's discretion to reconsider a denial or treat it as a request for BALCA review under 20 CFR 656.24(g) cannot be exercised to preclude a meritorious argument regarding de facto compliance with the regulations when it did not previously have the opportunity to do so. However, where an employer unambiguously requests BALCA review, it is deemed to understand that the consequence is that the employer cannot supplement the record with argument or evidence that was not before the CO when the CO denied the application.

• Techdemocracy LLC., 2009-PER-00459 and 2011-PER-00058 (November 16, 2010), AILA Doc. No. 1011237!.

BALCA discusses acceptance of new evidence on reconsideration. BALCA upheld the CO's denial, finding that evidence existed at the time the application was filed, but was not submitted in response to the CO's audit is barred from a reconsideration request by 20 CFR 656.24(g)(2)(i).

6 CVS' RX Services, INC., on beha{/ofLalitha Prasad Rao Thungathurthi, 2010-PER-01108 AILA Doc. No. l 0 I l 2436 and Sanjaykumar Kantifal S'hah, 2010-PER-01275 (November l 6, 20 I 0), AILA Doc. No. t0112436.

The CO erred in forwarding the employer's ambiguous "request for review" to BALCA, rather than treating it as a request for reconsideration, where it precluded the employer from presenting a legal argument that it did not previously have the opportunity to present. In this case, the employer never had the opportunity to present the CO with the argument that the job opportunity in fact required an advanced degree and experience (thereby rendering it eligible to recruit U.S. workers with a journal advertisement), until is application was denied.

Kxperience Gained on Job • Matter (~f Maxim Integrated Products, 2011-PER-02310 (January 6, 2014) AILA Doc. No. 14011047.

BALCA upheld the CO's denial where the employee gained part of the required experience for the position while on the job with the employer, but the employer failed to articulate the difference in positions on the ETA 9089.

• Matter ofTelcordia Technologies, Inc., 2011-PER.~02631 (February 6, 2013) AILA Doc. No. 13020745

BALCA upheld the CO's denial, rejecting the 3-to- l argument and finding that one year of experience (with or without a degree) equals one year for SVP purposes, and a bachelor's degree equals two years for S VP purposes

• Rooted & Grounded Nurse1y, L.L.C., 2010-PER-00253 (March 11, 20 l I), AILA Doc. No. 11031465. BALCA assesses feasibility of training a U.S. worker. Nothing that the alien could train a U.S. worker, BALCA clarified that the regulations require a general showing that it is no longer feasible to train, not that it is no longer feasible for the employer to train.

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Multi-Position Notices • Matter of Oracle, (February 6, 2013) AILA Doc. No. 13020746

Offered Wage

BALCA held that although the use of a plural in the job title indicated that the NOF was for multiple positions, it did not give any contextual cues that would signify that the travel requirement only applied to some of the positions.

• Matter of Sherwin-Williams, 2012-PWD-00003 (February 19, 2013) AILA Doc. No. 13021900. BALCA upheld the Level IV wage noting that although the 2009 guidance requires DOL to exercise judgment when issuing PWDs there was no abuse of discretion in not lowering the wage where the position required 5 years of experience.

• Brien & Van Stiphout LLC formerly known as Krupin 0 'Brien, LLC., 2010-PER-00035 (January 03, 2011 ), AILA Doc. No. 110 I 0631.

BALCA discusses the NOF "offered wage" under 20 CFR 656.17(1)(7) The "offered wage" is the wage offered to the alien at the time the ETA 9089 is filed. BALCA rejected the argument that the NOF was sufficient where the employer raised the wage after posting to a rate above the NOF range.

• Washington Post, 20U~PER-02694 (October 17, 20l2)

Ability To Pay

Notice of Filing contained lower wage range that listed on the ET A 9089. Employer argued that the foreign workers wage at first fire should be the wages evaluated against that in the Notice ofFiling citing University of North Carolina, a pre-Perm decision. BALCA held that the discrepancy between the wage range offered to the U.S. workers on the NOT and the age range offer on fom1 9089 was fatal to the application and that it is clear that ET A intended 20 CFR 565. l ?(b )(7) to be interpreted as prohibiting the wages on the NOF from being less than that offered to the alien in the 9089.

• Continental Systems USA Inc., 2009wPER-00441 (April 07, 2011 ), AILA Doc. No. 11041831. In a case involving a consulting company where the ability to pay salaries largely depends on the generation of funds by the consultants, BALCA upheld the denial for failure to show sufficient funds to pay the alien's salary.

Business Necessity • La Cantina Toscana, 2009-PER-00237 (April 07, 2011 ), No. AILA Doc. No. 11041833.

BALCA finds no business necessity for 2-year experience requirement f(w cook. BALCA found the employer's "self-serving" letter failed to demonstrate that the 2-year experience requirement for the position of restaurant cook arose out of business necessity. Dissenting and concurring opinions included.

Alternative Job Requirements • Microsemi Corp., 2010-PER-675 (June 17, 2011 ).

An employer cannot be faulted when the instruction for ETA Form 9089 and the ETA Form 9089 had different listing requirements for Section H8-C and were inherently inconsistent. It would be fundamentally unfair to enforce this regulation (20 CFR § 656.11 (b)) where the denial resulted from the clear conflict betw{~en the ETA Form 9089 and the Form 9089 instructions.

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• Enterprise Business Solutions, Inc., 2010--PER-00444 (March 29, 2011), AILA Doc. No. J J 040467. BALCA vacated the denial, where the employee did not meet the minimum requirements ofa Bachelor's degree plus 12 months experience, but did meet the alternative requirements of a Bachelor's degree and no experi.::nce.

Alternative Mi111imum Requirements • Matter <>/General Electric Co., 2011-PER-02696 (Janua1y 22, 2013) AILA Doc. No. 13012442

BALCA reversed the denial, finding that CO ignored the employer's experience requirements stated in Item H-14 and incorrectly interpreted the alternative education requirements as alternative employment requirements.

• Matter of Cognizant Technology S'olutions US' Co17J., 2011--PER-01697 (November 29, 2012) AILA Doc. No. 12120345

BALCA reversed the denial because evidence demonstrated that the employer entered tha1 actual minimum requirements into the job order form, but that a deficient form caused those requirements to be converted.

• Matter qf Donna Ricco-FYC Apparel, 20l0-PERM359 (March 23, 2011) AILA Doc. No. 11302468. The Board upheld the CO's denial, finding the job's alternative requirements of 17 years of experience was not substantially equivalent to the primary requirements of a Bachelor's degree plus five years of experience.

• Matter o/Globalnet Management, 2009-PER-OOUO (August 6,2009) AILA Doc. No. 09101930. BALCA affirmed the PERM denial on the ground that the requirement of 14 years experience for an SVP 7 position significantly restricted the applicant pool and contravened the SVP requirement. The Employer's petition for en bane review was denied.

e Mi.mer q(Microsoji Corporation, 2011 ·-PER-02563 (October 16, 20 l 2) AILA Doc. No. l 2 l 02260. BALCA found that the alternate requirements of"3 years of experience for each year missing toward a 4 year degree" equals up to l 2 years of experience which was not substantially equivalent to a 88+6 months of experience.

Materiality of Omissions on the PERM Form • Matter of Prosofl Associates, Inc., 2011-PER-01209 (August 3, 2012), AILA Doc. No. 12080741.

BALCA found that the phrase, "!!iring Requirements: Drug Testing/Screening, Background Checks" constitutes an additional requirement and upheld the denial where it was listed on the SWA job order but not on the ETA Form 9089.

• Matter afIAC Search & Media, Inc., 2011-.PER-0()845 (May 2, 2012), AILA Doc. No. 12050352 BALCA reversed, finding that there was no regulatory violation where the prevailing wage listed on the ETA 9089 was lower than the PWD, and that a typographical error on its own does not provide a valid basis for denial.

• O'Connor Hc>spital, 2011-PER-00076 (January 24, 2012), AILA Doc. No. 12012562. BALCA held that although the employer failed to include the alien's relevant employment history on the ETA 9089, documentation confirming the employment was sent with the audit response and should have been considered by the CO.

• Matter of Nathan Liftauer Hospital, 2010-PER-01066 (August 16, 201 I), AILA Doc. No. I 1082960.

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BALCA vacates denial; finds omission on ETA 9089 haimless. BALCA held that where the employer failed to check the box in Section J-23 indicating that the beneficiary was employed with the employer, but the answer was provided in Sections K-6 and L-7, the error was harmless.

" Matter <d'Tarleton State Univ., 2010-PER- 00887, (June 20, 2011), AILA Doc. No. 11062367. BALCA says CO erred in finding university did not meet the definition of"employer". BALCA held that the CO's finding that the employer did not have a physical location but rather only a P.O. Box was clearly erroneous where Section H-1 included a mailbox number located at a building on the university campus.

• !lESO Electric, 2010-PER-00670 (April 21, 20 l 1 ), A !LA Doc. No. 11042541. BALCA remanded the case to the CO for reconsideration where the employer failed to check box M-l on the ETA 9089, which asks whether the application was completed by the employer, but provided the preparer's name and signature.

• Shastriji Pennsylvania Donuts Corp., 2010-PER-00437 (March 29, 201 l), AILA Doc. No. l 1040466. BALCA remanded finding that the CO failed to explain why the omission of the preparer's title, where the preparer's complete information was elsewhere on the form, and the omission of the skill level in Section F-4, were material.

• Steve's Bakery and Cuchifrito Corp., 2010-PER-00844 (March 09, 2011 ), AILA Doc. No. J 1031463. BALCA remands for materiality assessment of Section M-1. BALCA found that where the preparer signed and dated the certification block in Section M, remand is warranted for a determination as to why completion of Section M- l on Form 9089 is material in the review of a mailed-in application.

• Matter ofTLH Construction, 2010-PER-00688 (August 19, 2010) AILA Doc. No. !2102647 BALCA upholds denial where attorney failed to sign ETA 9089 in Audit Response. BALCA affirmed the denial where the attorney failed to sign the ETA 9089 submitted with the audit response, noting that the instructions provide ciear notice to the employer that the 9089 must be signed by attomey or agent.

Prevailing Wage • Maller <41sland Holdings LLC, 2013-PWD-00002 (December 3, 2013) AILA Doc. No. 13120449.

BALCA vacates supplemental prevailing wage determinations (PWDs) and the increased wage that they purport to impose because DOL regulations do not require an employer to comply with a PWD issued after the ETA Form 9142 has been approved and granted.

• Matter of General Anesthesia, 2013-PWD-00005 (January 28, 2014) AILA Doc. No. 14020644. BALCA Remands PWD, Says DOL Erred in Rejecting Employer's O*NET Code BALCA found that in rejecting the employer's O*NET title, the NPWC failed to adhere to the 2009 DOL guidance which emphasizes that the prevailing wage process requires the exercise of judgment and should not be implemented in an automated fashion.

o Matter ofSAP America, 2010-PER-01250 (April i 8, 2013) AILA Doc. No. 13041947. BALCA found that where the CO requested the prevailing wage request and the determination in an audit, the employer's f~iilure to provide the request was not a substantial failure to provide required doeumentation under 655.20(b).

o Matter q/Kohler Co., 2011-PER-00722 (June 14, 20 l2). AILA Doc. No.12061950.

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Limiting its holding to the facts of the case, BALCA applied the rationale in Superior Landscape and found that where the employer's advertised wage was 99.9997% of the prevailing wage, the statutory requirements were satisfied.

" Take Solutions inc., 2010-PER-00907 (April 28, 2011 ), AILA Doc. No. I I 042966. BALCA held that where the employer received more than one prevailing wage determination based on variations of the minimum job requirements (primary and alternative), the employer must abide by the higher wage.

"' Baily International of Atlanta hie., 2010-PER-00468 (April 19, 2011 ), AILA Doc. No. 11042030. BALCA says NOF with wage equal to 99.51 % of prevailing wage is insufficient. BALCA refused to apply Superior Landscape to round up the wage on the NOP that was 99.5 l % of the prevailing wage. ALJ Vittone concurred, but noted that the CO has the discretion to take a reasonable approach in cases like this.

• Matter o(Quadrille Wallpapers 2010-PER-00068 (December 15, 2010) AILA Doc. No. 10122060. BALCA found that the employer failed to comply with 20 CFR §656.40(c), where it filed the application after the prevailing wage expired, but failed to commence recruitment during the prevailing wage validity period.

• Matter of Emo1}1 University, 20U~PWD-0001(February27, 2012), AILA Doc. No. 12101956. Applying the code for the higher-paying of the two O*Net occupations, BALCA found that the assignment of a Level 3 wage for "Natural Sciences Managers" was consistent with the 2009 PWD Guidance and was not an abuse of discretion.

Advertising Requirements-Professional Journal • Discovery Networks Latin AmericaO Iberia, 20ll-PER~0003S (January 4, 2012), AILA Doc. No.

12.010562. BALCA held that the Wall Street Journal is a a newspaper of general circulation, not a professional journal, and an ad that was not nm on a Sunday cannot be used in lieu of the mandatory Sunday ads under 20 CFR 656. I 7(e)(l )(i).

• !Futuristics INC., 2010-PER-00631(April21, 2011), AILA Doc. No. 11042543. BALCA affirms denial, though CO was "arguably incorrect" constrained procedurally by 2(}

CFR 656.27(c)a.nd unable to consider new evidence submitted by the employer with its request for review, BALCA affirmed the CO's finding that computer magazine was not a professional journal.

• HSBC Bank U.S.A .. N.A., 2010-J>ER-00655 (April 18, 201 I), AILA Doc. No. l 1041937. BALCA says Wall Street Journal is not a professional journal. BALCA upheld the CO's Denial, finding that the Wall Street Journal, an authority on a wide variety of social, current event, and business topics, is a newspaper, not a professional journal for purposes of20 CFR 656. J 7(e)( I )(i)(B)( 4).

College and University Teachers-Recruitment o East Tennessee State University, 2010-PTtR-00038 (April 18, 201 I), AILA Doc. No. 10082464.

BALCA en bane panel says universities may recruit under basic process and choose the most qualified. The panel found, in cases involving college or university teaching positions, that the employer may select the most qualified applicant whether it employs basic recruitment under 20 CFR 656. l 7, or competitive recruitment under 656.18.

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Recruitment • Matter ofMicron Technology, 2011-PER-02193 (January 30, 2014) AILA Doc. No. 14020646.

BALCA held that 20 CFR 656. l 7(e)( l)(ii)(D) and (H) suggest, rather than require, how an employer can document college-based recruitment and that the documentation submitted provided all essential and specific details to inform interested U.S. applicants.

• Matier of DGN Technologies, 2011-PER-02935 (April 29, 2013) AILA Doc. No. 13043046. BALCA found that where an employer attestation in the recruitment report is submitted as evidence of recrnitment on the employer's website in lieu of dated screenshots, the attestation must be in affidavit form.

• Matter of Quantifi, Inc. 2010-PER- 00720 (May 12, 2011 ), AILA Doc. No. 1 I 051361. BALCA finds employer's recruitment report insufficient. BALCA found that the employer's recruitment report merged the reasons for rejecting the two applicants, and while the reasons for rejection may have been lawful, the report did not specify which grounds apply to which candidate.

• Frontline Consulting Serv., Inc., 2010-PER-00706 (April 08, 2011 ), AILA Doc. No. 11041943. BALCA upholds denial, finds recruitment report insufficient. BALCA found that where the recruitment report was signed only by the attorney, without indicating that the attorney is an appropriate representative under 656.10(b)(2)(ii), the employer failed to attest to the results of its recruitment.

Roaming Employees and Proper Filing • AMSOL Inc., 2008-INA-00112 (April 27, 2011), AILA Doc. No. 11042733.

BALCA vacated the denial, finding that employer presented full time, permanent, bona fide job opportunities and that the application listed the proper filing location even though the work site was unanticipated rather than fixed.

Adequacy of Andit Response

• Matter ofHeso Electrical, 2011-PERM-02630 (December !6, 2013) AILA Doc. No. 13121761. BALCA f(nmd that the motion to extend time to respond to the audit tolled denial until the CO ruled on the motion, and that the CO erred in relying solely on the fact that the motion had been made only two days before the due date to deny the extension.

• Matter of'Siemens Energy & Automation, 2010-Plm .. -01466 (November 7, 2013) AILA Doc. No. J 11J543.

BALCA upheld CO's denial, finding the employer failed to timely produce a copy of the PWD in the audit response, thus failing to produce "required documentation" that was specifically identified as evidence the employer was required to retain.

• Matier of APT-Advanced Polymer Technology, 2010-P.ER-01433 (September 13, 2013) AILA Doc. No. 13092240

BALCA denied certification, basing its decision in part on the fact that where erroneous was provided on the ETA 9089, the employer had an opportunity to provide an explanation in the audit response, but failed to do so.

• Maller of' Core Solutions, 2010-PER-01013 (August 22, 2011 ), AILA Doc. No. 11082961. BALCA says CO should have considered whether missing document was mere oversight. BALCA found that where a page of the employee referral program was included in the

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documents provided to Employer's counsel and was clearly intended to be included in the audit response, denial of certification was not warranted.

$ Matter of Washington Hospital Center, 2010-PER- 00746 (May 13, 2011), AILA Doc. No. l 1051664. BALCA remands, finds employer's failure to include PWD addendum was inadvertent. BALCA found that the CO abused his discretion in refusing to consider whether the absence of a prevai I ing wage a<ldendum was mere oversight as opposed to an inability or refusal to produce the document.

Verification of Sponsorship "' Matter of Pickering Valley Contractors; 2010-PER-01146 (August 23, 201 I), AfLA Doc. No.

11082962. BALCA on verification of sponsorship: finds DOL inconsistencies problematic. BALCA found that where the employer mails the ETA 9089, the signed statement under penalty of perjury certifying to conditions of employment by itself places the employer in full compliance with 20 CFR §656.10( c ).

• Matter ofA(fonso 's Mexican Food, 2011-PER-00218 (March 26, 2012). BALCA on verification of sponsorship: found that Employer had fully complied with 20 CFR §656. IO(c), and therefore, denial of ce1tlfication on this ground was improper. BALCA found that the most appropriate remedy was to remand this case to permit the CO to follow the procedures at Section §656.3!(b) to investigate fraud, the procedures at Section §656.20(d) (I) to issue a written request for information to verify the Employer's sponsorship, or to continue processing the Employer's application.

Medical Residents • Matter qfAlbert Einstein Medical Center, 2009-PER-00379 (November 21, 2011) AILA Doc. No.

I 1112265. Finding medical residencies \o be generally limited in time and not permanent, BALCA remanded to permit tl1': employers to demonstrate that each job otherwise fits the definition of permanent.

Professional or Non-Professional Position • Maaer o/Atlantic Landscape, 2011-PER-00023 (December 27, 2011). AILA Doc. No. 11122847.

BALCA found that although the employer did not intend to seek certification for a professional position, where the PWD indicates a professional position, the employer must proceed under the profossional recruitment standard.

Definition of College or University Teacher • Matter of Mercer University, 201l-Pirn-OOl62 (March 6, 2012). AILA Doc. No. 12030771.

Noting that there is no regulatory definition of college or university teacher, BALCA agreed with the employer that an individual need not only perform teaching duties to qualify for special recruitment and vacated the denial.

Reasons for Rei.£!:tion • Matter 1~( Privthi Info. Solutions, 2011-PKR-01112 (November 1, 2013). Al LA Doc. No. 13110446.

Noting that the list of factors set forth in the decision were not exhaustive, BALCA found that Dice.com is a job search website for IT professionals, not a "professional organization" for purposes of recruitment under 20 CFR §656.17( e)(J )(ii)(E).

• Matter of Twins, 2012-PER-00392 (November l, 2013) AILA Doc. No. 13 l l 0446

14

95

BALCA held that the letters the employer sent to U.S. applicants were insufficient, noting that there was no attempt to determine whether they could become qualified with reasonable on-the-job training and there was no proof that the applicants received the letters.

• Matter ofSe!ect International, Inc., 2011-PER-fJJ478 (September 19, 2012), AILA Doc. No. 12092044

BALCA held that where a resume showed a broad range of experience, training and education, the employer had a duty to investigate the applicant given its willingness to accept a "combination of education, training, or experience."

• Matter of JP Morgan Chase & Co., 2011-PER-01000(.July16, 2012) AILA Doc. No. 12071746 Citing pre-PERM case law, BALCA found that where there is no finding that the job requirements are unduly restrictive, the employer may reject job applicants who do not meet the minimum requirements without interview.

• Matter <~(Kennametal, Inc. 2010-PER-01512 (March 27, 2012). BALCA found that the employer improperly rejected several applicants without first conducting an interview or determining whether they would be qualified for the position after a reasonable period of on-the-job training.

• Matter of Simmons Audio Video 2010- PER-00167 (March 4, 2011) AILA Doc. No. I !030727. BALCA held that the use of"not qualified," without more, wa<> insufficient for the CO to make a proper determination under 20 CFR §656. I 7(g)(2) that the applicants were rejected for lawful job-related reasons.

180..Day Period for Filing • Matter of Industrial Steel Products, LLC., 2011-PER-00542 (.June 21, 2012) AILA Doc. No.

12062561 The panel rejected General Electric and Calvert Masomy and held that the 180-day time­period for filing the ET A 9089 is calculated based on the date the SEA job order is commenced, not the date it ends.

Efforts to Contact U.S. Applicants • Matter (lW. Alex Choi, CPA, PC, 2011-PER-029l6 (September 26, 2013) AILA Doc. No.13092703

!3ALCA upheld the CO's denial, noting that when lhe tracking information fi:>r interview invitations sent via certified mail revealed that the letters did not reach the applicants, the employer failed to make additional attempts to contact the applicants.

H2B 11Temporary Need" Regulations • Matter o,fMidwest Poured Foundations, 2013-TLN-00053 (June 18, 2013) AILA Doc. No. 13062400

Noting the employer began operations in September 20 I 2, BALCA vacated the denial, finding the employer established its need for 50 workers from April to December, with evidence that included invoices from September through December of2012.

!"EIN • Matter of Duane q[field Racing Stables, 2012-PJF.:R-00884 (February 25, 20 J 3) AILA Doc. No.

13022590. BALCA rejected the CO's position that the address listed on Section C of the ETA 9089 must match the employer's tax return address, finding it "hardly surprising" that a horse trainer would have more than one address .

., Matter of Edward J. 1Yerny, 2009-PER-00314 (July f 3, 2009) AILA Doc. No. 09 l 02061

15

96

Joint-Employer

BALCA affirms denial based on the fact that the employer, a domestic household, lacked a valid FEIN on the date of filing the labor certification.

• Matter of Int 'l Plant Services, 2013-TLN-00014 (December 21, 2012) AILA Doc. No. 13010854 BALCA found the employer was a "job contractor" under §655.4, noting that while the H-2Bs would be hired, paid, and fired by the employer, the record did not show that it, rather than the end-party, would supervise the work.

Right to Respond to NOIR • Matter (?(SNS Ente1prises, 2013-PED-00003 (September 24, 2013) AILA Doc. No. 13092540.

BALCA found that where the employer's counsel did not receive a copy of the NOIR within a period of time that would have allowed him to timely submit rebuttal evidence, the CO's revocation was an abuse of discretion that resulted in manifest injustice.

Presumption of Mail Delivery • Matter of VB Hospitality, 2012-PER-02487 (May 28, 2013) AILA Doc. No. 13052951.

Recruitment

BALCA held that the CO is not entitled to a presumption of delivery of mail sent by it absent proof of its mailing procedures and that even if there was a presumption, statements denying receipt and other circumstantial evidence effectively rebutted it.

• Matter of Dallas Morning News, 2011-PER-02302 (December 30, 2013) AILA Doc. No. 14010645. BALCA held the employer failed to demonstrate that it recruited for the position on its website in accordance with 20 CFR §656.17(e)(l)(ii)(B) where the website contained a "Careers" link that redirected users to the employer's profile on HotJobs .

., Matter of Palm City Palms, 2011-PER-00231(DecemberJ9, 20!3) AILA Doc. No. 13122049. BALCA held that the CO has the authority to direct an employer to obtain a new PWD during; supervised recruitment under 20 CFR §656.21 and to deny certification under 20 CFR §656.21(f) if the employer refuses to run a draft advertisement using the new PWD.

• Matter of.John Chance Land Surveys 2012-Pl~R-00048 (Febrnary 12, 2013) AILA Doc. No. l 3021290.

BALCA found that though the employer failed to provide a copy of the foreign worker's resume as requested, the CO erred in denying the case 16 days after instructions were issued because 20 CFR §656.21 (f) mandates 30 days.

Required Experience • Matter of Federal Home Loan Mortgage Corp., 2011-PER-02902 (February 10, 2014) AILA Doc.

No. 14021144.

J>rereguisites

BALCA reversed the CO's denial, finding the laid-off U.S. worker clearly lacked the required experience and skill in specified accounting and modeling programs based on the face of the worker's resume and the employer's ETA 9089.

• Matter of The Clariden School, 2011-PER-02857 (January 30, 2014) AILA Doc. No. 14020645. BALCA Says ETA 9089 Lacks "Free Form Space" for Clarif'.ying Eligibility BALCA held that the CO was unreasonable in insisting that the alien's holding of the required degree be disclosed on the 9089 where documents in the reconsideration motion showed that a bachelor's degree is a prerequi~site for a Montessori eertificate.

16

97

BALCA CASE LIST By: Allen E. Kaye

Matter of Pinellas Association for Retarded Children, 2011-PER-02969 (April 2, 2014) 2 Matter of University of Colorado at Denver and Health Sciences Center, 2011-PER-01807 (March 18, 2014) 3 Matter of Itek Construction, 2012-PER-00072 (March 7, 2014) 4 Matter of Intel C01poration, 2013-PER-03071(February20, 2014) 5 Matter of IBM Corp., 2011-PER-02760 (February 12, 2014) 6 Matter of Symantec C01p., 2011-PER-01856 (February 11, 2014) AILA Doc. No. 14021248. 7 Matter of Federal Home Loan Mortgage Corp., 2011-PER-02902 (February 10, 2014) AILA Doc. No. 14021144. 8 Matter of Micron Technology, 2011-PER-02193 (January 30, 2014) AILA Doc. No. 14020646. 9 Matter of General Anesthesia, 2013-PWD-00005 (January 28, 2014) AILA Doc. No. 14020644. 10 Matter of The Clariden School, 2011-PER-02857 (January 30, 2014) AILA Doc. No. 14020645. 11 Matter of Maxim Integrated Products, 2011-PER-02310 (January 6, 2014) AILA Doc. No. 14011047. 12 Matter of Dallas Morning News, 2011-PER-02302 (December 30, 2013) AILA Doc. No. 14010645. 13 Matter of Palm City Palms, 2011-PER-00231(December19, 2013) AILA Doc. No. 13122049. 14 Matter of Heso Electrical, 2011-PER-02630 (December 16, 2013) AILA Doc. No. 13121761. 15 Vermillion Ranch Limited Partnership, 2014-TLC-00002 (December 5, 2013) AILA Doc. No. 13120608. 16 Matter of Island Holdings LLC, 2013-PWD-00002 (December 3, 2013) AILA Doc. No. 13120449. 17 Matter of Siemens Energy & Automation, 2010-PER-01466 (November 7, 2013) AILA Doc. No. 3111543. 18 Matter of Twins, 2012-PER-00392 (November 1, 2013) AILA Doc. No. 13110446. 19 Matter of Privthi Info. Solutions, 2011-PER-01112 (November 1, 2013) AILA Doc. No. 13110448. 20 Matter of Saran, 2011-PER-01939 (August 27, 2013) AILA Doc. No. 13093062. 21 Matter of W Alex Choi, CPA, PC, (September 26, 2013) AILA Doc. No.13092703 22 Matter of SNS Enterprises, Inc., (September 24, 2013) AILA Doc. No. 13092540 23 Matter of IBM Corporation, (August 27, 2013) AILA Doc. No. 13082941 24 Matter of Saran Indian Cuisine, (August 7, 2013) AILA Doc. No. 13093062 25 Matter of Redyk Travel, (August 8, 2013) AILA Doc. No. 13082146 26 Matter ofChabad Lubavitch, Center (July 29, 2013) AILA Doc. No. 13073040 27 Matter of Seven Oaks Landscape, (July 26, 2013) AILA Doc. No. 13072941 28 Matter ofSiemen 's, 2011-PER-00955 (July 23, 2013) AILA Doc. No. 13072542 29 Matter of Midwest Poured Foundations, (July 18, 2013) AILA Doc. No. 13062400 30 Matter of Edward J Tierny, 2009-PER-00314 (July 13, 2009) AILA Doc. No. 09102061 31 Matter or Architectural Stone Accents, (July 3, 2013) AILA Doc. No. 13070551 32 Matter of Riverwalk, (July 03, 2013) AILA Doc. No. 13071241 33 Matter of NP Corporation, 2012-PER-00280 (June 18, 2013) 34 Matter of Oracle USA, Inc., 2011-PER-01343 (June 18, 2013) 35 Matter of Juniper Networks, 2011-PER-02403 (June 12, 2013) 36 Matter of Ernst & Young LLP, 2011-PER-02027 (May 31, 2013) 37 Matter of VB Hospitality, (May 28, 2013) AILA Doc. No. 13052951 38 Matter of Sushi Shogun, 2011-PER-02677 (May 28, 2013) 39 Matter of Yahoo!, 2011-PER-02357 (May 20, 2013) 40 Matter of Bearingpoint Inc., 2011-PER-01829 (May15, 2013) 41 Matter of Melissa's Bridal Shop, 2011-PER-01082 (May 7, 2013) 42 Matter of Data-Core Systems, Inc., 2010-PER-01459 (May 7, 2013) 43 Matter of American Express Travel Related Services, 2001-PER-02231 (May 7, 2013) 44 Matter of A Richmond, Inc., 2011-PER-00818 (May 7, 2013) 45 Matter of Jesus Baptist Church LA, 2012-PER-01166 (April 30, 2013) 46 Matter of Cisco Systems, (April 26, 2013) AILA Doc. No. 13043041 47 Matter of Oracle Inc., 2011-PER-00963 (April 24, 2013) AILA Doc. No. 13042647 48 Matter of Microsoft, (April 22, 2013) AILA Doc. No. I3042242 49 Matter of SAP America, 2010-PER-01250 (April 19, 2013) AILA Doc. No. 13041947 50 Matter of Cisco Systems Inc., 2011-PER-02900 (April 16, 2013) 51 Matter of DGN Technologies, (April 13, 2013) AILA Doc. No. 13043046 52 Matter of Honda Kaihatsu Kogyo, USA, Inc., 2012-PER-00981 (April 10, 2013) 53 Matter of Mike S. Lee & Associates Inc., 2012-PER-00205 (April 8, 2013) 54 Matter of Dr. Robert Maiorino, 2011-PER-02113 (April 8, 2013) 55 Matter of Cabanas Adult Care Home, 2011-PER-02348 (April 5, 2013) 56 Matter ofSalesforce.com, 2011-PER-02886 (April 5, 2013) 57 Matter of Logan Media, 2012-PER-01134 (April 5, 2013) 58 Matter of Mitsubishi Imaging, 2011-PER-02913 (April 5, 2013) 59 Matter of Wal-Mart, (March 19, 2013) AILA Doc. No. 13032041

98

60 Matter of Microsoft Corp., (March 12, 2013) AILA Doc. No. 130442242 61 Matter of Cognizant Technology Solutions US Corp., 2011-PER-01595 (March 12, 2013) 62 Matter of Duane Offield Racing Stables, (February 25, 2013) AILA Doc. No. 13022590 63 Matter of Sherwin-Williams, (February 19, 2013) AILA Doc. No. 13021900 64 Matter of John Chance Land Surveys, (February 12, 2013) AILA Doc. No. 13021290 65 Matter of Capitol Building Services, (February 12, 2013) AILA Doc. No. 13021291 66 Matter ofTelcordia Technologies, (February 06, 2013) AILA Doc. No. 13020745 67 Matter or Oracle, (February 6, 2013) AILA Doc. No. 13020746 68 Matter ofTelcordia Techologies, Inc., 2011-PER-02631 (February 6, 2013) AILA Doc. No. 13020745 69 Matter of General Electric, Co., 2011-PER-02696 (January 22, 2013) AILA Doc. No. 13012442 70 Matter of McHugh Care Home, 2011-PER-01525 (December 27, 2012)

Prepared by:

Allen E. Kaye

LAW OFFICES OF ALLENE. KA YE, P.C. 111 Broadway, Suite 1304 New York, New York 10006 Tel: (212) 964-5858 Fax: (212) 608-3734

The author wishes to thanks Elizabeth David-Dembrowsky for her assistance in revising and updating this list.

(04/23/2014)

99

U,S. Department of Labor Board of Alien Labor Certification Appeals 800 K Street, NW, Suite 400-N Washington, DC 20001-8002

BALCA Case No.: ETA Case No.:

Jn the Matter q/

(202) 693-7300 (202) 693-7365 [FAX)

201 l--PER-00955 A-08129-49929

SIEMENS WATER TECHNOLOGIES COUP., Employer

on behalf of

MARTIN ARNOLD SMITH, Alien.

Certifying Officer: William Carlson

Appearances:

Atlanta National Processing Center

Timothy M. Nelson, Esq. Fragomen, Del Rey, Bernsen & Loewy LLP Malm.van, NJ F'or rhe Fn1plt~yer

Gary M. Bu fl~ Associate Solicitor Office of the Solicitor

Issue Date: 23 .July 2013

Division of Employment and Training Legal Services Washington. DC

Befrwe:

For the Cert[fj1ing <?/fleer

McGrath, Geraghty, Calianos Administrative Law Judges

TIMOTHY .J. MCGRATH Administrative Law Judge

DECISION AND ORDER AFFIRMING DENIAL OF CERTIFICATION

This matter arises under Section 212(a)(5)(A) of the Immigration and Nationality Act. 8

U.S.C. § l 182(a)(5)(A), and the "PERM" regulations found at Title 20. Part 656 of the Code of

Federal Regulations ("C.F.R."). For the reasons set forth below. we aflirrn the denial of the

Employer's Application for Permanent Employment Certification.

100

BACKGROUND

On August 8, 2008, the Certifying Officer ("CO") accepted for filing the Employer's

Application for Permanent Employment Certification for the position of "Field Service

Engineer." (AF l, 110).1 On March 17, 2009, the CO sent the Employer an Audit Notification

Letter requesting that the Employer provide certain information in accordance with 20 C.F.R.

§ 656.20. (AF 105-08). On April 17, 2009, the Employer responded to the Audit, providing

explanations to the CO's specific audit reasons and attaching documentation of its various

recruitment steps. (AF 12-104).

On September 2, 2010, the CO denied the application. (AF J0-1 l). The Employer's

response to the audit request explained the primary worksite address in the ETA Form 9089 is

the same as the foreign worker's address because the job opportunity affords the Field Service

Engineer to work from home and travel to various client sites as needed. (AF 10). The CO

concluded, after reviewing the documentation, the employer did not offer the condition to work

from home to U.S. workers. (AF !O). As a result, the CO denied the application pursuant to 20

C.F.H. § 656.17(f)(7), which states that adverfisements must not "contain wages or terms and

conditions of employment that are less frivorable than those offered to the alien," and 20 C.F.R.

§ 656. !O(c)(8), which requires employers to attest ''[t]he job opportunity has been and is clearly

open to any U.S. worker." (AF l 0).

On September 29, 20 I 0, the Employer filed a Request for Reconsideration. (AF 2-9).

The Employer argued there is no regulation that requires advertisements to indicate that the

geographic location is a home office. (AF 4). The Employer relied on the minutes from the

Department of Labor's ("DOL's") March l 5, 2007 Stakeholders Liaison Meeting to support its

position that the recruitment was properly conducted based on the worksite address indicated on

the ETA Form 9089. (AF 4). Additionally, the Employer stated it complied with 20 C.F.R. §

656.17({) because the ad ''~iLcl._[lot._co11tai11 terms and conditions of employment that arc less

favorable than those offered to the alien." (AF 5) (emphasis in original). It concluded "there is

no regulatory prohibition from using a home address in recruitment efforts." (AF 5).

On March 25, 20 I J, the CO denied t·econsideration and forwarded the case to the Board

of Alien Labor Certification Appeals ("BALCA") for adrninistrativc review. (AF I). The CO

1 In this decision, AF is an abbreviation for Appeal File.

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101

upheld his denial under 20 C.F.R. §§ 656. I 0 and 656. l 7(t)(7), stating; "Not informing U.S.

workers they would work from home, ralher than from employer's headquarters or offices,

artificially excludes potentially qualified U.S. applicants from applying for the job opportunity."

(AF l).

On May 25, 20 l 1, BALCA filed a Notice of Docketing, and on June 8, 2011. the

Employer submitted its Statement of Intent to Proceed and its Statement of Position. Its

Statement of Position reiterated its arguments made on reconsideration. On March 26, 2013. this

Panel issued an Order Requiring Certification on Mootness. On April 12, 20 l 3, in response to

the Order, the Employer certified that the job identified in the application is still open and

available on the same terms and that the alien identified in the application remains ready, willing,

and able to fill the position.

DISCUSSION

PERM is an attestation-based program. 20 C.F.R. § 656.10( c ). Among other attestations.

an employer must attest that the job opportunity listed in the application for permanent

employmenl certification has been and is clearly open to U.S. workers. 20 C.F.R

§ 656. l O(c)(8). Accordingly, an employer filing an application for permanent alien labor

certification is required to conduct certain recruitment steps and make a good~t[1ith cncirt to

recruit U.S. workers prior to filing its application. Advertisements placed as part of the

recruitmenl process rn11s1 meet cer1ain content requirements as outlined in 20 C.F.R. § 656.17(f).

For instance, the advertisements must "[n]ot contain wages or terms and conditions of

employment that are less favorable than those offered to the alien." 20 C.F.R. § 656.l7(f)(7).

Additionally, advertisements must ''indicate the geographic area of employment with enough

specificity to apprise applicants of any travel requirements and where applicants will likely have

to reside to perform the job opportunity." 20 C.F.R. § 656. 17(t)(4).

The following response to a Frequently Asked Question ("FAQ") on the Office of

Foreign Labor Certification's website clarifies what geogrnphic information needs to be included

in advertisements:

Does the job location address need to be included in the advertisement?

No, the address does not need to be included. However. advertisements must indicate the geographic area of employment with enough specificity to apprise

,., - .) -

102

applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity. Employers arc not required to specify the job site, unless the job site is unclear; for example, if applicants must respond ro a location other than the job site (e.g., company headquarters in another state) or if the employer has multiple job sites.

OFLC Frequently Asked Questions and Answers, http://www.forcignlaborccrt.doleta.gov

/faqsanswcrs.cfm (last visited June 26, 2013).

In the Employer's ETA Form 9089, Section H.l-2, the primary worksite for the job

opportunity was in The Woodlands, Texas. (AF 110). The Alien's street address in Section J

was the same as that listed fix the primary worksite. (AF l l 3). In the Audit Request the CO

required a detailed explanation indicating the reason the foreign worker currently resides with

the employer. (AF 107). Jn response, the Employer explained the address listed in Section H. l-

2 (primary worksite) is the alien's private residence and the applicant works from his residence

and travels to various client sites as needed. (AF l 2). The Employer also submitted its

recruitment materials with its audit response, all or which listed Houston, Texas as the location

for the job opportunity. (See AF 62-102).

!'he Employer argues that it was not rcqui1·cd to indicate in its adveniscments the location

was a honie office. l.n support of its posilio11, the Employer provided a copy of the minutes from

the DOL's March 15, 2007 Stakeholders Liaison Meeting, which state in relevant part:

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.

ll the 9089 fhrm shows the worksite at a designated location other than headquarters, the PWD and recruitment would be for the worksite. AJLA note: this issue essentially requires a strategy decision. The PERM.hrm can state that the worksite is the home (dfice, in which case the PWD and recruitment can befor the area (d' fhe home qf!ice, bu! the fact lhllt the ·worksife is the same as the fc)reign national 's home address will be picked up l~y the PERM .system and the case will lik.e~v be audited. This can then be addressed in the audit re.sponse and should not be a problem, tl the case is ofherwise approvable. Alternativelv. the P ERMfin·m can state that the worksile is the headquarters qffrce. but then the PWD and recruitment must be done/hr that location

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103

21. For purposes of completing ETA-9089, if an employee works frorn horne, what address should be identified in H. l and H.2 --the actual home address of the employee or the address of the employer's headquarters or office from which the employee is based/paid?

Please see answer to number 19 above.

(AF 2 l-22). The Employer's reliance on these minutes is misplaced. The minutes demonstrate

that the Employer did not err in conducting its recruitment in the area where the alien resides or

by listing the alien's address as the primary work site in Section H. l-2 of the ETA Form 9089.

However. the meeting minutes are silent as to what geographic location should be included in

advertisements where the applicant would work from home. These minutes provide no guidance

on the content of the advertisements.

We find that the geographic location listed on the advertisements, "Houston, TX," represents

a condition of employment that is less favorable than that offered Lo the alien. An applicant reading

the advertisements would be under the impression that he or she was restricted to working in

Houston. fexas fn contrast, the alien was given the option 10 work from his residence,. which did

not necessarily have to be in lfouston, and which greatly expanded the potential geographic location

of employment. Listing the location as Houston, Texas suggested to potential U.S. applicants that

the job location was less flexible than it actually was. Sec: JDA S<?fiware, Im:., 20 I l-PER-02661.

PDF at 2 (Sept. 27, 2012). There is no indication that the job has to be perfrmned specifically in

Houston. In fact, the Employer indicated that il has customers throughout North America and the

position requires both domestic and international travel. (AF 40-41, 52-53). This suggests that the

geographic location of the job opportunity was not as restrictive as the Employer led potential

applicants lO believe. Juniper Networks, 20 l l -PER-0084 l, PDF at 3 (Sept. 20, 2012). It appears

that the only reason Houston, Texas was advertised as the geographic location is because that is

where the alien was currently residing. Id. We find that the Employer's advertisement was unduly

restrictive, misleading, and could have prevented potential U.S. applicants from applying fix the job

opportunity. Id; .JDA Sofiware, Inc .. 2011-PER-0266 l at 2.:'

Alfhough not cited by the CO, we note the geographic location in the advcrtisemenls also violates Section 656. J 7(1)(3) and ( 4 ), as it is not specific enough to apprise apt>licants of where they would have to reside lo perform

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104

Based on the foregoing, we affirm the CO's denial of certification pursuant to 20 C.F.R. §§

656. I O(c) and 656.17(()(7), because the location, Houston, Texas, in the Employer's advertisements

represented a condition of employment that was less favorable than that offered to the alien.

ORDER

rr IS ORDl~RED that the denial of labor certification rn this matter is hereby

AFFIRMED.

Boston, MA

For the Panel:

Oigitflfly Si\)l){id by llMOTHY MCGRATH

DN: CN,T/MOTHY MCGHATH. QUto:ADMU~jSTRATlVE LAW JUDGE,

O=Offite of Ad'.mlriislr<ilivo L::iw ,Jtidgc.s. l-=Ooslon. S=Mll. C=US

Lccauon: fJo&lon MA

TIMOTHY J. MCGRATH Administrative Law Judge

-----·-·--··~·--·--·-----

the job. Applicants do not appear to be reqL1ired to reside in or around Houston, as suggested by !he advertisements, and they can work from wherever their residence is localed. Staling !hat the location is Houston, Texas is not specific enough to apprise applicants of where they could reside. Furthermore, the Employe1·'s n~cruilrnent

documentation did not indicate to potential applicants that the job requires travel which, as indicated in the Employer's audit response, is an important component of the job. The Employer's failure to include its travel requirements in its advertisements also violates Section 656. l 7(1)(3) and (4).

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105

NOTICK OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Order will become !he final decision of the Secretary unless within twenty days from the date of service a party petitions for review by the full Board. Such review is not favored and ordinarily will not be granted except (I) when full Board consideration is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance. Petitions must be filed with:

Chief Docket Clerk Office of Administrative Law Judges Board of Alien Labor Certification Appeals 800 K Street NW Suite 400 Washington, DC 20001-8002

Copies of the petition musl also be served on other parties and should be accompanied by a written statement setting fclrth the date and manner of service. The petition shall specify the basis for requesting Ji.ill Board review with supporting authority, if any, and shall not exceed five double-spaced pages. Responses, if any, shall be filed within ten days of service of the petition, and shall not exceed five double-spaced pages. Upon the granting of a petition the Board may order briefs.

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106

U,~. Department of labor Board of Alien Labor Certification Appeals 800 K Street, NW, Suite 400-N Washington, DC 20001-8002

BALCA Case No.: ETA Case No.:

Jn the .Matter of

(202) 693-7300 {202) 693-7365 (FAX)

2011-PER-01807 A-08296-9844 7

UNIVERSITY OF COLORADO AT DENVER AND HEALTH SCIENCES CENTER,

Employer

on behalf of

BOLORMAA BEGZSUREN, Alien.

Ce1tifying Officer: William Carlson Atlanta National Processing Center

Appearances: Elizabeth J. Bedient, prose For the Emplqyer

Gary M. Buff, Associate Solicitor Matthew Bernt, Attorney Office of the Solicitor

Issue Date: 18 March 2014

Division of Employment and Training Legal Services Washington, DC

Before:

For the Cert!/j'ing Officer

Geraghty, Calianos, McGrath Administrative Law Judges

COLLEEN A. GERAGHTY Administrative Law Judge

DECISION AND ORDER AFFIRMING DENIAL OF CERTIFICATION

This matter arises under Section 212(a)(5)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1 l82(a)(5)(A), and the "PERM" regulations found at Title 20, Part 656 of the Code of

107

Federal Regulations ("C.F.R."). For the reasons set forth below, we affirm the denial of the Employer's Application for Permanent Employment Certification.

BACKGROUND

On October 29, 2008, the Certifying Officer ("CO") accepted for filing the Employer's Application for Permanent Employment Certification for the position of "Grants and Contracts Coordinator." (AF I, 175). 1 On June 26, 2009, the CO issued an Audit Notification, and on July 23., 2009, the Employer responded to the Audit. (AF 123-73).

On December 9, 20 l 0, t e CO denied the a lication for numerous reasons, including t ' · . . C I of

t~~ g~.g~tMnity. (AF 115-18). Tl~~!!t~~L!!!,~~--"af!1 other unan 1c1p~te l~ sites in th~ v-S:~.!m1~Jh.wimm::x .. ~£tL9.Jllil,,Q_~aJlL.!l'1! a~~~Ji.2U..2f~..§-9~~(4) & 656.17(1)(4). (AF 116}~-- .

On January 5, 2011, the Employer submitted a request for reconsideration. (AF 3-1 l 4 ). The Employer stated that it does not anticipate that the job would require an applicant to work in any location other than the primary worksite listed in Section H.1 (1380 Lawrence Street, Denver CO 80202). The Employer explained that it added the language "and other unanticipated job sites in the U.S." to protect the validity of its application in the unlikely event that the actual street address should change. The Employer is building new facilities on the Downtown Denver campus and the Anschutz Medical. campus in Aurora, and the phrase was used in case the Dean's Office of the School of Education and Hurnan Development moved to a different fa.ci!lty on campus, The Employer stated that language was not a reforence to a travel requirement, and because it did not anticipate that an employee would be required to travel or reside in any other location, it did not include such language in its recruitment materials.

On June 17, 201 l, the CO fmwarded the case to BALCA. (AF l). On October 14, 2011, BALCA issued a Notice of Docketing. The Employer filed a Statement of Intent to Proceed on October 25, 20 I I, and an appellate brief on November 22, 20 l l, reiterating its argument made on reconsideration. The CO did not file a Statement of Position, but requested the denial be affirmed for the reasons set forth in the denial and transmittal letters.

On December 27, 2013, in response to this Panel's Order Requiring Certification on Mootness, the Employer certified that the job identified on the PERM application is still open and available and that the alien identified in the PERM application remains ready, willing, and able to fill the position.

DISCUSSION

The PERM regulations require an employer filing an application for permanent labor certification to provide notice of the filing of the application to the employer's employees. 20

1 In this decision, AF is an abbreviation for Appeal File.

2 Because we affirm denial based on the NOF violation, we need not discuss the other reasons provided by the CO.

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C.F.R. § 656. IO(d)(l). This is done by posted notice, for at least IO consecutive business days, at the facility or location of the employment. 20 C.F .R. § 656. IO(d)(l )(ii). ·~~~µJati(?ns

( f~£~.~f:~.lbt,~~~m,~~1Ml~!l~,d,m-ti§~Jl~~iant 8 tq,.~~.!12,,.,~56.17,~f)'., .. 20 C.F.R. § 656 .. 10(d)(4). In pertinent part, Section 656.!7(~(4) requires ' that the noti~il'drcate the geographic area of employment with enough spec1fic1ty to apprise ~ applicants of any travel requirements and where applicants will likely have to reside to perform \ the job opportunity." The dual purpose of the Notice of Filing requirement is to fulfill the CO's \obligation to receive information about the filing and to inform potential applicants about the job ~pportunity. Alexandria Granite & Marble, 2009-PER-373, PDF at 4 (May 26, 2010).

In the Employer's ETA Form 9089, the primary worksite was listed as 1380 Lawrence Street, Denver, Colorado and "other unanticipated job sites in the U.S." (AF 175). In the Employer's Notice of Filing, the Employer identified the location of employment as "Denver, Colorado." (AF 143). The CO denied the application because by not including the language ''other unanticipated job sites in the U.S.," the Employer failed to apprise potential applicants of any travel requirements or where they would likely have to reside for the position.

The Employer argues that the language "and other unanticipated job sites in the U.S." did not constitute a travel requirement. It explained that the University of Colorado Denver campus is expanding and new facilities are being constructed, and the Employer included the reference to unanticipated job sites to protect the application and the alien beneficiary in the event that the Dean's Office moved to another facility on campus and the actual street address identified on the ETA Form 9089 changed. However, on the face of the application the Employer included a travel requirement that was not included on the Employer's recruitment material, and the CO could not have known the Employer's reason f()r including such language on the ETA Form 9089 without further investigation. Even though the geographic location of a job opportunity may be obvious in the context of the particular employer's business, it is not administratively feasible for the CO to investigate the circumstances of each applicant's business. Accordingly,

t , ~s denia!J_....or f~'ailurt? to inc~:~*l~~~;.~~!!!L;!f!~~j~~~!!,,!..~~"~2£~~~~arranted pursuant ~o ... ~ct19n~ . .. ~,).1 t~•J\'TJ. ~@~~{:#;~~""*"~~-· ••••

The Employer argued that: there was no space on the ETA Form 9089 for an explanation of why it included the language "and other unanticipated job sites in the U.S." for the primary worksite. However, in Section H.l, "Address 2," the Employer could have written "or other street address within the University of Colorado's Denver campus" or similar language, rather than "and other unanticipated job sites in the U.S." which connotes a travel requirement. Furthermore, the Employer simply could have included the language "other unanticipated job sites in the U.S." on its recruitment materials to prevent denial under Section 656. J 7(f)(4).

Although the Employer provided an explanation on reconsideration for why it included such language in the ETA Form 9089 but not in its recruitment materials, it did not provide any evidence to support its explanation, such as evidence demonstrating that new facilities were being constructed on campus. See Jalwb Mueller <?f America, Inc., 2010-PER-01069, PDF at 5 (citing Your Employment Service, Inc., 2009-PER-OO 151 (Oct. 30, 2009)) ("The Board has long held that under the PERM regulations the Employer bears the burden to establish eligibility for

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·"

labor certification. An Employer's mere statement, standing alone, is insufficient to meet this burden.").

While we note that denial in this matter may appear harsh, PERM is an attestation based program that can only be maintained by strictly following the Jetter of the law. PERM regulations were designed to favor administrative efficiency over dialogue in order to better serve the public interest overall, given the resources available to administer the program. HealthAmerica, 2006-PER-00001, slip op. at 19 (July 18, 2006) (en bane). Accordingly, we affinn denial because the Employer's NOF did not contain the phrase "and other unanticipated job sites in the U.S." which was included in the ETA Form 9089, in violation of Sections 656. IO(d)(4) and 656.I7(t)(4).

ORDER

It is ORDERED that the denial of labor certification in this matter is hereby AFFIRMED.

SO ORDERED.

Boston, MA

For the Panel:

Digitally <ignod try Colleen Geraghty ON: CN«>>lloenGoraghly,

OU~Adminlsttalilll) L8w ,JL'dge, Qi.:Offioo or Admlnistmtlv&: Law .fudge$, t"'Bo$1:on,

S•MA. C•US Location; Boi:iton MA

COLLEEN A. GERAGHTY Administrative Law Judge

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NOTICE OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Order will become the final decision of the Secretary unless within twenty days from the date of service a party petitions for review by the full Board. Such review is not favored and ordinarily will not

be granted except ( l) when full Board consideration is necessary to secure or maintain unifo11nity of its decisions, or (2) when the proceeding involves a question of exceptional importance. Petitions must be filed with:

Chief Docket Clerk Office of Administrative Law Judges Board of Alien Labor Certification Appeals 800 K Street, NW Suite 400 Washington, DC 20001-8002

Copies of the petition must also be served on other parties and should be accompanied by a written statement setting forth the date and manner of service. The petition shall specify the

basis for requesting full Board review with supporting authority, if any, and shall not exceed five double-spaced pages. Responses, if any, shall be filed within ten days of service of the petition,

and shall not exceed five double-spaced pages. Upon the granting of a petition the Board may order briefs.

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U.S. Department of labor Board of Alien Labor Certification Appeals 800 K Street, NW, Suite 400-N Washington, DC 20001-8002

BALCA Case No.: ETA Case No.:

ln the Matter ~f

(202) 693-7300 (202) 693-7365 {FAX)

2011-PER-02969 A-09036-26164

Issue Date: 02 April 2014

PINELLAS ASSOCIATION FOR RETARDED CHILDREN, Employer

on behalf of

MASAYO NAKAMURA, Alien.

Certifying Officer: William Carlson Atlanta National Processing Center

Appearances: Dimitar R. Michailov, Esq.

Before:

Capitol Immigration Law Group PLLC Bethesda, MD li'or the Employer

Gary M. Buff, Associate Solicitor Office of the Solicitor Division of Employment and Training Legal Services Washington, DC For the Certffying Officer

Geraghty, Calianos, McGrath Administrative Law Judges

COLLEEN A. GERAGHTY Administrative Law Judge

DECISION AND ORDER REVERSING DENIAL OF CERTIFICATION

This matter arises under Section 212(a)(5)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1 l82(a)(5)(A), and the "PERM" regulations found at Title 20, Part 656 of the Code of

112

-t· Federal Regulations ("C.F.R."). For the reasons set forth below, we reverse the denial of the Employer's Application for Permanent Employment Certification.

BACKGROUND

On February 24, 2009, the Certifying Officer ("CO") accepted for filing the Employer's Application for Permanent Employment Certification for the position of "Assistant Accountant." (AF l, 87). 1 On December 7, 2009, the CO sent the Employer an Audit Notification Letter, requiring the Employer to provide documentation establishing that the foreign worker had knowledge of Med Waiver, ICF/OD, EDI, and MIP Fund at the time of his hire. (AF 82-84). On December 23, 2009, the Employer responded to the Audit and attached a Personal Statement from the foreign worker stating that she had the required knowledge for the position. (AF 37-81 ).

On February 25, 201 I, the CO issued a denial letter, denying the application because the Employer failed to provide sufficient evidence beyond the foreign worker's personal statement, that she acquired knowledge of Med Waiver, ICF/00, EDI, and MIP Fund at the time of hire. (AF 35~36). The CO cited 20 C.F.R. § 656.20(b) as authority for denial, which states "a substantial failure by the employer to provide required documentation will result in the application being denied." (AF 36).

On March 22, 201 l, the Employer requested reconsideration of the denial, arguing that the foreign worker's Personal Statement, signed under the penalty of perjury, was sufficient documentation. (AF 2~34). The Employer additionally submitted a letter signed by the Employer's Comptroller confirrning at the time of hire the foreign worker met the job posting requirements. (AF 3).

On September 9, 2011, the CO fo1warded the case to BALCA. (AF I). In the CO's transmittal letter, he slated that the Employer did not provide a notarized affidavit, certifications, licenses, or any other substantive proof that the foreign worker had obtained and had utilized the Employer's specific knowledge requirements at the time of hire. He found that the Employer's mere assertion does not establish the necessary qualifications. He upheld his denial pursuant to 20 C.F.R. § 656.20(b).

On January 5, 2012, BALCA issued a Notice of Docketing. The Employer filed a Statement ofintent to Proceed on January 18, 2012. The Employer filed a Position Statement on February 16, 20 I 2, expanding upon its arguments made on reconsideration. The CO did not file a brief. On January 6, 2014, in response to this Panel's Order Requiring Certification on Mootness, the Employer certified that the job identified on the PERM application is still open and available and that the alien identified in the PERM application remains ready, willing, and able to fill the position.

1 In this decision, AF is an abbreviation for Appeal File.

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DISCUSSION

The PERM regulations require an employer seeking to apply for permanent labor certification on behalf of an alien to file a complete ETA Fonn 9089. 20 C.F.R. § 656. I 7(a). The requirements for the job opportunity listed in an employer's ETA Form 9089 "must represent the employer's actual minimum requirements for the job opportunity." 20 C.F.R. § 656. l7(i)(I). If a foreign worker is currently employed by his sponsoring employer, in order to determine whether the job requirements listed in the application represent the actual minimum requirements, the CO "will review the training and experience possessed by the alien beneficiary at the time of hiring by the employer." 20 C.F.R. § 656. I 7(i)(3). The employer cannot require potential applicants to have more experience than that of the alien at the time of his hire. Id

Here, the Employer's application indicated that the job opportunity required an Associate's degree in Accounting Technology and "[k]nowledge of programming, communications, operations & system computerization; Med Waiver & ICF/DD; EDI; MIP Fund." (AF 87-88). The ETA Form 9089 stated that the foreign worker, Masayo Nakamura, who currently is employed by the Employer, has the required Associate's degree in Accounting Technology. (AF 9 l ). '1'i#rffilMwe1~a8~i~en.~~e.tlli~ruM~aJwm.1~~Y ~~~D~~~ (SeeAF9I-93).

As a result, the CO requested that the Employer on audit "provide documentation to support that the foreign worker met the requirements [of knowledge in Med Waiver & ICF/DD; EDT; MIP Fund] at the time of hire." (AF 84). In response to the Audit the Employer submitted the fo!Jo,ving letter signed by the foreign worker:

I self-studied to acquire knowledge of Med Waiver, also called the Home and Community Based Waiver, which is a funding source. It is designed to provide the Developmental Disabilities Program (DDP) clients who need institutional level care, adequate support to be able to remain in the home. 1 atso learned Intermediate Care Facilities for the Developmentally Disabled (ICF/DD), Electronic Data Interchange (EDI), and MIP Fund-Accounting non-profit software before l applied for a position at Pinellas Association for Retarded Children (PARC) for the purpose of working for medical accounting related job in Florida and I knew these skills were very important.

(AF 61).

Additionally, the Employer on reconsideration submitted a letter in which it confirmed that at the time of hire, Ms. Nakamura met the requirements for the job opportunity of Assistant Accountant. (AF 6). The Employer indicated that Ms. Nakamura demonstrated her knowledge of all skills required at the interview and that Ms. Nakamura "self-studied" to acquire knowledge of Med Waiver, ICF/DD, EDI and MIP Fund.2 (AF 6).

2 Although pursuant to 20 C.F.R. § 656.24(g) this letter submitted on reconsideration would typically be barred from evidence becatise the Employer had an opportunity to submit the letter at the time of the audit, the CO appears to have considered the letter as evidence, and we can therefore consider it on appeal. 20 C.F.R. §§ 656.26(a)(4)(i), 656.27(c).

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114

The CO determined that the letters provided on audit and reconsideration were insufficient documentation in response to the audit, and therefore denied the application pursuant to Section 656.20(b) for "a substantial failure by the employer to provide required documentation." 20 C.F.R. § 656.20(b). ~~ · "n ~~~emHmtM1~11w~~~

~~

We find that the Employee's submission of the signed letter from Ms. Nakamura in response to the Audit substantially complied with the Audit request, and the CO's denial under Section 656.20(b) is not warranted. ~~WlwwGQ i~MH~r to -~twme~@•ft~it1J111·wffh'~~~~lii~~1d ~- I~ lhul!!lt'i®&Wft@1....J~·'2@ '"'iH$~fbe& ilit•ble d<iji»HMWmM1tPm10iuom~s1m~~~1:u~ntive PIJ\ll~umi~~~~~Mm~tmdl'ad!imalidmldmt!~'*'1~~dge r••mmatsmlallttiftifWHJiitlflt•." (AF l). JltMt~o~~Nlli1lltilti~ese a@i!ijlj~~~ifl~. Furthermore, we note the requirement in the ETA Form 9089 did not require any "certifications" or "licenses" (which would be more easily documented), but merely knowledge of the identified programs/information. Furthermore, nothing in the audit required the foreign worker's statements to be notarized. Accordingly,~ ~i~~~U'M~~nm:i~-~~r fa~~~~Mtlil~~~udit.

Be~us~w•'i~cl&i.ith:a~@!ll<litm'P:i~~M.1~6i'n'i~~~~.utdi~tN~, tl1e c~~emn•iw~w~~~@~~~-~"V~

ORDER

It is OROJi:RED that the denial of labor certification in this matter is hereby REVERSE]) and the CO is directed to GRANT certification.

Boston, MA

For the Panel:

Dig/tally sign•d by Colleen Getllj)flly ON: CN•Colleen Goraghty.

OU•Admo1lotratlv& Low Judge, O•Olrtc• of Admk1istrettve Lavv Ju<lges, L~Bosum.

S•MA, Co\JS Location: Boston MA

COLLEEN A. GERAGHTY Administrative Law Judge

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115

In_re_INTEL_CORPORAJION_2013PER03071_(FEB __ 20_2014)_1ll749 __ MODIS_SD

DQL Home Page Qfild. Home Page Office of Administrative Law Judges Reporter

U.S. Department of Labor Board of Allen Labar Certification Appeals 800 K Street, NW, Suite 400-N Washington, DC 20001-0002

(202) 693-7300

(202) 693-7365 (FAX)

Issue Date: 20 February 2014

In the Matters of:

INTEl CORPORATION, Employer

on behalf of

SELVAPRABA SELVARASH,

MANUEL MARKUS LUDWIG CAROLI,

PARK YOUNG YOON,

UMTAESUN,

KIMIN JUN,

NENAD STOJANOVIC,

Aliens.

Appearauce: Rodney A. Malpcrt, Esquire

BALCA Case No.: ETA Case No.:

BALCA Case No.:

ETA Case No.:

BALCA Case No.: ETA Ca5eNo.:

BALCA Case No.:

ETA Case No.:

BALCA Case No.: ETA Cas~ No.:

BALCA Case No.:

ETA C•isc No.:

Fragomcn, Del Rey, Bernsen & Locwy. LLP Phoenix, Arizona

Before:

WILLIAM S. COLWELL

For the Employer

Almanza, Colwell and Henley

Administrative Law Judges

Associme Chief Administrative Luw Judge

2013-PER-03071

A-13014-30566

2013-PER.03077

A-13015-31039

2013·PER-03091

A-13015-31077

2013-PER-03092

A-13015-31070

2013-PER-03270 A-130 l 7-31770

2013PER·03271

A-l 30 l 7-31792

Pagel of 6

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In_re_INTEL_CORPORATION_20l3PER0307l_(FEB _20_2014)_1l1749 _MODIS_SD

ORDER DENYING MOTIONS TO REOPEN

~' 111atte1s invol~~-.!;9,U~~t~ .. };> reoe;n .~ilhdra'!:n ~JlJ~als ~:,!-~~~~I by an

E,uu;t~ymcnt ~nd ~~~in~!~!~t!~ ,?~cc. of Forei~--I~~!'°~1titication, CCi'fi'fYTng Officer (0 gCafh) of pemianent alien labor certification under Section 212(a)(5)(A) of the Immigration and Nationulity Act, 8 !J.S.C. § 1I82(a)(5)(A), and the "PERM" regulations found at 20 C.F.R. Part 656. Because these matters involve substantially simihir facts, we have

consolidated the matters for disposition in this Order Denying M<•tions lo Reopen. See 29 C.F.R. § 18.11. In the interest of brevity, the following Background section describes the circ\lmstances

in the Appeal File in BALCA Case No. 20 I 3-PER-03077 as representative of the appeals being

sought to be reopen. I

BACKGROUND

The Employer filed a fonn 9089 application in Case No. 2013-PER-03077 sponsoring

the Alien for permanent employment in the United States for the positi(m ofSotl.warc Engineer.

(AF 30·31). llie Employenequired s Doctorate inO gElect &/or Elec &for Comp Eng &/or Sci or

related Eng or Sci disciplincll b with no experience in the job offered, or a Mastc1fl f> degree aud

tlirce years of experience. (AF 31-32). The Employer also specified the following special rcqulreme11ts:

Education or experience in Computational Geometry; Data Structure Techniques;

Algorithm Development/Design; C or C·H or CJ/ Programming; Object Oriented Design; Software Archite<:turc/Dcsign; Security/Encryption SW Development:

and Data Mining.

(AF 32). 'l11e CO denied certification on the ground that the Form 9089 did not show tlmt the

Alien had educ11tion or experience meeting the special rnquiremcnts. (AF 27 .. 29). The Employer llled a motion for rcconsidcn1tio1i arguing d1nt lhc COil fa decisi-011 !I gcoll!radic1s I.he Dcpllrtmcnt of

Labor's ( . .Dcpt1rtment.) consisLent past approval of applications requiring a degree and specific skills but where the bcneficia1y gained all or some of the required skills through coursework that

could not be identified in Section K of Form 9089,n hand was inconsistent wilh the Board of Alien Labor Certification Appeals (BALCA) decision inJ;t.onyt1 _& Assodat"1', //II., 2009-PER-8 (Aug.

fl' l u,....,.;.;.,.,.;.,.1•\\W<.l>,l:W);•,.,~··~J<>W~\."'it

''~.Lti~

In an unsigned letter dated August 14, 2013, the CO re.:onsidcrcd, but concluded that the

ground for~aficJ;'"tfn'Ctr~~~~c!;7;ii7~4J?;;;90B9fu"r"';:'°~portmg e~"°'"'°"";.1.)~~,,.~-~p:.~ <~~._ ... ,..,.,..,..,..r ... ~ .• ,.,..w,, ... ,,,...,~,:;,·;-..,,,,,.,,.,~,~"'''~·'•.•~·~.~,:..,

An stienll · · '

ll.;!_~snw1~~)).!mljl<$, s .. ~ On that same date, the Atlanta National Processing Center (ANPC} transmitted an Appeal File to BALCA.

By Jett:'.: ,dated ~~~~u ..... :tQ!.J,1!.!J!l...i?.9.~l!n.~!s.c;£Ut~P~.Ul1..~L.2...~2_,__~~~En.!.P~oyer, • 1~:y ~.~~~!'-~.!!!2!l!:~i.!!.s.~Ppc!ll. TI1is letter was addressed to BALCA, <111d copied

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on the 11Uomey for the CO. The withdrnwal Jolter was filed prior 10 the lloardll Is issuance of•

Notice of Docketing.

The Bourd issued an Order of Dismissal on September 16, 2013.

By letter dated October 8, 2013, and postmarked October 9, 2013, the Employer filed a

H gRcqucst r';;kcinstn1c~-~~;;;-ti;;;;-1~-1"lecousid'Ci'.n'"'"'fl'1'1;;&,jii{;y'Cf"Wioi2··-···-·-------·······--····· 6'"M,· ·~~~ .......... -~~1<>-t>;~.i.--~-""t

~!~ D .§~oti~'·' to! ~e:onsi.~e~~~ ..... h fi.k~~!!~~2J-~~~llh ~=~ ~ht~!!!~~..1!!!2~t. This case ispar1 offal li1rg(~ group of about 200 identical cases filed wi!h lhc Department of Labor

(ll gDep•rtn1entll h). 'lbese cases were denied for identical re•sor1s, Intel ••hmiUed

H gMolions to Re<;onsidcrll h for tl1i.• and other similarly denied applications. The

Department affirmed and referred the matter to this Board for Review pursuant to

20 C.F.R. § 656.24(g)(4).

Intel had to decide whether to withdraw the Motions w Reconsider to file

new appli~t~~;;;oo;;7~;;;;d'litls'';';'iiiit'~''iO"the'&;',d77;;r.;r 11~ ,. r r~ e ccted to refile the application and withdrew its request for reconsideration (now

review).

However, in the midstream of denials 011 this isst1e, the Department

graciously started approving, after reconsideration, some of th1~ other identical

cases instead of referring them to the Board. Presumably the Dcportn>en1U fs intent

is to approve lhis identical case as well. ft would be mutually frustrating if this

application were excluded from approval because it was withdrawn on the eve of

the Departn1enlD fs initiative to approve identical cases.

Em11foye1~ fS Q gRcqucsl for Reinstatement of..Motio1i to Reconsider,", at 1·2 (footnote •Jmitted).

Attached to the Empt~yc18 is Request is a list of PERM a1>p!kaH011s that were allegedly

•pproved upon the Employe1fl f$ motion for reconsideration.

Also allached is a priutout of an email ex.change between u1e t:mployor11 fs attomcy and the

ANPC. On September 21, 2013, the Employe1fl fauttomcynotcd 1J1at he had recently sent

withdrawal requests for six PERM, ,requests t-0 reconsider.,, (one of which involved the Alien in

this mallel"), and requested thal its request to recrnt.~idcr be reinstated bec<1usc other identical

cases had been a1Jprovcd upon reconsideration. The ANPC replied on September 24, 2013, that

Case No. A-13015-31039 [BALCA Caw No. 2013-PER-03077] had been sent to BALCA, and

that once a case is transmitted to BA LC A, lhe ANPC no longer has ,iurisdiction unless the case is

. 3-

the

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remanded. "Ille ANPC noted that BALCA had issued an Order of Dismissal on September l 6,

2013, and advised that the ANJ'C would take no furlher acti(}n unless advised by BALCA.

The Employerll fs U gRequest for Reinstatement of .. Motion to Reconsider, • 'does not have a service sheet, and there is no indication whether the request was se1ved on the Certifying Officer

or on die Certifying Officerll fs Bltomey.

·nie other five appeals have a substantially similar factual and procedural background.

DISCUSSION

Neither the PERM regulations, 20 C.F.R. Part 656, nor the Rulc5 of Practice and

Procedure before the Office of Administrative Law Judges {OAU), 29 C.F.R. Jl[1rt 18. address

motiorlS to reopen. 11m OALJ rules of practice and procedure at 29 CTR. ~ I 8.l(a), however,

provide lhat lbe Rules of Civil Procedure fo.- the District Courts of lhe United StBtes shnll be

applied in any situation not provided for or controlled by Pa11 18. Thus. the Board has looked to

Ruic 60(b) of the Federal Rules of Civil Procedure for guidance in regard to motions for relief

from a final judgm~'llt. See, e.g .. Benish Corp., 2011- PER-510 (Oct. 18, 2012); Franco Wood

Crafting, Inc., 1998-INA-131(Feb.12, 2001); MeridienDiagnosticLaboratory, 1995-INA-188 (Sept. ! 8, I 997). Rule 60(b) provides:

(b) Grouildsfor Relieffrom a Final Judgment, Order, or Proceeding. On motion

and just tenns, the court may relieve a party or its legal represeutativc from a final

judgment, order, or proceeding for the following reasons:

( l) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence tha~ with reasonable diligence, could 1101

have been discovered in lime to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic

misrepresenla(ion, or misconduct by an op1)osing pany;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it is ba~ed on

or

an earlier judgment that ha5 been reversed or vacated; or applying it

prospectively is no longer equitable; or

(6) any other reason tlun justilfos relief.

The Employer in the instant cases did nol rr~mc i1s 0 gRC<JUCSI for Rci11S\1ll<•llc1ll of

u c:Motion to Recons:idt.-TII fl} h ht leans of n Rule 60(b} motion. r1s urgmncJlt is e.'>SCntially that if it

had only known that the CO would change his ;;;i-;;;;~-··Tt;····dct~;:,iiTi;iiig -iiie iliolions for ~'-,,"""""'"'"~•_,_,_,,_,.,(loM~ ................... ....,, ...... ,,.....,_~ .... V""'...,..,, ...... ,~ ....... _ o, ,N ........ , ... ,,.,,.,,._..,~~,,_,~,.,.,....,.,.._.,-.....,~- '., ..... ,, ... ,,,,••••'- 0 rc;,gmWU.!!!lliu.Jor 11£~!~,![~!-E~~,,!l.;k.,}J..::::_~-~·-!~..: .. ~~ witl1ifraWi\.!lic···n11J:CA appct1ls.

. ~ ... .,..,,..,,..,,..,~, .. ,.,,,_.., ............. _ .... ,.,.,,,,,1'<,~..,,,,,,,,,,,,..~-···-"" ... "~ ....... .

extrinsic),

This argument is arguably ground for relief from the BoardU Is Order of Dismissal pursuant to Rules 60(b)(l), (b)(2) or (b)(6).

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Rule 60(b )(I) is generally understood no! to be 0 gintendcd to relieve counsel of the conse<1uences of dooisions delibemtely made, although subsequent events reveal that such

de<isions were unwise.D h Federa/'s Inc. v. Edmonton Inv. Co., 555 F.2d 577 (&b Cir. 1977), citing United States v. £rdoss, 440 f.2d 1221 (2d Cir.}, cert. denied, 404 U.S. 849, 92 S.Ct. 83, 30

L.Ed.2d ss (1971).D h See also Eskridge v. Cook County, 517 FJd 806 (7•h Cir. 2009} (counsel's procedural error in requesting voluntruy dismissal offederal miilpraclice action which effectively

precluded clie11ts fro111 pursuing m•l1oractice claims in slate comt was no! II gmi.iakc~ h warran!in11

relief !tom order dismissing frderal ac1ion). fn its .. Requc.~1 for Reinstatement of .. Motion to Rcconsider,D Ill hthcEinploycrst11tcsth11tintheiustantc•scs it chose to withdraw iL~ BALCA

appeals in order to file new applications. The Employer also asserts in the Request that the CO

changed bis position on the grotmd for denial and the CO presumably would do the same in

regard to the instant cases. This alleged unforeseen change in !}OSilion by the CO is noi the type

of 0 1;1nistakdJ h ,,,. V gs11tpriscll h tlrnt may relieve a liligalll from ils 1aclkal deci,ion lo request dismissal ofun appeal under Rule 60(b)( I).

Rule 60(b )(2) provides relief based on O gnewly discovered evidence that. with rcasotiable di! igcnce, could 1101 have been discovered in time to mow for 11 new trial.ti h The ww1s have

held, however, that it is implicit under Rule 60(b}(2) that the evidence must be evidence of facts

that were in eKistence at the time of trial, !hough not discovered until atler trinl. See Federal

Civil Rules Handbook, AuthorU ts Comments on Rule 60, Reason 2 at l038 (Thomson-West 2008), citiug Gcmwl U11ive1·sal Sys., Inc. v. Lee, 379 F.3d 131 (5'" Cir. 2004); /Jetterbox Commcnll f.v

Ltd. v. BB Tech., Inc., 300 F.3d 325 (3d Cir. 2002). [:i~,,~tl:l~.l!.l!.lWlWJ!.lJ.!U?.~es!~ the Employer with its , ,Request for Reinstatement of .. Motioll to Reconsid1)1jj tD h indicates that the ... ,,..,~ .. ~~~.,..-~ ... ~-.,...,.,-;....,., ... Ao ... _._..,......,.... ... , •. .,,._ • ....,,,,,~ .. --""""-""""l«..-...0~--........ -...... ,,,. ............ ~,.- .. _,~, ... -......... ~,,;;,J-»'V'"".....,,d-• .......... -..<J~

Ruic 60(b}(6) provides for rclieffrom a final jt1dgmc111 for II gllny other rcasor; !hat justifies

relief.U It 111is rule is reserv<"<I for c•1raordioa1y <imm1s11mccs. See Gonzalez If, Crosby, 545 U.S. 524 (2005); !Je.<'I Weste111 (Sutli<r /louse), 2003-!NA-l 23 (Sept. 7, 2004 ). In the instant cases, the

Etnployc1~ Is •ssmiio11 thHI thl~ CO has changed his position and is now rcversi11g denials on rcc<>nsidcration in cases nearly identical lo the present <::ascs prc:scnls a C\)lorabJ<! ground for

refieffrnm the dismissal of the appeal under Rule 60(b}(6). But it is difllcult for the Board to

"sscss the validity of the Employc1D rs claim wilhout heating from the CO. l11cre is no indication on the Employerll fs Request for Rcinstntemcttt ofO gMotfon lo Reconsidci~ h tlull it sought the COO fs position on whether he would 01ipose the Employe1G fs ""!nests. As nMcd aho\'c, the Employci~ fs

Requests do not have a service sheet or other indication on whether lhc requests were served on

the CO. Although we recognize that lhe Employer contacted the ANPC by email to request

withdrawal of its withdrawal, and was rebuffed, such a request is not the equivalent of seeking an

opposing partyU fa position on a motion filed with an adjudicatory body, nor the equivalent of

~crvicc of a molion <ln lhe opposing party. The Board sirnply docs 1101 know in these ca.1cs

whether the CO agrees that it would change its position if given a se\,()rnl chance to look at the

motions for reconsideration. Based solely on the Einploycrll rs <!x par!« assertions in its Request

-5.

for Rciuslatcmc111 of II gMotlon to Rcconsidcr,U h we decline to find thnc cxtr~h)l'<hnmy

circumstances have been shown to exist as to wmrant relieffrorn the withdniwal of the BALCA appeals under Ruic 60(b)(6).

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In litigation, the chance always ex.ists that a tactical decision not to pursue an appeal will

tum out to have been the wrong choice in retrospect 2 That appears to be what happened here, and sl1011 of nn agreement from the CO to take anather look nt the mnttcrs, the F.mpk>y~rll fa

requests for reinstatement of its appeals are denied.

'Ille Employc1ij fs U gRcqucsl for Rdnstateu1c11t ofn cMotiou 10 Ree<1nsidcrll lU his each of the six

above-captioned matters is DENIED.

For the Panel:

WILLIAM S. COLWELL Associate Chief Administrative l.A1w Judge

2 See, e.g., Spring Branch Independent Schoof District, 2012-PER-23 (Sept 10, 2013} (denying

cmploycrlJ fs request lhnt BAL.CA sua spontc review the denial of ccrtifico1io1~ even d1ough

employer had not timely filed a request for 13ALCA review, where ground for denial was purportedly reversed by OALCA panel decision in another case issued shortly after denial).

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U.S. Department of labor Board of Alien Labor Certification Appeals 800 K Street. NW, Suite 400-N Washington, DC 20001-8002

(202) 693-7300 (202) 693-7365 (FAX)

BA.LCA Case No.: ETA Case No.:

2012-PER-00072 A-09007-18744

Jn the Matter of

ITEK CONSTRUCTION, Employer,

on beha(f (~{

MORENO-RAMIREZ, RUBILIO, Alien.

Certifying Officer: Atlanta National Processing Center

Appearances: Michael E.K. Mpras, Esquire Mpras Law Offices Annandale, Virginia For the Employer

Before: Bergstrom, Johnson, and Krantz Administrative Law Judges

Issue Date; 07 March 2014

DECISION AND ORDER AFFIRMING DENIAL OF CERTIFICATION

This matter arises under Section 212(a)(5)(A) of the Immigration and Nationality Act, 8 U.S.C. § l 182(a)(5)(A), and the "PERM" regulations found at Title 20, Part 656 of the Code of Federal Regulations.

BACKGROUND

On January 9, 2009, the Certifying Officer ("CO") accepted for filing the Employer's application for permanent labor certification for the position of ''Painter.'' (AF 173-182). 1 The

1 In this decision, AP is an abbreviation for Appeal File.

122

CO audited the application. (AF 142-172). On May 18, 2010, the CO notified the Employer that the application had been selected for supervised recruitment. (AF 138-141 ). ln accordance with the CO's instructions, the Employer conducted supervised recruitment that included placing advertisements for the job opportunity directing job applicants to send resumes to the CO's office. (AF 68-137). The CO received resumes from ten U.S. workers in response to the advertisements and forwarded the resumes to the Employer. (AF 68-98).

On April 20, 2011, after the recruitment period had ended, the CO instructed the Employer to submit a recruitmenl report as provided in 20 C.F.R. § 656.21 (c). (AF 65-67). The CO's letter stated, "The recruitment report must ... [s]tate the names and addresses of the U.S. workers who applied for the job oppo1tunity. Please also provide the resumes of the U.S. worker who applied for the job opportunity (other than those sent to the employer by the CO)" (emphasis in original). (AF 66). The Employer submitted its response on May 3, 2011. (AF 12-64). The response included a recruitment repo1t that listed the names and addresses of nine of the U.S. workers who applied for the job opportunity, all of whom had been offered job interviews, but did not list the address of the tenth U.S. worker, who had not been offered a job interview because be failed to meet the experience requirement for the job opportunity. (AF 12-13). However, the worker's resume was attached, which included his address. (AF 63).

On June 3, 20 l t, the CO denied certification for four reasons. (AF 9-11 ). One of the reasons he cited was that the Employer's recruitment report failed to provide the addresses of all the U.S. workers who applied for the job opportunity, in contravention of 20 C.F.R. § 656.21 (e)(3). (AF 10). On June 8, 20 l l, the Employer submitted a request for reconsideration arguing that the CO's denial reasons were improper. (AF 3-8). With regard to the CO's assertion that the Employer had omitted a U.S. worker's address from the recruitment report, the Employer argued, "we not only provided [the U.S. worker's] address, we enclosed a copy of his resume which contains all his personal information and address." (AF 3).

On reconsideration, the CO accepted the Employer's arguments with regard to three of the denial reasons, but determined the denial was valid on the ground that the recruitment report omitted the address of one of the U.S. workers who applied for the job opportunity. (AF 1-2). The case was forwarded to the Board of Alien Labor Certification Appeals ("the Board"), where it was docketed on January 12, 2012. The Employer filed a Statement or Intent to Proceed on January 20, 2012. Neither the Employer nor the CO filed a brief

DISCUSSION

The PERM program features exacting regulations designed to favor administrative efficiency over dialogue in order to better serve the public interest, given the resources available to administer the program. HealthAmerica, 2006-PER-OOOOJ, slip op. at 19 (Jul. 19, 2006) (en bane). The employer bears the burden of proving that all regulatory requirements have been satisfied before labor certification can be granted. 8 U.S.C. § I 361; 20 C.F.R. § 656.2(b).

The regulatory requirements an employer must satisfy include conducting supervised recruitment pursuant to 20 C.F.R. § 656.21 if so requested by the CO. At the c!ose of the supervised recruitment period, the employer must submit a "signed, detailed written report of the employer's supervised recruitment" pursuant to 20 C.F.R. § 656.21 (e). Such a report must

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"[s)tate the names, addresses, and provide resumes (other than those sent to the employer by the CO) of the U.S. workers who applied for the job opportunity, the number of workers interviewed, and the job title of the person who interviewed the workers." 20 C.F .R. § 656.21(e)(3). In accordance with this regulation, the CO instructed the Employer in the instant case as follows: "The recruitment report must ... [[s]tate the names and addresses of the U.S. workers who applied for the job opportunity" (emphasis in original). (AF 66).

Despite the CO's emphatic instructions and the underlying regulation, the Employer's recruitment report failed to state the address of one of the ten U.S. workers who applied for the job. (AF 12-13). The Employer argues that the omitted address was included on the copy of the worker's resume that was enclosed with the recruitment report. (AF 3, 63). However, the Board has previously made clear that § 656.21(e)(3) requires a discrete statement of U.S. job applicants' names and addresses in the body of the supervised recruitment report, even when the CO has access to the names and addresses elsewhere in the file. See JP Morgan Chase & Co., 201 l-PER-01804 (Sept. 13, 2012); Canary Island Palm F'arm, 201 l-PER-01056 (July 26, 2012); Angelos Corp. d/bla Graziella 's, 2011-PER-01299 (June 19, 20 I 2); Benvenuti's Ristorante, 201 l-PER-00633 (Mar. 27, 2012). This interpretation of the regulation promotes administrative efficiency by permitting the CO to quickly review information about U.S. job applicants without having to search through the entire case file. See Benvenuti',~· Risforante, 20 l I-PER-00633, slip op. at 5-6 (Mar. 27, 2012). The Employer was obviously aware that its recruitment report must state the U.S. job applicants' addresses, considering that its report listed the addresses of nine of the ten U.S. workers who applied for the job. (AF 12-13). The omission of one U.S. worker's address may appear to be a relatively minor defect, but it is a defect that brings the Employer's recruitment report out of compllance with the regulation at § 656.21 (e)(3), and as noted above, the PERM program demands strict adherence to the regulatory scheme.

Based on all the frn-egoing, we find that the Employer has not submitted a recruitment report that complies with the PERM regulations. Accordingly, we affirm the CO's denial of certification because the Employer has failed to prove all regulatory requirements have been satisfied.

ORnER

IT IS ORDKREn that the denial of labor certification in this matter is AF.FIRMED.

ALB/ENK(jcb Newpo11: News, Virginia

For the panel: Oigitally sigMd by Nan L SergsttQm

DN: CN::tAtan L, Befgstrom, - OU=AdminiSlrattve Lnw Judge, Q;:Qffica­

or Adminfs1ralivO- Law Judges, L:o::-'1Jcwpor1 News, S:oVA, C:::US

locatlon: Newport News VA

ALAN L. BERGSTROM Administrative Law Judge

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NOTICE OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Order will become the final decision of the Secretary unless within twenty days from the date of service a pa11y petitions for review by the full Board. Such review is not favored and ordinarily will not be granted except (I) when full Board consideration is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance. Petitions must be filed with:

Chief Docket Clerk Office of Administrative Law Judges Board of Alien Labor Certification Appeals 800 K Street, NW Suite 400 Washington, DC 20001-8002

Copies of the petition must also be served on other parties and should be accompanied by a written statement setting forth the date and manner of service. The petition shall specify the basis for requesting full Board review with supporting authority, if any, and shall not exceed five double-spaced pages. Responses, if any, shall be filed within ten days of service of the petition, and shall not exceed five double-spaced pages. Upon the granting of a petition the Board may order briefs.

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125

U.S. Department of Labor Board of Alien Labor Certification Appeals 600 K Street, NW, Suite 400-N . Washington, DC 20001-8002

BALCANo.: ETA No.:

In the Matier qf

(202) 693-7300 (202) 693-7365 (FAX)

2010-PER-00103 A-07261-76549

CREDIT SUISSE SECURITIES (USA) LLC, Employer,

on behalf of

ARUN KUMAR PONNUSAMY, Alien.

Certifying Officer: William Carlson Atlanta Processing Center

Appearances: Janet L. 1-!enner, Esquire

Issue Date: 19 October 2010

Fragomen, Del Rey, Bernsen & Loewy, LLP New York, New York

Before:

For the Employer

Gary M. Buff, Associate Solicitor Jonathan Hammer, Attorney Office of the Solicitor Division of Employment and Training Legal Services Washington, DC For the Certifying q[ficer

Colwell, Jolmson and Rae Administrative Law Judges

ROBERT B. RAE Administrative Law Judge

126

·. \~

DECISION AND ORDER AFFIRMING DENIAL OF CERTIFICATION

PER CURI AM. This matter arises under Section 212 (a)(5)(A) of the Immigration and

Nationality Act, 8 U.S.C. § l l 82(a)(5)(A), and the "PERM" regulations found at Title 20,

Part 656 of the Code of Federal Regulations ("C.F.R.").

BACKGROUND

On October 3, 2007, the Certifying Officer ("CO") accepted for filing the

Employer's Application for Permanent Employment Certification for the position of

"Computer Software Engineers, Applications" located in Research Triangle Park, North

Carolina. (AF 123-137). 1 The Employer listed the minimum education and experience

requirements as a Master's degree and a computer science, MIS, CIS, or Engineering

major, or a Bachelor's degree with five years of experience. (AF 24-25). The Employer

stated that two years of experience as a software engineer would be acceptable alternate

experience. (AF 25). Additionally, the Employer listed the prevailing wage

determination ("PWD") as $75,088.00 per year, and noted that the offered wage was

$77,000.00 per year. (AF 124). As the application was for a professional position, the

Employer listed three additional types of recruitment, one of which was posting an

advertisement on the Employer's website from July 10, 2007 to August 17, 2007. (AF

127).

On November 16, 2007, the CO issued an Audit Notification. (AF 119-122). ln

explaining the reason for the audit, the CO explained that "The employer's slated

minimum requirements exceed the SVP [Specific Vocational Preparation] level assigned

by O*NET to the SOC code for the occupation identified in F-2 of ETA Form 9089, and

the employer must, therefore,. document its requirements as arising from business

necessity." (AF 121). The CO stated that under 20 C.F.R. § 656.17(h)(I), "In order lo

establish business necessity, an employer must demonstrate the job duties and

1 In rhis decision, AF is an abbreviation for Appeal File.

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requirements bear a reasonable relationship to lhe occupation in the context of lhe

employer's business and are essential to perform the job in a reasonable manner." Id.

Additionally, the CO directed the Employer to submit its recruitment documentation.

(AF 119-120).

On December 14, 2007, the Employer responded to the Audit Notification and

atlached a copy of the ETA Form 9089; a letter explaining the business necessity of lhe

position's requirements; a copy of the Employer's Notice of Filing; a recruitment report;

a copy of the prevailing wage determination; a copy of the job order; a copy of two

Sunday newspaper advertisements; a copy of the advertisement placed on

www.jobsync.com; a copy of the Employer's employee referral program; and a copy of a

printout from the Employer's website indicating that the Employer had current openings

at its Center of Excellence in Research Triangle Park, North Carolina, in the areas of

information technology, financial accounting, operations, product control, and accounts

payable. (AF 34-117).

The CO denied certification on September 9, 2009. (AF 28-30). The CO denied

certification because the Employer's Notice of Filing listed [he offered wage as $75,088-

$77,000 and the wage offorcd on the ETA Form 9089 was $77,000. (AF 29). The CO

also found that the Employer failed to provide adequate documentation lliat the second

Sunday newspaper advertisement was published in The Herald-Sun on July 22, 2007, as

indicated in the Employer's ETA Form 9089. (AF 29). Additionally, the CO determined

that the Employer did not provide adequate documentation that it complied with the

additional recruitment step of advertising the position on the Employer's website,

because the printout from the Employer's website did not contain the text of the

advertisement. Therefore, the CO found l11at the Employer did not demonstrate that the

job opportunity was clearly open lo any U.S. wol'ker in accordance with the attestation

requirements under 20 C.F.R. § 656.!0(c) and did not demonstrate that the recruitment

conducted apprised U.S. workers of the job opportunity per 20 C.F.R. § 656.17(!)(3).

(AF 29-30).

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On October 8, 2009, the Employer filed a request for review with BALCA. (AF

1-11). In the request, the Employer argues that the Notice of Filing pc1missibly stated a

wage range that included the prevailing wage determination as the bottom of the wage

range and the salary offered as the top end of the wage range. (AF 4). Secondly, the

Employer asserts that the copies of the tearsheets of its newspaper advertisements in The

Sun-Herald were substantially compliant with the terms of the regulations, and that the

dateless photocopy of the second newspaper advertisement is a minor flaw. (Al' 8). The

Employer also submitted another copy of the newspaper advertisement.2 (AF 19-20).

Regarding the CO's third ground for denial, the Employer contends that the

website advertisement was specific enough to apprise U.S. workers of the job opportunity

for which certification was sought. (AF 9). The Employer asserts that the evidence

submitted displays the date that the pages we're posted on the Employer's website and

includes the job location in Research Triangle Park, North Carolina. (AF 9). The

Employer also notes that the website includes a statement that the Employer is committed

to staffing qualified information technology professionals at this location. (AF 9).

Fu1iher, the Employer argues that the advertisement content requirements at 20 C.F.R. §

656.17(1)(3) do not apply to website advertisements, and therefore that the Employer's

documentation of its website advertisement flilly complies with tlic regulatory

requirements.

The CO forwarded the case to BALCA on November 17, 2009, and BALCA

issued a Notice of Docketing on December 7, 2009. The Employer filed a Statement of

Intent to Proceed on December 16, 2009. The CO filed a Statement of Position on

January 25, 20 I 0, contending that in addition lo being inadmissible, the documents

submitted by the Employer with its request for review do not show the date on which the

advertisements were published and therefore do not substantially comply with the

2 The Employer indicated in its Request for Review that it was enclosing •·a compleLc original version of the advcrtisemcnl posted on Sunday, July 22, 2007." (AF 8, 19-20). The copies in the Appeal File that appear behind the Request for Review, however, do not show the dale of the newspaper advertisement. (AF 19-20).

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'

' regulatory requirements.3 Secondly, the CO asserts that the Employer's documentation

of its website advertisement is insufficient because it did not provide a description of the

vacancy that was specific enough to apprise U.S. workers of the job opportunity for

which certification is sought. The CO notes that the Employer's website printout does

not list any specific position, skills, or qualifications, but rather only generally states "We

currently offer career opportunities in the following areas: lnfonnation Technology;

Financial Accounting; Operations; Product Control; Accounts Payable." (AF 98). The

CO argues that a webpage printout that does not even mention the types of positions

available cannot be found to apprise workers of the job opportunity for which

certification is sought.

The Employer submitted an appellate brief on Febniary 12, 20 I 0. The Employer

states that when it submitted its request for review, it submitted the original, dated,

tearsheet of the newspaper advertisement. The Employer asserts that if the copy in the

Appeal File did not show the date, it was a result of the CO's error, and not the

Employer's. The Employer submitted dated copies of its newspaper advertisements in

The Herald-Sun and contends thal it is not new evidence because it always existed and

was readily available upon request. Second, the Employer contends that. the website

advertisement contains sufficient information to apprise U.S. workers of the occupation,

if nol the job, in the application. The Employer maintains that the advertising content

requirements in 20 C.F.R. § 656.17(!) only apply to newspapers of general circulation or

in professional journals, and therefore the website advertisement need not comport with

lhose content requirements. Additionally, the Employer asserts that ils websilc

documentation satisfies the Office of Foreign Labor Ccrtificalion ("OFLC") FAQ

response regarding requirements of advertising content.

DISCUSSION

PERM is an attestalion based program. 20 C.F.R. § 656.IO(c). Among other

attestations, an employer must attest that the job opportunity in the permanent labor

3 The CO did nol mention nnd presumably has dropped the wag~ range issue Jn the Employcr~s Notice of Filing.

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130

application has been and is clearly open to any U.S. workers. 20 C.F.R. § 656.IO(c)(B).

Accordingly, the regulations require an employer to conduct mandatory recruitment steps

and make a good-fait~ effort to recruit U.S. workers prior to filing an application for .. ,

permanent alien labor certification. See 20 C.F.R. § 656.17; 69 Fed. Reg. 77326, 77348

(Dec. 27, 2004). When the position involved in the labor application is for a professional

position, the employer must conduct at least three additional recruitment steps as well.

20 C.F.R. § 656.17(e)(l)(ii).

One of the additional recruitment steps an employer can utilize to advertise a

professional position is to advertise the occupation involved in the application on the

employer's own website. 20 C.F.R. § 656.17(e)(l)(ii)(B). This recruitment step can be

documented by providing dated copies of pages from the site that advertises the

occupation involved in the application. 20 C.F.R. § 656.17(e)(l)(ii)(B). While several of

the additional recruitment steps permit an employer to advertise the job opportunity in

mediums other than newspapers or journals, the regulations do not specifically list the

content that must be included in such advertisements placed in order to fulfill the

additional recruitment steps. However, § 656.17(1) lists the content requirements for

advertisements placed in newspapers of general circulation or in professfonal journals.

The regulation at § 656. I 7(f) requires that advertisement~ placed in newspapers of

general circulation or in professional journals must:

(I) Name the employer; (2) Direct applications to rcpmt or send resumes, as appropriate for the occupation, to the employer; (3) Provide a description of the vacancy specific enough lo apprise the U.S. worker of the job opportunity for which ce1tification is sought; (4) Indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity; (5) Not contain a wage rate lower than the prevailing wage rate; (6) Not contain any job requirements or duties which exceed the job requirements or duties listed on the ET A Form 9089; and (7) Not contain wages or terms and conditions of employment that are Jess favorable than those offered to the alien.

20 C.F.R. § 656. I 7(f). The CO argues that the advertising content requirements

listed in § 656. I 7(f) also apply to website advertisements, and contends that the CO

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131

properly denied certification because the Employer's website advertisement did not

contain the information required under § 656. I 7(1). The Employer argues that the

advertising content rt<q~irements at § 656.17(1) only apply to advertisements in

newspapers and professional journals and do not apply to advertisements placed in

relation additional recruitment steps. (AF 9).

While the content requirements listed in § 656. l 7(J) only explicitly apply to

advertisements in journals and newspapers of general circulation, the additional

recruitment steps must be interpreted in light of the other PERM regulations and the

policy considerations embedded in the permanent labor certification program. The CO

cannot grant certification unless there are no U.S. workers who are able, willing,

qualified, and available. 20 C.F.R. § 656.J(a)(J). Therefore, an employer must make a

good-faith effort to recruit U.S. workers for the position and the position involved in the

labor application must be clearly open to U.S. workers. 20 C.F.R. § 656.IO(c)(8); 69

red. Reg. at 77348.

The Employer suggest~ that the content requirements for advertisements placed

on websites us additional recruitment are Jess demanding than what is required for

advertisements placed in newspapers or journals as mandatory recmitrnent, based on

regulatory history noting that the additional recruitment steps require employers to

advertise for !he occupation in the application, rather than the job opportunity. 69 Fed.

Reg. at 77345. We disagree with the Employer's characterization of the purpose behind

the additional recruitment steps.' The additional recrnitment steps were not intended to

be some sort of watered-down or cursory method of advertisement, but rather were

intended "to ensure that the greatest number of able, willing, qualified, and available U.S.

workers is apprised of the job oppmtunity.'"1 The Employment and Training

Administration ("ETA") explained in the preamble lo the Final Rule that these additional

recruitment steps were intended to replicate the usual methods used by the m~jority of

4 1t is wmth noting that both the "mandatory steps" and the "additional recruitment steps" arc in litct mandatory ror an employer filing a PERM a1>plicntion for a prnfossionnl position. 20 C.F.R. § 656.l 7(e)(t)(ii).

5 http:/fwww.forcignlaborcert.dolcta.govffoqsnnswers.cfin#adcont6 (lasl vi.sited June 23, 2010).

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employers that were seriously recruiting workers. 69 Fe<l. Reg. at 77345. The distinction

between "occupation" and ''.job" is one that was only noted in the context of diffusing

concerns that the additional recruitment. steps would be cost-prohibitive because they

would require an employer to tailor each advertisement to the specifics of the job. 69

Fed. Reg. al 77345 ("Allowing employers to recruit for the occupation involved in the

application should also work to minimize employer costs to conduct special recruitment

effo1ts solely to satisfy the alternative recruitment steps. In sum, we do not believe the

cost to employers oflhe additional recruitment steps will be significant."). Therefore, the

distinction, if any, between the content required for an advertisement for an "occupation"

rather than a "job," is not one that negates the employer's duty to seriously recruit for the

position in the labor application.

The requirements that the position in the labor application must clearly he open to

U.S. workers,6 thal the employer must recruit U.S. workers in good faith, and that the CO

can only certify the application if there are no available U.S. workers Lo perform the

position implicitly require that all advertisements placed by an employer must have the

purpose and effect of apprising U.S. workers of the job opportunity. In order f(ir U.S.

workers lo know about the job opportunity, the advertisements placed to fulflll the

additional. recruitment steps must contain sufficient information about the position. We

hold that all advertisements placed by employers in fulfillment of the additional

recruitment steps must comply with the advertisement content requirements listed in §

656.17(1). 7 To hold othe1wise would undermine the very purpose of the additional

6 This is not the first occasion that we have consiclered the applicability of the ndvcrtiscmcnt content requirements in § 656.J 7(1) in light of the attestation requirement that the position be clearly open to U.S. workers. In .Jesus Covenant Church, 2008-PER-200 (Sept. 14, 2009), we accepted the CD's argument that the atteslation requirement that the job 01>portunity be clearly open to any U.S. worke1· required the employer to comply with the advertisement content requirement at§ 656. J 7(t)(5) and not list a wage on the SWA job order that was less than the wage offered to the alien. In .Jesus Covenant Church. the employer listed a wage in the SW A job order that was the same us the prevailing wage determination, but 28 cents less than the wage offered to the alien, and the majority found· that this was a harmless typographical errOI' that did not lead us to conclude that the job was not cleurly 01>en lo any U.S. worker.

7 We make no determination about the content required for additional recruitment steps other than those thal are "advertisements" placed by an employer. See§§ 656. l?(e)(I )(ii)(A),(D),(F), and (H) (permitting an employer to recruit at job fairs, to conduct on-campus rccmiting, to use private employment firms, and to use a cnmpus placement office).

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recruitment steps and prevent the CO from verifying that there are not sufficient U.S.

workers who arc able,':):Villing, qualified, and available lo work in lhe position.

Employers have been on notice of the agency's interpretation of the regulation.

The OFLC website includes a response to a Frequently Asked Question ("FAQ")

describing the general requirements of any advertiscment.8 The FAQ response states

that:

The regulation does not require employers to run advertisements enumerating every job duty, job requirement, and condition of employment. As long as the employer can demonstrate a logical nexus between the advertisement and the position listed on the employer's application, the employer will meet the requirement of apprising applicants of the job opportunity. An advertisement that includes a description of the vacancy, the name of the employer, the geographic area of employment, and the means to contact the employer lo apply may be sufficient to apprise potentially qualified applicants of the job opportunity.

While this OFLC FAQ response is not a regulation, it is "a ve1·y powerful method

of disseminating information and undoubtedly provide[s] helpfol guidance to applicants

and their representative." HealthAmerica, 2006-PER-1 (July 18, 2006) (en bane), slip op.

at 12. Additionally, we note that these content requirements are consistent with the

interpretation of the PERM regulations offered by notable members of the immigration

bar. See Edward R. Litwin & Marcine A. Seid, Filing Labor Cert!ficalion Applications

Under the PERM Regulations, in NAVIGATING THE FUNDAMENTALS OF IMMIGRATION

LA w. l I 0 (fletsy Lawrence ed. 20 I 0) (noting that while the regulations do not specify the

advertisement content requirements for advertisements placed as additional recruitment

steps, "[a]t a minimum, the information required for newspaper advertisements should

also be communicated in each additional recruitment step: the name of the employer;

directions on how to contact the employer; a description of the job, specific enough to

apprise U.S. workers of the job opportunity; and the geographic area of employment.").

In this case, the Employer indicated on it·s Porm 9089 that it placed an

advertisement on its own website from July IO, 2007 to August 17, 2007. (AF 127). In

11 http://www.forcignlaborcerLdolcla.gov/faqsanswers.cfinf/adco11t1 (last visited June 23, 2010).

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response to an audit, the Employer submitted copies of the advertisement on its website.

On the page titled, "Career Opportunities," the Employer states that iL has employment

opportunities in the· :.~ollowing areas: Alternative Investments; Equities; Finance,

Administration & Operations; Fixed Income; Information Technology; Investment

Banking; and Private Banking USA. (AF 96, I 00).9 On the same page, under the

heading "Center of Excellence Oppmtunities," the Employer stated that it was seeking

employees in the areas of applications development, information technology, and

operations, for its Raleigh-Durham, North Carolina location. (AF 97, IOI). The website

also instructed potential applicants to visit the "Center of Excellence" section of its

website. (AF 97, IOI). The "Center of Excellence" section of the Employer's website

states that it has career opportunities in the following areas: Information Technology;

Financial Accounting; Operations; Product Control; and Accounts Payable at its location

in Research Triangle Park, North Carolina. (AF 98, I 02).

The Employer argues that the advertisements placed on the Employer's website

were specific enough to apprise U.S. workers of' the occupation involved in the

application because the webpage shows ci1e dale of' posting, the location of the job

opportunities, a list of several areas of' employment that it has openii;gs in, and a

statement that the employer is committed to staffing qualified information technology

professionals at this location. (AF 9). We disagree. The occupation involved in this

labor certification is "Computer Software Engineer, Applications." (AF 124). The

Employer's website advertisement did not direct applicants lo send resumes to the

employer or provide a description of the vacancy. The website advertisement is merely a

generalized list of several broad and vague areas of employment and does not contain the

information required under the regulations to apprise U.S. workers of the job opportunity

in the labor application.

The CO properly denied certification because the Computer Software Engineer

position was not clearly open to U.S. workers. As we find that the CO properly denied

9 AF 96 corresponds to I.he Employer's Career Opportunities wcbpage dated July 10, 2007, and AF 100 corresponds to the Employer's Career Opportunities webpage dated August 17, 2007.

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certification on this ground, it is unnecessary to address the other ground the CO asserted

for denying the appliCation.

Based on the foregoing, we affirm the CO's denial of labor certification.

ORDER

IT IS ORDERED that the denial of labor certification in this matter is lmeby

AFFIRMED.

For the panel:

A ROBERT B. RAE Administrative Law Judge

NOTICE OF OPPORTUNITY TO PETITION FOH REVmW: This Decision and Order will become the final decision of the Secretruy unless within twenty days f'rom the date of service a party petitions for review by the full Board. Such review is not favored and ordinarily will not be granted except (I) when full Board consideration is necessary lo secure or maintain uniforrnily of its decisions, or (2) when the proceeding involves a question of exceptional importance. Petitions must be filed with:

Chief Docket Clerk Office of Administrative Law Judges Board of Alien Labor Certification Appeals 800 K Street, NW Suite 400 Washington, DC 20001-8002

Copies of the petition must also be served on other parties and should be accompanied by a written statement setting forlh the date and manner of service. The petition shall specily the basis for requesting full Board review with supporting authority, if any, and shall not exceed five double-spaced pages. Responses; if any, shall be filed within ten days of service of tl1c petition, and shall not exceed five double-spaced pages. Upon the granting of a petition Uic Board may order briefs.

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F(•hruilr~· 21, 20 I ..I_. Ne\\ F.!\() n~~arding notific:.llioll ;,llJd Ct111sidcn11ion or laid-off l; .S, workl•rs for PER!\·1'.1~_1ppliealions.

I. I Ion dl'IHilcd tlot•s I he n•cruilml'nl n•port lrnn.• to he with rc~pl'l'I to lhl' la\\ f"ul, joh-·n.·latcd reasons U.~. workers were rejected'!

The employer must categorize the lawliJI job-relatccl reasons J(ir rejection or l!.S. applicants and provide the number of"l!.S. :ipplicants rejected in each cnkgnry. ·1 he recruitment report doc:-. not ha\·C In identi!\ the individt1al lJ.S. workers who '1pp!icd for thL' job \)pportunit~. NOTJ:: Tht Cer1i(yi11g <.Hlit.:l":r. arter rt:viev•.iing the cmploye1"s recruilmcnl repnr\. mil)

request the ll.S. 1vo1·kers' resumes or applications, sorted by the lawrul ,inh related reasons the workers were rcjcckcl. NOTE: The Certifying Of'liccr. al'lcr reviewing the employer's recruitment report, may request the U.S. workers' resumes or applications, sorted by the Jawlitl job related rcnsons the workers were rejected.

2. How docs an employer demonstrate thnt it notified and considered laid-off U.S. workers for f.he job opportunity listed on the ETA Form 9089?

As one condition of obtaining PERM labor certification, an employer must provide notice to and consider for hiring LJ.S. workers laid off by the employer during the six months preceding the filing of the application. 20 CFR 656. I 7(k)( I). Such notice and consideration must be given to all employees laid off during this period who worked in the oceupalion in the area of' intended employment for which certification is sought or who worked in a related occupation ("potentially qualified U.S. workers"). 20 CFR 656. I 7(k). /\related occupa1ion is nny occupu1inn Iha! requires workers to peri"brm n 1nnjority ol'thc esscn!inl dulil'"S involved in the occupation llir which certillcation is sought. 20 CFR 656. J 7(k)(2). An employer n1us1 maintain and, ifrcquesli.!d, submil documenl~1lion establishing lhat it noti!ied ~ind C(rnsiden.:d all potcntinlly qunliliecl ll.S. workers it lnid off during the six months bel(irc filing the nppliention. 20 CFR 656.17(n)( I), (3). The employer must include the rcsulis ol'i1s notilicn1ion nnd consideration of' these laid-off U.S. workers in its recruitment rcpOl't. 20 CTR 656. I 7(g). /\s a rl!Slllt nf" nuditing employer comp I iancc. \>..rith 1:1e requirements relating tu laicl-o!Twnrkers, OH.C hns determined that many applicant employers arc applying section 656. I 7(k) in H ~ln1ightllJ1 ward nHrnncr, i.e., contacting their laid-ofTworkc..:r:, who are potentially qualified for 1hejob covered by the applkation at the time the employer begins inviting interested candidates to apply l(ir the job (about the time a job order is placed or it is advertised in a newspaper) and considering for hire those laid-off workers that apply for the position. Some audits, however~ have revealed noncompliance by some employers; these employers have construed section 656. J 7(k) lo only require that they inform workers at the time of their layoff that the employer may have ti.>ture positions for which the worker may have an interest and inviting ihe worker to monitor the employer's job postings and apply for such positions, rather than the employer taking it upon itselrto notily and consider the Jaid­offworkcrs, as required by the regulations.

This 111 isapplication of the requirements established by section 656.17 will result in the denial of' an application. OFLC is issuing this guidance to prevent other employers from following lhis npprom:h in the mistnkcn belier that it satis!ics. lhe rcgulntory requircmenls.

137

Where a l.i.S. '"'rkcr 11hn i' pn1c111i:ill\ qualilicd 1·"r thcjnh eppnnunit;- lrns hccn l:iid offh, :tn cmpln;.t?r durint~ lhL· ,j\ 111\llllh:- p1\.'l..'1..'din1.~ till' ~1pplic111ion. lhe emplU)·L'r must dir1..•ct!: nt1til~ thc \\tll'kL·r ul'tlk jnh 11ppm111ni1: :111d t·11n...,id~·r the wo1:k1..~r irhc nr she applies !'nr tlh.' juli. Tilt.: c.:inpll'> t:·t· ini'h.i, m.1k .. : ;1 r1..·;1 ..... .;n;d;J..,:. µ .. h ,,1-l':ii:h ,_·ffol'I to 1101 i I) L·:ich t)r the potl.'nt i:d!: -qunlilied lnid-t)ff\\11rk~·--r~ tlrnl a n:lt:,~m1_jt1h np1..·ni111; 1.:'.\iSb. Notification shnuld he pnnitlcd by mnil. lit\. llf ~-nwil. u:-.i!l1! the In:-.\ klhl\\ 11 l.'llll1;1c1 in rnnrintion li>r cnt:h \·\:O\'kl'I', The employer must provide each ""'rkcr :1 i'ull descriplion nl'lhe spccilicjob opponuniiy and must invitl! the V\•orker to apply for the pnsitinn 1()1' rvhich he or she is potentinlly qua lilied. At the time n worker i~ laid.off. an employt:r slhniid secure !h>m the worker approprintt: contm:t i11ronnn1iPn to pL'rm!t tlw re<.1uircd nntilic::lli•Hl nnd eonsidl~ration. The employer 111t1st inform the worker lhal it is his lH" her respu11~ihiJity lO apprise the employer or any chHllge in the contact inl\lnnation. The employer may inllirm the worker that he or she may decline to receive or, upon the worker's Inter request. distontinue such noLification. Where a worker declines to receive st1ch notification. the employer will be deemed to have met its notilic.ation and consideration obligntions. \Vhcrc n worker requests Lhat notification be disconlinucd, the employer will nlsn he deemed to have salislied its notilicntion and considerntion oblignlinns for the remainder or the six-month peritld.

An employer who files multiple labor certifications can satisfy its responsibi lilies undc1· the regulation by notifying each laid-off worker (in the manner chosen by the worker) not less frequently than once monthly that a list or current relevant job openings is maintained electronically on a website opcnlted by the employer. Where an employer chooses this alternative, the website must list or allow the worker lo easily search for all the relevanljob openings. Where a list is used, job openings must be identified by title and location and provide a hypcrlink through which the worker mny obtain a detailed description oi-: and the minimum requirements l'nr. each posi1in11 mid :ipply for the position if he or-she so chooses.

Simply informing a lnid-ofTworkcr to monitor 1hc employer's website nw ruture openings and inviting the worker. irintcrestcd, lo apply ror those openings, will not satisfy the employer's regulatory obligation to not ii)· nll ol.its potentially qualified laid-ofTU.S. worke1·s of the job opportunity.

An employer must maintain docu111cn1ntilH1 showing thal it has nict its notice and consideration rcquircmems. including copies oral I relevant letter:;, e-mails, foxes~ web pages (including those listing details oCthc relevant j«>b openings and applications by laid-off workers for those openings), and other contcrnpornneous documents that show when and how notice and consideration was given. In addition, an employer must obtain and maintain written documenlalion that a laid-off worker has declined lo receive notices, requested discontinuation or the notices, or rcfoscd to give or update contact information.

138

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DOL Practice Alert: PERM Travel Bug Advisory by Linda Rose and David Ware

For a long time, a labor certification application for a position lhal involved travel didn't pose much of a problem. Travel was either considered a benefit or a deterrent and was treated as a neutral element. While the PERM regulations indicate that travel should be disclosed in the job advertising, 1 DOL didn't acknowledge this with any consistency in its wage determinations for PERM or 1-1-1 B, and PERM applications were not denied for failure to include travel in the ETA 9089 and/or recruitment.

But a shift in practice began to take place in 2010. We started to see wage determinations that were bumped up by certain travel disclosures. At the October 20 l 0 stakeholder meeting, DOL announced its "long-standing practice" of viewing travel as a special requiremenl.2 The ETA Form 9141, Application for Prevailing Wage Determination (PWD) was amended to include a question on travel. We started to see denials for failure to cite travel as a job requirement on the ETA 9089 or in advertising, despite the fact there is no place on the 9089 to list travel, and BALCA weighed in.3 The travel bug has evolved such that today, the rule of thumb is this: If the position involves travel, list it everywhere, including the ET A 914 l prevailing wage request, and for PERM cases, the ETA 9089, job order, notice of filing, and advertising:

It sounds simple but that is where lhe indecision, turmoil, and lack of understanding begin. How much travel constitutes "travel?" ls one mile down the road from the worksite enough? Will travel to the other side of the country kick up the wage a nolch? Will travel abroad kick it up even more? No one knows for sure. But based on SOC descriptors in the Occupational Outlook Handbook (OOH), analyst trends, DOL communications, and BALCA decisions, we have developed some unofficial guidance as lo how and when to reference travel.

1 20 CFR §656.17(1)(4). Advertising must "[i]ndicate the geographic are of employment with enough specificity to apprise applicants of any travel requirements and where applicanl'S will likely have to reside to perform the job opportunity[.]" 2 Minutes from the DOL Stakeholders Meeting, Oct. 28, 20 I 0, Q9, published on AILA Info Net at Doc. No. IOI! 1762, (pos1edNov. !7, 2010). l See. e.g., Matter of American Express Travel Related Services, 2010-PER-00983 (Aug. 29, 2011); Malferof Technoflna, 2010-PBR-00711 (Mar. 30, 2011); Matter qf Deloilfe Financial Advis01y Sen•ices, 201 l-PER-00342, (Mar. 29, 2011 ); Malfer ofSojlware Prof/ Senw. (Now Aurionpro So/ll(ions), 2011-PER-02299 (Sept. I 0, 2013); Matier qfMasterex Technologies,.2011-PER-02086 (July 30, 2013); Maller of KP MG, 201 l-PER-02695 (Jan. 23, 2013); MafterqfOracle Am., 2011-PER-00963 (Apr. 24, 2013); MafterqfCosmos Found., 2012-PER-01209 (July 3, 2013), Malfer of Lucas, Austin& Alexa11de1~ 2011-PER-02369 (Jan. 13, 2014), Matterc!fNorton Lilly 1111'1, 201 l­PER-01578 (Jan. t3, 2014).

AILA InfoNet Doc. No. J.4040745. (Posted 4/7/14)

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Incidental Travel. Incidental travel occurs only occasionally and is "incidental" (that is, inherent) to the position. It might involve attendance at a profossional conference, or the occasional visit to a client.site. Incidental travel happens infrequently (perhaps only 1% of the time) and not more than several days a few times a year. Lt would not affect a wage determination and therefore probably does not need lo be cited on the PWD, in the advertising, or elsewhere.

Practice Pointer: Jfyou opt to list travel of an incidental nature, you might phrase it like this: "Only incidental domestic travel is t·equired for this position." See note below on international travel, however.

Little Travel. Little travel is intermittent. It happens without much advance planning and might take up more than "several" days but less than 60 days per year. It might constitute up lo 24% of the employee's work time and therefore should probably be listed on the PWD, as well as on the ET A 9089 and in the recruitment. Will it affect the wage? Probably not, unless "no travel" or "incidental travel" is considered normal for the occupation. For example, according to l11e OOH, post-secondary teachers are only permitted incidental travel, even though they often travel to conferences, research sites, and extension sites, depending on the specialty and the nature of their research. So if "little travel" is indicated for a physics professor, expect the addition of a wage level to the normal Levell for an Assistant Professor.

Practice Pointer. Even though "little travel" does not affect the wage, it should be listed to apprise applicants of the requirement. It might be expressed this way: "This position requires only little domestic travel."

Limited Travel. Here's where travel become more definitive. Limited travel occurs on a weekly basis, perhaps one to two days a week, for a total of more than 13 weeks and up to 26 weeks per year. It affects the employee 25% to 49% of the time spent on the job and must always be listed in the prevailing wage request, on the ETA 9089 and in recruitment. Whether the travel is international, domestic; or both, limited travel may boost the wage one level point, depending on the SOC code. Ce1tain occupations, however, allow limited, some, and even extensive levels of travel. For example, limited levels of domestic travel are normal for most computer occupations.

Practice Pointer: Limited travel might be phrased like this: "This position requires limited domestic and international travel to client sites."

Some Travel. Some travel must absolutely be listed on the prevailing wage request, on the ETA 9089, and in recruitment Gob order, notice of filing, advertising). Some travel occurs two to three weeks a month for three to four days each week, occupying more than 26 weeks and up to 41 weeks of the employee's time· on the job. When "some" travel is involved, the employee is on the road 50% to 79% of the time.

Practice Pointer: Some travel might be expressed as follows: "This position requires some domestic travel 2 - 3 weeks a month for a few days each week to client sites, as assigned." But note that you aren't necessarily required on the 9141 to describe the exact

2

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140

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DOL Practice Alert: Employee Qualifications in PERM Section K

This practice advisory from the AILA DOL Committee is to alert members regarding the need to list the foreign national's qualifications in Section K of the ETA Form 9089 based on requirements listed in Section H that are not gained through previous work experience. Members will recall that in the minutes from the DOL Stakeholder Meeting on December 12, 2013 (AILA Doc. No. LU2_l_l.~H9), AILA asked DOL about PERM denials based upon a license or certification requirement that was listed in Section H.14 of the ETA Form 9089, but where Section K did not list that the foreign national held the license or certification (primarily due to the limitation of the form not providing a logical place to do so). DOUs answer is summarized as follows:

Answer: In general, if an employer states that a specific position requires a license, the employer should indicate that the beneficiary has the license. The appropriate place to list the license is under K.9 so that the analyst can compare the requirements and the beneficiary's qualifications. OFLC will issue an FAQ to spell this out more clearly. When stakeholders asked OFLC to consider in the future, issuing an FAQ in advance of the change in practice, OFLC agreed to take this into consideration if there is a decision to make a policy change. OFLC is continuing to examine how to address cases already denied on the basis that Section K did not list the license or certification. Employers witb denials on this basis may wish to file a Request for Reconsideration of the denied case to at a minimum preserve the issue until OFLC develops further guidance.

The AILA DOL Committee continues to receive repoits of PERM denials for failing to list these types of qualifications in Section K, and is collecting examples of such denials (See AILA Doc. No. LJ.(L{"?:i55). Examples of such qualifications, include, but are not limited to:

• Licensure, or eligibility for license, e.g., Medical License, Teacher Certification, Professional Engineer (PE).

• Knowledge or coursework acquired in a course of study. 1111 Professional certificates or diplomas, e.g., Microsoft certification, Health and Safety

Certificate, CPR Certificate, Engineer-in-Training Certificate. • Board Certification, or Certification Eligible, e.g., Board Certification in Internal

Medicine, Board Certification in Immigration Law. • Second degree, ifrequired by employer, e.g., Bachelor's in Civil Engineering, in addition

to a Ph.D. • Degree or other credential required at H.4, "education: minimum level required," does

not match the foreign national' s credential at J. l l, "highest level achieved relevant to the requested occupation" [e.g., H.4 requires a BS in Chemical Engineering; J.11 indicates

J

AILA lnfoNet Doc. No. 14041655. (Posted 04/16/14) 141

foreign national has a (relevant) Ph.D. in Process Engineering, but foreign national also has a BS in Chemical Engineering that cannot be entered anywhere in Section J or K].

Since indications are that lhe upcoming FAQ will likely require listing such qualifications in Section K, members are advised to include this information now. Once the FAQ is issued, DOL may deny cases without taking into consideration whether applications were filed prior to the FAQ. Even though members may have received approvals without including this information previously, DOL appears to be focusing on this issue more closely now. Therefore, the AILA DOL Committee advises members to adjust their practice accordingly, by listing the foreign national's qualifications in Section K of the ETA Form 9089 based on requirements listed in Section H that are not gained through previous work experience.

2

AILA InfoNet Doc. No. 14041655. (Posted 04/16/14) 142

Department of Labor Office of Foreign Labor Certification (OFLC) Stakeholders Meeting

December 12, 2013

Present on behalf of the OFLC: William Carlson, Lauren Bernstein, Bridgette Keplinger, Elissa McGovern, William­Rabung, Harry Sheinfeld, and Tatiana Steis

Stakeholders i11 attendance: AILA, National Association of Foreign Student Advisors (NAFSA), Council for Global Jmmigrntion (CGI), and American Bar Association (ABA)

Introduction and General Updates

Government Shutdown -OFLC provided an overview of the impact of the government shutdown. Under provisions of the Anti-Deficiency Act, OFLC was required to shut down all of it~ technology which rendered the onlinc systems for filing LCAs and PERM appfications completely inaccessible. As the shut-down was unprecedented, OFLC did not know what issues might arise when the systems were re-started, and experienced some unexpected challenges in getting everything running again. OFLC is reviewing the impact of the shut down on the system to identify whether system changes in the future may mitigate the chances of similar repercussions in the event of another shut down.

Economy and Unemployment- In response to a general AILA question about the cffoct of the economy on PERM adjudications, OPLC stated that agency does not change its adjudication processes or standards for individual applications in response to changes in the economy. However, OFLC does keep abreast of an aggregate of different types of data including outcomes in supervised recruitment (SR) cases (denials, employer withdrawals pre-recruitment, employer withdrawals post-recruitment), audits, and layoffs. OFLC receives notice of large layoffs, which may trigger reviewing databases and filings.

Supervised Recruitment - Over the last two years, there has been an increase in SR denials and withdrawal rates. The combined denial and withdrawal rate in FY2012 was 52%, in FY2013 was 69%, and in FY2014 to date is 95% (the FY2014 sample is very low as OFLC is still in the early months of the fiscal year). By comparison, the denial rate of applications adjudicated after an audit has stayed steady at around 33% during that same time frame. In response to this statistic, there was a stakeholder comment that OFLC should consider that the withdrawal of applications is not only due to an application coming under SR, and that employers do stop the process once there are U.S. workers available which is appropriate as the PERM process is a test to determine whether there are qualified U.S. workers available for a given job opportunity. There was also a stakeholder comment that the processing time of an SR case could be a factor in an employer withdrawal, and it was asked whether OFLC collected data on that OFLC con finned that the agency does not currently track specific reasons why SR cases are

AHA InfoNet. Doc. No. 140l.H49. (Posted 1/14/14)

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withdrawn, but acknowledged that passage of time, employees leaving to join another employer, or other factors would account for some of the withdrawals.

Questions and Answers:

Government Shutdown

1. Question: While congressional leaders have indicated a desire to avert another shutdown, the possibility remains that the federal government, including OFLC, will shut down again on January 15. This raises a number of questions, including:

a. Can employers expect the prior post-shutdown guidance to hold in another government shutdown? Can OFLC make assurances prior to another government [shutdown] that there will be a grace period to file electronically, and that recruitment and PWDs will be considered timely filed if they would have otherwise been rendered out of date?

b. How was the cutoff date of November 14 detennined for !he prior grace period? Is there a way for employers to determine, for planning purposes how long the deadline has been extended during the course of a government shutdown?

c. Are technical improvements being made to minimize disruptions to iCert and the PERM website when demand increases after a shutdown?

d. A January 15 shutdown would come during the heart of H-1 B season, as employers are scrambling to get LCAs filed. Can DOL expedite pending LCAs prior to a shutdown, if it looks imminent, to minimize the number ofLCAs pending during a shutdown?

e. Will OFLC consider allowing paper filings to be withdrawn, and electronic filings to be substituted, for cases in which employers filed paper filings during the shutdown to avoid stale PWDs or recruitment (before guidance was issued)?

t: We have heard reports ofemployers still waiting for case numbers for cases filed during the shutdown. What is the current status for receipting paper cases filed during the shutdown'!

g. Will OFLC consider an on line system that allows employers to track the status of cases filed by paper? (CGI)

Answer: Much of the concern about another shutdown should be eliminated by the actions of Congress on the budget. OFLC has been tracking impacted applications and its goal is to bring all applications to the point they would be if the government shutdown had not occurred. This was the purpose of the post­shut down guidance issued by OFLC. Resources have been added to various queues where there has been a backlog and OFLC is working on catching up.

Paper filings during the shutdown are being processed like any other paper filing. As a general matter, paper filings require extra resources from OFLC and therefore take longer to process. Stakeholders should look to the published

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guidance concerning applications mailed into OFLC, and where there are still questions contact the Atlanta Help Desk.

On prcvaiiit{gwage determinations, it is OFLC's goal to process PWDs within 60 days. While OFLC has been faster than that in the past, the goal is 60 days. The shutdown caused a substantial backlog in PWD requests, and OFLC is working to eliminate the backlog and get processing times back to 60 days.

OFLC has made some other technology improvements including changing servers. OFLC has been assessing loads on servers and has been making appropriate enhancements. OFLC will continue lo monitor processing issues to see whether there have been any improvemenL~.

iCERT

2. Question: Over the last few months we have seen that the PERM (e.g., 9112) and iCERT(e.g. 6/18, 8/1, 8/12, and 9/5) systems have undergone a few system updates. Can you provide us with any details as to the purpose of the system updates and also what upcoming updates are planned and when are they anticipated to occur? We understand that technology often poses some unanticipated problems, but to the extent that you can, could you explain why some of the updates have taken longer than originally anticipated? (AILA}

3. Question: Beyond issues related to the shutdown, are there any i;urrenl improvements planned for the iCERT website? For example, arc there any plans in place to lessen the issues related to logins that our members have recently faced, or improve overall navigability of the website'/ (CGl)

Answer to Questions 2 and 3: OFLC is working on a number of enhancements to iCERT which include the following:

(a) Improving the reliability of iCERT; (b) Upgrading the system to a more recent version of the server platform; (c) Enhancing performance of the labor certification registry, including the

possibility of adding H-1 B records; (d) Fixing a bug that arises when withdrawing LCAs; and (e) Improving security with using stronger passwords.

Without specific examples of website navigation issues, OFLC could not comment. However, QFLC reminds stakeholders to notify the Help Desk regarding system problems.

Prevailing Wages

4. Question: What is the current status of PWD processing times? Can anything

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be done to bring processing times under or around 30 days? (CG!)

Answer: OFLC: .. is working on PWD requests filed for;

H-!Bs in 912013 l-l-2l3s in 11/2013, excluding survey requests PERM Applications in 9/2013 Redeterminations in 8/2013 Requests for Center Director review in 8/2013

In addition, requests for H-28 PWDs have increased 64%. These are taking 30 days. There has also been a huge increase in H-28 survey requests as compared to last year. Surveys take significantly longer to process, and there are also new survey publications for H-2B, as well as some new occupations, that the government must assess. This, in combination with the shutdown backlog, is causing processing delays.

Temporary prncessing is current. The backlog from the government shutdown has been caught up.

Standard OFLC processing time for PWDs is 60 days, and OFLC does not anticipate having a shorter processing time.

LCA filings are up 8%; the number of types of positions requested i_s down 27%.

H-2B applications this fiscal year are down 44'Xi, likely due to PWDs for H-28s.

Electronic filings; 41% ofH-2A applications have been filed electronically. 63% of l-l-2Bs filed electrnnically. 90-95% of PERM applications have been filed electrnnically. The goal is to encourage more electronic filing.

5. Question: O*NET Classification for LCA Prevailing Wages: The instructions to ETA 9035 Section H, Question 2 state that the employer should "Enter the six or eight-digit Standard Occupational Classification (SOC)/Occupational Network (O*NET) code for the occupation, which most clearly describes the work lo be pe1t'ormed." In adjudicating the ETA 9035, will a SOC/O*NET classification that does not appear apprnpriate based upon the job title result in a denial of the Labor Condition Application? lfso, how does OFLC evaluate the listed code, and will an employer be given an opportunity to explain why lhey believe the code is appropriate? (Al LA)

Answer: OFLC confirmed that it reviews the SOC code selected as part of processing the LCA. Employer should enter the six- or eight-digit code for the SOC/O*NET occupation which most accurately reflects the work performed. Questions B.2 and B.3 are evaluated for completeness or obvious inaccuracies. An employer who uses a selection that is obviously inaccurate will result in a

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denial. Otherwise, if the occupation is sufficiently related it will be accepted. OFLC recognizes that employers may vary on the classifications chosen for particular job titles. The LCA Help Desk (LCA.chicago@dol.gov) should be contacted with questions.

6. Question: ETA 9141 Questions: Pleaseclarifythefollowingregardingthe new ETA 9141:

a. ACWIA Wages - Section D, Question I asks if the employer is covered by ACWIA. Will a "yes" answer to this question automatically result in a prevailing wage determination based upon the ACWIA-Higher Education Database if data is available for the occupation and location in that database? !fan employer is eligible to have the wage determined under the ACWlA database but prefers a wage determination under the All Industries database, may they request an All Industries determination even though they are ACWIA eligible?

Answer: !fan employer is covered by ACWIA, the employer will be issued an ACWIA wage. OFLC does not have discretion to issue a non-ACWIA wage for an ACWIA-covered employer, even ifthe employer asks for a non-ACWIA wage. The ACWIA determination must be made by OFLC, so it is possible that an employer could be deemed covered by ACWIA for USCJS purposes but not considered an ACWJA covered employer for PWD purposes. If OFLC makes a determination that the employer is not eligible for an ACWIA wage, there should be a notation of the finding of ACWIA ineligibility on the PWD.

b. A//emale Wage Surveys: [n Section D, Question 4, employers are given the option of requesting an alternate wage survey in issuing the prevailing wage. However, on a number of occasions OFLC has declined to utilize the alternate wage survey on the grounds that the job description in the survey was not an appropriate match to the job. What are the standards used by the prevailing wage analyst in evaluating whether the job description in the survey is an appropriate match for the job, and what information can the employer provide to assist the analyst in understanding why it believes the job description is an appropriate match? (AILA)

Amwer: OFLC's policy on the use of alternate wage surveys has not changed. It will compare each element of the job description 011 Fann 9141 to the elements on the survey. If each element docs not match, the survey will be rejected and an OES wage will be issued. While Fann 9141 allows an employer to include additional information initially as to why a survey matches, OFLC's impression is that ifa survey really does match, no explanation should be needed. When OFLC determines that there is not a match, it will include the reason for the determination. OFLC confirmed that employers are free lo upload a written explanation of the way in which the description in the alternate survey matches the job description in the ETA 9141, and the wage analyst will consider that explanation in deciding whe!her to utilize lhe al!ernate survey.

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When a survey is provided as part of the iCERT filing or is subsequently submitted, the analyst does have access to it. The analyst not only compares each element'ofthe job description but also determines whether the survey matches the requisite criteria.

A stakeholder indicated that he had received a response when OFLC determined that his survey did not match, stating "there is a better job match in the survey that was provided." The individual therefore. raised the question of what materials the analyst has access to and what the analyst considers when detennining whether a survey is appropriate. OFLC indicated that when an outside survey is used, it is always uploaded into that particular case/request, and the analyst only has access to the survey material provided by th~ employer, and nothing else. However, if the survey submitted by the employer is a multi­occupational survey, the analyst may decide that a different occupation provided is a better match. OFLC sees a lot of the same commercial surveys and therefore has a good sense of what is out there. Nothing prohibits analysts, who may draw upon their knowledge and experience in working day to day with surveys, to determine that there is a better match out there. While everyone is trained across the board, there are a few analysts who are trained on a more in-deptl1 basis in alternate surveys because of the complex criteria that must be evaluated.

7. Question: We have had several reports of prevailing wage denials due to lack of response to RFls that members indicate were never received. Can DOL please look into these examples to determine if there is a possible technical glitch m· other problem occurring? (AILA)

Am·wer: OFLC's assumption is that the RFI is properly delivered to the recipient. OFLC researched the examples provided by AJLA and their records indicated thal lhe requests have been received by the applicant's server and therefore OFLC does not believe it had a system issue on its side. Sometimes the requests are stuck in, the recipient's server/spam filter. This is not a glitch in delivery as far as OFLC is concerned.

8. Question: Wage data compiled by the Association of American Veterinary Medical Colleges (AA VMC) is the only authoritative source of Prevailing Wage information for veterinary residents and interns. The Online Wage Library does not have data for this category of employees. Schools that have used the AA VMC survey as the wage source on an LCA have had their LCA denied with this message:

"If you believe the wage source specified in section G.11 to be appropriate for future LCA filings you may submit the wages source to be evaluated in support of an ETA Form 9141, Application for Prevailing Wage Determination, following the procedures contained within .... for submitting an employer provided source ... "

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Veterinary schools have successfully used the AA VMC survey with Form 9141 for many.years. Since OFLC seems to recognize this survey as a valid alternative wage source when used to support the ETA 9141, can OFLC permit employers [the] use of the survey as a wage source directly on the LCA? This would significantly reduce processing time and give schools with time sensitive H-1 Bs the option of filing an LCA without first filing an ETA 9141. (NAFSA)

Answer: The wage source in G. 1 l .b must identify the name of the company that conducts the survey and the exact title of the survey. OFLC accepts abbreviations. The entry in G. l l.b. must be recognizable based on information entered in the form. LCAs are reviewed on a case by case basis. The Chicago NPWC has recognized and accepted the AA VMC survey previously and this can be entered directly on the ETA Form 9035 as the source of the prevailing wage. Chicago NPWC also verifies the publication date and therefore can deny the LCA based on the publication date. This particular survey is published every lwo years and the NPWC is aware of this. If the entry into G. J I.a, i.e., the publication date, is different or does not support the publication title listed in G. l 1 .b, then the LCA will be denied. LCAs can be denied for inconsistencies other than the title as well.

9, Question: Since it is often unclear to employers how an analyst arrived at the assigned wage level, we would respectfully request that OFLC encourage analysts to use Item E.7 of the ETA 9141 to inform employers about how they arrived at a wage level higher than Level l. (NAFSA)

Answer: There has been no change in how points are assigned affecting wage levels. Analysts are instructed to use the same standard checklist as in previously issued guidance. It is standard to issue points fur factors such as supervision, educational level, travel, and special skills. Analysts are not required to provide rationale as to how the level was reached. A note will be made, however, where a combination of duties exists.

10. Question: Can you explain the apparent reluctance of NPWC analysts to use "All Other" occupational classifications. Are analysts encouraged not to use these classifications? Several universities have reported thal even when "All Other" appears to be the most appropriate classification and is requested, it is never assigned by NPWC. Here's a recent example:

Employer suggested: 19.1029 Biological Scientists, All Other (Specifically, Molecular and Cellular Biologists)

Job Description: Under the supervision of a faculty member in the Depmtment of Biology, conduct research on 1imdamental mechanisms of DNA repair and mutagcnesis in bacterial cells with a special emphasis on the

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roles of translation DNA polymerases; molecular mechanisms underlying the Rhizobium-legume symbiosis and relationship of the symbiosis to Bmcella pathogenesis.

Degree Requirement: PhD in Molecular Biology

NPWC issued the PWD under 19. I 021 "Biochemists and Biophysicists." The employer considers "Biological Scientists, All Other" the closest match because "Molecular and Cellular Biologists" is listed under it. (NAFSA)

Answer: OFLC's position has not changed since the March 201 I FAQ. The NPWC assigns the most specific SOC possible for a given occupation. Generally an "All Other" - 99 code is the last resort if there is nothing else. This carries a wage that cuts across a broad range and consequently is not viewed as an ideal match in most cases. In a few years, possibly 2018, there may be another version of the SOC. When the 2010 version was published, a few new occupations were added. These changes will be announced in the Federal Register when the time comes and an opportunity for comment will be available.

However, when a specific job rolls up into "All Other,'' analysts are instructed to use this. AILA observed that some fairly common jobs roll up into "All Other," including Computer Tester, Urologist and many engineering positions. OFLC stated that they would take this information back and look at the FAQ and their processes related to this to determine whether any changes should be made.

l I. Question: PWD Re-determinations: Will OFLC consider a process to expedite re- detem1ination of PWD's in situations where there appears to be clear error? For example, when an employer reports routinely requesting PWD's for the same or very similar positions and a PWD is clearly returned with a much higher wage level than normal'/ (CG!)

PERM

Answer: OFLC will take this under consideration. Bringing such a request to OFLC's attention through the redetermination request is one option. It will consider whether there are other ways to resolve this. Between the Help Desk and the redetermination request option, OFLC should be able to address these issues effectively.

12. Question:

a. Please provide current processing times for the following types of cases:

PERM (no Audit) PERM (with Audit) PERM under Supervised Recruitment

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Reconsideration (non-government error queue) Rec~nsideration (government error queue)

A11swer: Cun'ently processing the following PERM actions:

Analysts initially reviewing applications filed 4/20 l 3 Audits for applications originally filed 10/2012 Appeals/Motions for Reconsideration received l 2/20 l 3 Govemment Error Queue is current

PERM applications received arc slightly up in comparison to the same time last year. Despite the shutdown, there have been more applications. The increase in volume combined with less capacity to review has increased the backlog and will continue to increase the processing times.

Statistics on PERM will be updated on the website in January 2014. In the meantime, here are some of the latest statistics:

Admin (sponsorship and business existence issues): 826 pending Analyst Review (awaiting initial review): 39,467 pending Appeals pending OFLC review: 117 Audit review (cases where audit responses have been filed and awaiting a decision): 14,380 pending Cases at BALCA: 5,465 Supervised Recruilment: 725 pending

Additional Questio11s Re"1ted to PERM Processing:

b. What does DOL see on the horizon in the coming months in terms of particular processing times increasing or decreasing?

c. With the launch of the Labor Certificalion Registry, has DOL seen a decrease in FOIA requests that would allow a shifting of resources within the Department'/

d. How much has the shutdown impacted Lhe particular processing times?

c. How long does DOL anticipate Lhat it will take to recover from the impact on processing times created by the shutdown'? (All Stakeholders)

Answer: There are too many unknowns in the f\Jture to make predictions. Filings are up compared to the same period last year. OFLC does not kn{lw what its budget is going to be in the upcoming year. If workload is high, this places a bigger demand on resources. OFLC is doing its best and is committed to meeting required processing times. OFLC will look at system enhancements to determine whether more slaff time can be found, and is always looking at ways that

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processes can be improved. For now, !here are still too many unknowns; when spring comes, OFLC expects to have more information and may be able to provide more co.ncrete thoughts on what is on the horizon.

Of note, however, is that OFLC just concluded an agreed upon production standard during collective bargaining negotiations with the union representing the adjudicators. New bargained production standards took effect on Monday, December 16, 2013. The interest is to maximize production without sacrificing quality. OFLC measures this on an ongoing basis. Reports by individual staff production are generated. Production is measured virtually on a daily basis against collective bargaining standards. These appraisals are very important. Where they are off, explanations are provided to management and centers. Corrective action plans are developed. Their job is to get people back on track.

13. Question: Supervised Recruitment: A number of employers have reported significant delays with SR cases, particularly those with blanket SR orders. Our members report multiple cases pending for nearly two years where the certifying officer has not yet issued recruitment instructions. When employers follow up with the agency about the status of recruitment instructions, they receive form responses stating only that SR cases cannot be expedited. Meanwhile, prevailing wage determinations (PWDs) for affected cases expire, meaning that employers are subjected to the additional burden of resubmitting PWD requests.

These delays pose significant burdens on employers. Employers are unable to make business decisions concerning affocted employees and are unable to withdraw the applications and re-file. At a minimum, these employers would appreciate receiving concrete information about the processing of their cases. Can you provide information about the agency's general procedures for monitoring the processing of supervised recruitment cases? (CGJ)

Answer: SR continues to be a priority for OFLC. lt will continue to look at changes to see what can be done more quickly and will look at inefficiencies. OFLC is also willing to look at specific cases that appear to have been pending for an inordinately long amount of time without progress. OFLC agreed that there should generally not be circumstances where SR cases are pending for a year without recruitment instructions, but did not provide a specific timeline of how long each component of the SR process should take.

I 4. Question: PERM Engineering Degree Denials: As discussed at the DOL Open Forum at the AILA Conl:erence in July 2013, we understand that there were a number of denials for PERM applications filed for technology positions on the grounds that a degree in Engineering, without specifying the field of engineering, was overly broad and therefore not an appropriate minimum requirement. We also understand that many of these denials have been

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reversed, and we appreciate your efforts in examining these denials. Could you provide clar.ification on the following follow-up issues?

a. I-las OFLC completed its review of and addressed all pending cases with this issue?

b. If a case was denied on this issue and the appeal was sent to BALCA, will OFLC be able to address that case without the employer waiting for a BALCA adjudication?

c. Assuming that they represent the employer's actual minimum requirements, does OFLC agree that an educational requirement for a PERM application for a soflware engineer, systems analyst, or related infonnatio11 technology position of a "Bachelor's degree in Computer Science, Engineering, Mathematics, or related technical field" is an appropriate requirement and is not overly broad? (AILA)

Answer: OFLC is no longer denying applications where the requirement is a generic "Engineering" degree without more for computer/tech positions. For those cases that have been sent to BALCA, the goal is to bring Lhose back and adjudicate them. OFLC agrees with the proposition under "e" above, that this articulation of the degree requirement is appropriate for the positions listed in the example.

15. Question: PERM Denials Without Audit Based on O*NET: AILA members have reported several PERM denials issued without audit based. upon requirements that are inconsistent with those indicated in O*NET. Because the applications were denied without audit, the employers in those cases had no opportunily to demonstrate business necessity. (For example, A-13057-43391). This has raised a more general question among AILA membership 20 CFR 656.17(1) specifically permits an employer to list requirements that are difforent than those "normally required for tht: oecupalion" iflhe employer can adequately document those requirements,as arising from business necessity. Could you confirm that it is OFLC's poliiiy. to provide employers with an opportunity to demonstrate business neces~ity if it is considering a denial on the basis of requirements that are not normal lo the occupation based upon SVP or O*NET'I (AILA)

ljnswer: Employers will be able to provide a letter to explain business necessity. Additionally, the standard language in the audit letter has changed and no longer requests proof of business necessity. Employers can rely on the language in the letter as staled. In the future, if OFLC wants an employer to address business necessity in the audit response, there will be a specific addendum to the audit for the business necessity request.

16. Question; PERM Denials Based Upon License Requirement: A number of AfLA members have reported PERM denials, primarily for physician and teaching occupations, on the basis that Section 1-L I 4 of the ETA Form 9089

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indicates that a medical or other license is required, but Section K does not list that the PERM beneficiary holds a license. In many of these cases, however, Section K does listthat the PERM beneficiary has experience practicing medicine/teac11ing in a particular state, which would be impossible if he/she was not licensed. Given that (1) ETA Form 9089 does not provide any specific section in which to list licenses, (2) the experience listed in Section K necessarily involves a license for physicians and otl1er licensed professionals, and (3) OFLC did not previously deny applications between 2005 and 2012 for failing to list a license on the form, will OFLC consider accepting the listing of experience in Section K as a sufficient indication that the PERM beneficiary holds a license? IfOFLC believes that the license must be listed on the ETA Form 9089, will OFLC consider applying this prospectively, rather than to already pending cases, after appropriate guidance has been disseminated to constituent communities similar to the approach it took with the prevailing wage FAQ? (AILA)

Answer: In general, if an employer states that a specific position requires a license, the employer should indicate that the beneficiary has the license. The appropriate place to list the license is under K.9 so that the analyst can compare the requirements and the beneficiary's qualifications. OFLC will issue an FAQ to spell this out more clearly. When stakeholders asked OFLC to consider in the future, issuing an FAQ in advance of the change in practice, OFLC agreed to take this into consideration if there is a decision to make a policy change. Of'LC is continuing to examine how to address cases already denied on the basis that Section K did no! list the license or certification. Employers with denials on this basis may wish Lo file a Request for Reconsideration of the denied case to at a minimum preserve the issue until OFLC develops fimher guidance.

17. Question: Prevailing Wage Determinations following Request for Information CRPil Response and Completion of ETA Form 9089: At our last stakeholder meeting, we discussed PWDs being issued following the submission or an RFI response with the additional information from the RF! and the RF! response added to the PWD, and whether that additional information affects completion of ETA Form 9089. DOL commented that a general approach would be that if the additional RF! information substantively changes the job duties in a way that would affect the labor market test, the additional information from the RFI response should be included in the recruitment and on ETA Form 9089. Can you please comment on whether there has been any DOL training or guidance regarding this issue? Can you also please confirm that if the employer determines that the additional RF! information does not substantively change the job duties in a way that would affect the labor market test, the additional information from the RFI response does not need to be included in either the recruitment or on ETA Form 9089? (AILA)

Answer: The employer will have to make the decision as to whether the additional information is substantive, and whether the job description on lhc

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PERM needs to be amended as a result of a change in the PWD. Conservative practice is to include the information provided in the RF! on !he ET A 9089 and in the recruitment where required in case OFLC determines that it has substantively changed the'job duties. The analyst reviewing the ETA 9089 may look at the PWD (even if the case is not audited) and see that something is added. lfthc analyst has questions, he/she can issue an audit and/or deny the case. The application can be denied if there is nothing in the recruitment regarding the substantive changes. Ultimately the question is whether the information contained in the RF! response substantively changes the job or would atfoct the labor market test.

18. Question: PERM Audit Template: The format of the current audit letter template is different than the one originally issued, and in particular the standard information requested is different. Is it correct that an employer should rely upon the plain reading of the specific audit letter they receive to determine what to send to OFLC in response to the audit? (AILA)

See answer to question I 6 above. Yes, the employer can rely on the plain language of the audit letter. lfOFLC wants evidence conceming business necessity, it will ask for it in an addendum.

19. Question: ETA 9089: What is the status of the proposed revision to Form ETA 9089? Are there any plans to implement the revised form? lfso, what is the timeframe for implementation? Will DOL be making any additional revisions to the proposed form? lfso, what are they? (COi)

Answer: Changing the form is a challenge because OFLC cannot host two different Forms 9089 concurrently. Moreover, given the time that has passed since the last proposal, any proposed revisions would have to go through the notice and comment process again, which will include publication or a Federal Register notice and solicitation of comments. In addition, once a new form is approved, the system must be changed to accommodate that form. Any new form is at least 24 months away.

C11stomc1· Service

20. Question: We appreciate that both the iCHff portal and the PERM system have 1-lelp Desks available that are often instrumental in solving employer's unique specific issues in a timely manner. This standard of service is critical given that the 1-lelp Desk is heavily relied upon by both DOL and employers to resolve critical issues. However, in some cases, members repmt instances of some very slow responses, unhelptUI responses and non-responses to some inquiries.

Examples include employer's attempting to register accounts and subaccounts. After a number of attempts, they still have not received a resolution. As you

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H-2As

know, time is of the essence with PERM filings. Some situations require multiple emails to the Help Desks before a resolution is obtained and in some cases a resolution or meaningful ·T~sponse is not forthcoming.

Would you be able to provide insight as to the structure, staffing and procedures of each of these Help Desks so that we may have a better understanding of how they work so as to use them most etfoctively'I

Also, what is a reasonable amount of time that a member should wait before emailing the Help Desks again?

Are there certain problems that cannot be resolved at the Help Desk level? ls there an alternative way to contact DOL for resolution when there is none forthcoming from the Help Desk? (AILA)

Answer: In situations where there have been repeated unsuccessful attempts to resolve an issue on the IT side, OFLC needs to know so that the issue can be addressed with the contractors. Note, however, that the Help Desk is not a discussion forum or a place to argue a case. The individuals staffing the Help Desks are entry-level contractors and are not analysts. As far as how long is a reasonable wait, OFLC suggested it may take several weeks for more complicated problems to be resolved (such as some PERM account regislrnLion problems), but did not state a maximum time frame. [The AJLA-DOL committee asks members to submit examples of cases where OFLC has been unwilling to assist or is nonresponsive to r~~Jl9rl!i@A.il;Lg1:g].

21. Question: We have seen Notices of Deficiencies requesting employers to include in the text of job orders the exact regulatory language relating to earnings records. See 20 CFR 655.122(k). Under the l-1- 2A regulations, employers must assure that they will comply with all laws. Therefore, inclusion of the exact regulatory language results in a longer and more complicated job order which in turn causes greater confusion to H-2A workers who must be given a copy of the job order or contract. Is it possible to provide training to the Chicago NPC advising them to discontinue such requests? (AILA)

Answer: OFLC generally agrees. Employers should include a general statement of' compliance as covered by 655.122(k). If an employer chooses on its own to use different language or to specifically refer to these earnings requirements in the text, OFLC analysts will review the language for compliance. If the employer makes an inaccurate or incorrect disclosure, the employer will receive a Notice of Deficiency to correct the language. Going forward, employers will be given an option to make a general compliance statement rather than using specific regulatory language.

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22. Question: We have seen Notices of Deficiencies requesting employers to remove language from its job orders that lhc workers are to "test the smoke detector at least once per week and noli(y your Farm Manager immediately if not working." We understand that it is the employer's responsibility to ensure that housing meets the relevant regulatory standard. However, the smoke detector language has been included in many applications for years. The workers occupy the housing and .are in the best position to lest the alarms -for their safety. Please advise whether employers may continue to include this language since it directly serves to protect the safety of the employees. (AILA)

Answer: Employers cannot continue to include language in the job order that requires smoke detector testing. Employers are not prohibited from asking employees to do this, but they cannot require it as part of the job duties.

23. Question: Area of Intended Employment: We have started to see Notices of Deficiencies for the Yuma/Imperial region that creates a new "60-minute" commute distance. The Notice of Deficiency refers to a 2011 United States Census Repmt entitled "Out- ot~State and Long Commutes: 2011." This report does not include a discussion of the commute distances for agricultural workers. For years, we have been submitting expert letters indicating an average commute of up to 85 miles in the Yuma/Imperial region. Please confirm whether the Department intends to continue to rely on the Census report on this issue on future H-2A applications. lfso, lhe result is that H-2A LC's will have to file multiple applications for what has traditionally been accepted as one area of intended employment. (AlLA)

Answer: Not answered at this meeting. This is an area of ongoing internal discussion.

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20 CFR 656.J7(i)(5)

employer's expense unless the employer offers sim· ilar training to domestic worker applicants.

(5) For purposes of this paragraph (i):

(i) The term "employer" means an entity with the same Federal Employer Identification Number (FEIN), provided it meets the definition of an employer at §656.3.

(ii) A "substantially comparable" job or position means a job or position requiring performance of the same job duties more than 50 percent of the time. This requirement can be documented by furnishing position descriptions, the percentage of time spent on the various duties, organization charts, and payroll records.

U) Conditions of employment.

(I) Working conditions must be normal to the occupation in the area and industry.

(2) Live-in requirements are acceptable for house­hold domestic service workers only if the employer can demonstrate the requirement is essential to perfonn, in a reasonable manner, the job duties as described by the employer and there are uol cost-e!foctive alternatives to a live-in ho1isehold rcqui.remcnl. Mere employer asset .. · lions do not constitute acceplablc documentation. For example, a live-it1 requirement could be supported by documenting two working parent<; and young children in tl1e household, and/or the existence of etTatic work schedules requiring fre<iuent travel and a need to enter­tain business associates and clients on sbmt notice. De­pending upon the situation, acceptable documentation could consist of !ravel vouchers, written estimates of costs of alternatives such as babysitters, or a detailed listing of lhe frequency and length of absences of Ille employer from the home.

(k) L11yoffs.

( l) If there has been a layoff by the employer applicant in the areu of intended employment within 6 months of filing an application involving the occu­pation for which certification is sought or in a related occupation, the employer must document it has noti­fied and considered all potentially qualified laid off (employer applicant) U.S. workers of the job oppor· tunity involved in the application and the results of the notification and consideration. J\. layoff shall be considered any involuntary separation of one or more employees without cause or prejudice.

(2) For the purposes of paragraph (k)( I) of this section, a related occupation is any occupation that rcqui res workers to perform a majority of the csscn· rial duties involved in the occupation for which certification is sought.

358

Com; OF F@@AL REGULATIONS (VOL. II)

(/) Alien injluena lllld control oFer job opportunity. If the employer is a closely held corpon1tion or part­nership in which the a!ien has an ownership interest, or if there is a familial relationship between the stock­holders, corporate officers, incorporators, or partners, and the alien, or if the alien is one ofa small number of employees, the employer in the event of nn audit must be able to demonstrate the existence of a bona fide job opportunity, i.e. the job is available to all U.S. workers, and must provide to the Ce1iifying Officer, the follow­ing supporting documentation:

(I) J\. copy of the articles of incorporation, partnership agreement, business license or similar documents that establish the business entity;

(2) J\. list of all corporate/company officers and shareholders/pattncrs of the corporation/finn/busincss, their titles and positions in the business' s!rnclure, and a description of lhc relationships to each other and to lhe alien beneficiary;

(3) The financial history of the corpora­tion/company/partnership, including the total in­vestment in the business entity and the amount of investment of each officer, incorporator/partner and the alien beneficiary; and

(4) The name of lhe business' official with primary responsibility for interviewing and hiring applicants for positions within the organization and the name(s) or the business' officia!(s) having con­trof or influence over hiring decisions involving the position for which labor certification is sought.

(5) If the alien is one or 10 or fewer employees, the employer must document any family relation­ship between the employees and the alien.

§ iS6.l8 Optional special recruit men and doc mentation procedures for coll e and uuivc ·ity teachcrs. 117

the job opportu ty in a compelit e recruitment and selection pro' ss through which the lien was found to be mor' qualified than any of' the lnitcd States wor~kcrs \ ho applied for the job. For purp scs of this paragr .. lh (b), docuJllcntation of' the "co )Ctitivc rccr tment and selection process" must includ ·.

117 69 FR 77325 ( l 2127/04, effl~ctive 3/28/05).

American ln11111j~ration Lawyers //ssociatio11

TITLE 20: EMPLO

(I) J\. siaternen actual hiring authc in detail the comp! taken; and which r

(i) The total n opportunity;

(ii) The specifii the alien is mor who applied for

(2) A final rep( administrative bod selection of the aJi. petitive recruitmen

(3) J\. copy of a job opportunity p journal, giving the tion; and which sl quirements;

( 4) Evidence o utilized; and

(5) A written stc tile alien's educatiD and academic achic

(c) Time limit for nent alien labor ccr college and univcrs I 8 months after a competitive recruit1

(d) Alternative pr< not or does not cl cruitment procedur teacher under this basic process at §6'. certification of emr sity teachers under able to document, Officer, in accorda alien was found to t worker who applied

§ 656.19 Live-in ho workers. 118

(a) Processing. Ar household domesti< essed pursuant to process at §656. I 7.

(b) Required doc applications on bell tic service workers audit, the following

l!S 69 FR 77325 (l2f27

[2012 Edirionj

158

JLATIONS (VOL. II)

ed, ii' requested by

tative(s) (il'any) of 1 the occupational fication or the job

employer's loca­employment. Doc­copy of the letter on for Permanent 11 that was sent to

iing representative, yer's employees al nploymcnL The no­ast I 0 c<>nsecutive :t be clearly visible and must be posted he employer's U.S. 1sted notice on their 11ployrnent. Appro· lkes of the job op-1e immediate vicin­ces required by 29 fety and health no-13.2(a). fn addition, : notice in any and ectronic or printed, procedures used for ·sitions in the em­documcntation re·· providing a copy of 1here it was posted, the in-bouse media, it were used lo dis-· in accordance with

ar positions with in

1ouseho!d, notice is nly if the household ers at U1e time the is filed. The docu­sfiecl by providing a tifying Officer.

an Applicafion fi:>r 'I ion must:

·vidcd as a result of permanent alien la­ljob opportunity;

Jvide documentary ~ation to the Cert i­lt or Labor;

awyers Association

TITLE 20: l<:MPLOY1':11.S' BKNEFITS (PART 656)

(iii) Provide the address of the appropriate Certifying Officer; and

(iv) Be provided between 30 and 180 day8 before filing the application.

(4) lf an application is filed under §656.17, the notice must contain the infonnation required for advertisements by §656. ! 7(t), must state the rate of pay (which must equal or exceed the prevailing wage entered by the SW A on the prevailing wage request form), and must contain the information required by paragraph (d)(3) of this section.

(5) If an application is filed on behalf of a college and university teacher selected in a competi­tive selection and recruitment process, as provided by §656. J 8, the notice must include the information required for advertisements by §656.18(b)(3), and must include the information required by paragraph (d)(3) of this section.

(6) If an appllcation is filed under the Schedule A procedures at §656.15, or the procedures for sheep­herders at §656.16, the notice must contain a de­scription of the job and rnte of pay, and must meet the requirements. of this section.

(e)(l)(i) Submission of evidence. Any person may submit to the Certifying Officer documentary ev­idence bearing on an application for permanent alien labor certification filed under the basic la­bor certification process al §656.17 or an appli­cation involving a college and university teacher selected in a competitive recruitment and ;;elcc·· tion process under §656. l 8,

(ii) Documentary evidence submitted under paragraph (c)( I )(i) of this section may include in­formation on available workers, information on wages and working conditions, and information on the employer's failure to meet !he terms and conditions for the employment or alien workers and co-workers. The Certifying Officer must

. consider this information in making his or her determination.

(2)(i) Any person may submit to the appropriate DHS office documentary evidence of fraud or wi!lfol misrepresentation in a Schedule A appli· cation filed under §656. l 5 or a sheepherder ap·· plication filed under §656.16.

(ii) Documentary evidence submitted under paragraph (e)(2) of this section is limited to in­formation relating to possible fraud or willful misrepresentation. The DHS may consider this information under §656.31.

(2012 Edition]

20 CFR 656. t 2(b)

(f) Retention of documents. Copies of applications for permanent employment certification filed with the Department of Labor and all supporting docu­mentation must be retained by the employer for 5 years from the date of filing the Application /(Jr Permanenf Employment Certification. . § 65ci:i-1 su t;~-i1;;;;;;;;;;-11~~~i~'O<lTfications-!O·---··--~ applications. rn

a) Substitution or change to the identity of an alien beneficiary on any application for permanent labor certification, whether filed under this part or 20 CFR part 656 in effect prior to March 28, 2005, and on any resulting certification, is prohibited for any request to substitute submitted ailcr July 16, 2007.

(b) Requests for modifications lo an application will 1101 be accepted for applications submitted afler July 16, 2007.

656.12 Improper commerce an payment.rn 'ie following provision applies ) applications

fi d under both this paii and 20 FR part 656 in cff I prior lo March 28, 2005, an to any certifica·· tion ·suiting from those applicati ns:

(a) A1 )]ications for permanent labor ce1iification and ap ·oved labor certificatio1 ' arc not articles of commcr e. They shall not be o fcrcd for sale, barter or purcba by individuals or n!ities. Any evidence that an app ·cation for perm ent labor cetiification or an appro ed labor ccrti 1cation has been sold, bartered, or ! irchased shal be grounds for investi­gation under l is part and ay be grounds for denial under §656.2.4, rcvocati< n under §65Ci.32, debar .. ment under §65 31 (I),< ·any combination thereof

(b) An employer nust HJ! seek or receive payment of any kind for · lY ctivity related to obtaining permanent labor cc · ication, including payment of the employer's altor eys' fees, whether as an incen­tive or inducement l filing, or as a reimbursement for costs incurred n p paring or filirig a permanent labor cerlificatio appli ation, except when work to be performed b the alie l in connection with the job opportunity wo Id bene J · or accrue lo the person or entity makin' the payme1 t, based on that person's or entity's cs ablishcd busi ess relationship with the employer. n alien may pa his or her own costs in conneclior with a labor cer 'fication, including a( tomeys' ·es for representati n or the alien, except that wh re the same attornc represents both the a 1 ien a d the employer, such co ·ts shall be borne by the e iployer. For purposes of his paragraph (b),

112 72 FR 27903 (5/l7/07,(1fective7Jl6107). i u 72 FR 27903 (5/!7/07, e;Ui1ctive 7/l6/07).

35!

159

20 CFR 656.24(b )(3)

(3) The employment of the alien will not have an adverse effect upon the wages and working condi­tions of U.S. workers similarly employed. In mak­ing this determination, the Certifying Officer con­siders such things as: labor market information, the special circumstances. of the industry, organization, and/or occupation, the prevailing wage in the area of intended employment, and prevailing working conditions, such as hours, in the occupation.

(c) The Certifying Officer shall notify the employer in writing (either electronically or by mail) of the labor certification determination.

(d) [fa labor certification is granted, except for a labor certification for an occupation on Schedule A (§656.5) or for employment as a sheepherder under §656.16, the Certifying Officer must send the certi­fied application and complete Final Determination form to the employer, or, if appropriate, to the em­ployer's· agent or attorney, indicating the employer may file all the documents with the appropriate DHS office.

(e) If the labor certification is denied, the Final Determination form will:

(I) State the reasons fr)r the determination;

(2) Quote the request Cor review procedures at §656.26(a) and (b );

(3) Advise that failure to request review within 30 days of the date of the determination, as speci­fied in §656.26(a), constitutes a failure to exhaust administrative remedies;

(4) Advise that, if a request for review is not made within 30 days of the <late of the determina­tion, the denial shall become the final determination of the Secretary;

(5) Advise that if an application for a labor certification is denied, and a request for review is not made in accm·dance with the procedures at §656.26(a) and (b ), a new application may be filed at any time; and

(6) Advise that a new application in the same occupation for the same alien can not be filed while a request for review is pending with the Board of Alien Labor Certification Appeals.

(f) If the Certifying Officer determines the employer substantially failed to produce required documenta­tion, or the documentation was inadequate, or deter­mines a material misrepresentation was made with respect to the application, or if the Certifying Ofliccr determines it is approprialc for other reasons, the employer may be required to conduct supervised recruitment pursuant to §656.2 l in foture !Hings of

362

CODE OF FEDERAL UEGULATIONS (VOL. Jl)

labor certification applications for up to two years from the date of the Final Determination.

-(gy(f)~115fo")7C"ri1;ay= ~-cquest"recOi1sidc;~-;i~'li1· within 30 days from the date of issuance of the denial.

(2) For applications submitted after July 16, 2007, a request for reconsideration may include only;

(i) Documentation that the Department actually received from the employer in response to a re­quest from the CertiJying Officer to the em­ployer; or

(ii) Documentation that the employer did not have an opportunity to present previously to the Certifying Officer, but that existed at the time the Application for Permanent Labor Certification was filed, and was maintained by the employer to support the application for permanent labor certi­fication in compliance with the requirements of §656. !O(f).

(3) Paragraphs (g)(l) and (2) of this section notwithstanding, the Certifying Officer will not grant any request for reconsideration where the deficiency that caused denial resulted from the ap­plicant's disregard of a system prompt or other di­rect instruction.

(4) The Certifying Officer may, in his or her discretion, reconsider the determination or treat it as

~~est!~~"'~Jl.~;,~~,2§(a). ····-.. -.. :::c~""·-f656.26 Board of Alien Labor Certification ·· Appeals review of denials of labor ce~·tification. 122

(a) Request for rel'ieH1•

(l) If a labor certification is denied, if a labor certification is revoked pursuant lo §656.32, or if a debarment is issued under §656.3 l (f), a request for review of the denial, revocation, or debarment may be made to the Board or Alien Labor Certification Appeals by the employer or debarred person or entity by making a request for such an administra­tive review in accordance with the procedures pro .. vided in paragraph (a) of this section. In the case of a finding of debarment, receipt by the Department of a request for review, if made in accordance with this section, shall stay the debarment until such time as the review has been completed and a decision rendered thereon.

(2) A request for review of a denial or revocation:

112 45 FR 83933 (12/19/80), as amended by 52 FR J 1218 (4/8/87); 56 FR 54930 (10/23/91); 69 FR 77325 (12/27104, effectil'e 3128!05); ?'!. FR 27903 (5!17/07, ({(fective 7!!6/07) [revising (a)(!)-(3) & adding (a)(4) & (c)( I ) .. {3)).

American Immigration Lawyer:; Association

t t

I i I i l

' l I i ~

f I

I l I l

I l

I r

I I ' I

' f

I ! \ [ I

TITLE 20: EMPLO\

(i) Must be sent determination tc nied the applical

(ii) Must clear I certification det sough!;

(iii) Must set fo1 request; and

(iv) Must includ t.ion.

(3) A request fo1

(i) Must be sen1 Foreign Labor 1

the elate of the d1

(ii) Must elearl menl delenninat

(iii) Musl set fo request; and

(iv) Must inch Debarment.

(4)(i) With resp review, ~tatemci or the parties an !y legal argumc was within the- · labor cerlificatio

(ii) With rcsper determination, t de llOVO.

(b) Upon the rece Certifying Officer indexed Appeal Fil

(I) The Appeal order, must have ti mos\ recent docum numbered pages. 'T request filr reviev,, and copies of all tl'. nent parts and page which the denial w:

(2) The Certilyi1 File to the Board or Oll!ce of Adrninist NW., Suite 400-N,'

(3) The Certifyi the Appeal File to furnish or suggest Lahor Ccrti llcatirn documentation tha that was submittec

/2012 Edition}

160

February 21, 2014. New FAQ regarding notification and consideration of laid-off U.S. workers for PERM applications.

Asked Question (FAQ). This FAQ addresses how an employer is to demonstrate that it notified and considered !aid-off U.S. workers for the job opportunity listed on the ETA Form 9089. To read the FAQ, please click .IJ.t;U.' and scroll to the PERM I Recruitment Report subheading.

J. Jfow detailed docs the recruitment report hare to be with respcci to t!H~ lawfoli i.2!t: n.::!1\tcd reasons U.S. workers were rejc£.lli!.1

2. !Jow does an employer demoustrntc !Jrnt ii notified and considered laid-off U.S. 1vorkers for the job OJ)portunitv listed _on tl!£)sTA Form 9089?

1. How detailed does the recruitment report have to be with respect to the lawful, job­related reasons U.S. workers ·were rejected?

The employer must categorize the lawful job-related reasons for r~jection of U.S. applicants and provide the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity. NOTE: The Certifying Officer, after reviewing the employer's recruitment report, may request the U.S. workers' resumes or applications, sorted by the lawful job related reasons the workers were rejected.

NOTE: The Certifying Officer, after reviewing the employer's recruitment report, may request the U.S. workers' resumes or applications, sorted by the lawful job related reasons the workers were rqjected.

2. How does an employer demonstrate that it notified and considered laid-off U.S. workers for the job opportunity listed on the ET A Form 9089'?

As one condition of obtaining PERM labor certification, an employer must provide notice to and consider for hiring lJ .S. workers laid off by the employer during the six months preceding the filing of the application. 20 CFR 656. l7(k)(l). Such notice and consideration must be given to all employees laid off during this period who worked in the occupation in the area of intended employment for which certification is sought or who worked in a related occupation ("potentially qualified U.S. workers"). 20 CFR 656.17(k). A related occupation is any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought. 20 CFR 656. l 7(k)(2). An employer must maintain and, if requested, submit documentation establishing that it notified and considered all potentially qualified U.S. workers it laid off during the six months before filing the application. 20 CFR 656. I 7(a)(I ), (3). The employer must include the results of its notification and consideration of these laid-off U.S. workers in its recruitment report. 20 CFR 656:17(g).

AILA InfoNet Doc. No. 14022460. (Posted 2/24/14)

161

As a result of auditing employer compliance with the requirements relating to laid-off workers, OFLC has determined that many applicant employers are applying section 656.17(k) in a straightforward manner, i.e., contacting their laid-off workers who are potentially qualified for the job covered by the application at the time the employer begins inviting interested candidates to apply for the job (about the time a job order is placed or it is advertised in a newspaper) and considering for hire those laid-off workers that apply for the position. Some audits, however, have revealed noncompliance by some employers; these employers have construed section 656.17(k) to only require that they inform workers at the time of their layoff that the employer may have future positions for which the worker may have an interest and inviting the worker to monitor the employer's job postings and apply for such positions, rather than the employer taking it upon itself to notify and consider the laid-off workers, as required by the regulations.

This misapplication of the requirements established by section 656.17 will result in the denial of an application. OFLC is issuing this guidance to prevent other employers from following this approach in the mistaken belier that it satisfies the regulatory requirements.

Where a U.S. worker who is potentially qualified for the job opportunity has been laid off by an employer during the six months preceding the application, the employer must directly notify the worker of the job opportunity and consider the worker if he or she applies for the job. The employer must make a reasonable, good-faith effort to notify each of the potentially~qualified laid-off workers that a relevant job opening exists. Notification should be provided by mail, fax, or e-mail, using the last known contact infbrmation for each worker. The employer must provide each worker a full description of the specific job opportunity and must invite the worker to apply for the position fix which he or she is potentially qualified.

At the time a worker is laid off, an employer should secure from the worker appropriate contact information to permit the required notification and consideration. The employer must inform the worker that it is his or her responsibility to apprise the employer of any change in the contact information. The employer may inform the worker that he or she may decline to receive or, upon the worker's later request, discontinue such notification. Where a worker declines to receive such notification, the employer will be deemed to have met its notification and consideration obligations. Where a worker requests that notification be discontinued, the employer wiU also be deemed to have satisfied its notification and consideration obligations for the remainder of the six-month period.

An employer who files multiple labor certifications can satisfy its responsibilities under the regulation by noti(ying each laid-off worker (in the manner chosen by the worker) not less frequently than once monthly that a list of current relevant job openings is maintained electronically on a website operated by the employer. Where an employer chooses this alternative, the website must list or allow the worker to easily search for all the relevant job openings. Where a list is used, job openings must be identified by title and location and provide a hyperfink through which the worker may obtain a detailed description oC and the minimum requirements for, each position and apply f()r the position if he or she so chooses.

AILA InfoNet Doc. No. 14022460. (Posted 2/24/14)

162

Simply informing a laid-off worker to monitor the employer's website for future openings and inviting the worker, if interested, to apply for those openings, will not satisfy the employer's regulatory obligation to notify all of its potentially qualified !aid-off U.S. workers of the job opportunity.

An employer must maintain documentation showing that it has met its notice and consideration requirements, including copies of all relevant letters, e-mails, faxes, web pages (including those listing details of the relevant job openings and applications by !aid-off workers for those openings), and other contemporaneous documents that show when and how notice and consideration was given. Jn addition, an employer must obtain and maintain written documentation that a laid-off worker has declined to receive notices, requested discontinuation of the notices, or refused to give or update contact information.

February 21, 2014

AILA InfoNet Doc. No. 14022460. (Posted 2/24/14)

163

OMS Approval 1205-0451 Expiration Date: 08/31/2014

Application for Permanent Employment Certification

ET A Form 9089 U.S. Department of Labor

Please read and review the filing instructions before completing this form. A copy of the instructions can be found at http//y.;ww. forgjgol@orcert.doleta.gov/pdf/9089inst. Rdf

Employing or continuing to employ an alien unauthorized to work in the United States is illegal and may subject the employer to criminal prosecution, civil money penalties, or both.

1 .. B·.-··Tli.CiiC8te th·e·· previous SWA ot iOCai--OfriCe· C3Se'-nlnTI be·i· ·c)·f~ ·ii··r10t 3V2iia-blB·;··s-pecify sta·te-W1iere case was , __ .c_:i_~igJ.t~?._l!Y..!iled_:_ _______________ .. __ ,, __ .. __ -·------------.. ····-------------- ·------------------···--.. -------- _____________ -----------.. ····--·--------------····

B. Schedule A or Sheepherder Information

C. Employer lnfonnation (Headquarters or Main Office)

name

------------------------------------~---------------·---------------------·---------------------------·--.--------------~~--

Address 2

State/Province Country Postal code

··--··-····-······--····-·--···- .. ·~···"·'' ··'··- --- ·······- . ··············---··•·¥'""'"~

6. Year commenced business

··········-··-··--·,··· -··-···. ····-·-·-····-"

i l. FEIN( Federal Employer Identification Number) 8. NAICS Code

D. Employer Contact Information (This section must be filled out. This information must be different from the agent or attorney information listed in Section E).

1. Contact's last name First name Middle initial

State/Province Country Postal code

4. Phone number Extension

This lo Page I of

FT;\ Case Number:

164

OMB Approval 1205-0451 Expiration Date: 08/31/2014

Application for Permanent Employment Certification

ETA Form 9089 U.S. Department of labor

E. Agent or Attorney Information (If applicable)

name

name

3. Firm EfN

5. Address 1

2

country .. ·----· ···· --- ..... PosiaTcoCie-·-··

F. PrevaHing Wage Information (as provided by the State Workforce Agency)

2. SOC/O*NET(OES) code

3. Occupation Title 4. Skill Level

s Prevailing wa9e--···---------·re·r:--··1cFioose.oniy·0;1eT-········--·-· .. -···----·--·---........ ______ .......... - .................................. ..

.......... ! _____ .. _____ .. ___________ U!.~~:- ....... D ... ~~)2'~ ... -.... D.~i-we_e~.'.~ ___ O M°-~-·-0 vea_r -· 6. F'revailing wage source (Choose only one)

D OES 0 CBA 0 Employer Conducted Survey 0 DBA D SCA 0 Other ... 6-A~-i'f o\h-eris-iilcii.caieciinq\:les-tion-ifspecify: .. - .................................. -·· ............................. ----------·· ·~ .. ---

7. Determination date 8. Expiration date

G. Wage Offer Information

From·. rer: (Choose only one) $

To: (Optionz:il) $ 0 Hour 0 Weeh []Bi-Weekly 0 Month 0 Year

H. Job Opportunity Information (Where work will be performed)

2. City State Postal code

4. Education: minimum level required:

QNone 0High School OAssoc1ate's OBachelor's _[J_~~-~t_:~:~ ....... Or:.J~~to~'.~ ... Qother --4-~'A·.·····ff··011:;;;;nsfrldica!eci'Tr1Ciuesii<;11·:4:··;;1;8;::11y·ih88du(;;;1ion .. i·E;q;;·~e;r·

ETA Form 9089 This

165

OMB Approval: 1205-0451 Expiration Date 08/3112014

Application for Permanent Employment Certification

ET A Forrn 9089 U.S. Department of Labor

H. Job Opportunity Information Continued

5-B. 111CiTcate-ffie-fielCf0TTraii1in9 ______ ----·· --- -----------------

EC ls experiei1ce 1i1"ffie"]o-b0ite"ieci""r8C:iuiredTor"ii1e-job7 6-A. If :y,;3: f\Ufnber of r11011tlis experieli·z;e-req;:~Tieci:--

0 Yes D No

OYes

···-···--·· 0 Yes

8-A. If Yes, specify the alternate level of education 1·equired:

0 None 0 High Schoof D Associate's []Bachelor's D Master's D Doctorate 0 Other -s-s ---,Tofrie-r is indica1-e·a--;n·q-Lies!i0n s-.A.7nciicate -1f1-8aite.rnai6-ievefof"e-duca.iTari-r:e-CiliireCi:-------- ----------~---·-···-

9. Is a foreign educational equivalent acceptable? CJ Yes

1 ci.-·1;;·e-xpe-r1e-nce···rn·-a-n··a!tern-ate occup-afro-nacce-pia-6ie_? ___ i-o~"A···-iTYe-s:-·;;LirnFeroin:1oi1i"hs-·ex-perien-ce-Ti;-·aiie-maie occupation required:

OYes D No

1 o- n.--TcieniirY--ilie)ob tiiTeOTii1eaecepiiliJleaiternaie-occLiP-aiio;1:

12 Are the )obop.portunity's require.me.nts normaffortfie occupation?

If the answer to this question is No, the employer must be prepared to provicJe documentation demonstrating that the jo/J requirements are

0Yes []No

_______ "._lJF_E_?_l"ted /J):'__f?.!:!Sil1(!SS IJ__'f__CeS_ilJY~ ------·-·-------·-·· .. . ........ --···· . ------

I..

13. Is knowledge of a foreign language required to perform \I"\(" job duties?

If the answer to tl1is question is Yes, the employer must be prepared to provide documentation demonstrating that the language requirements

OYes

... il.r..e. ___ f;!:!PP.9.rt.'!.q}!y__~-~1~5.!!~~<;__~!l..'!.'?'!.l>..'iJ!.L .. ___________ __ --······--········· ·--·-···-----···---- -···· --.--------------····--------···---------·· 14. Specific skills or other requirements -- If submitting by mail. acid attachment if necessary. Skills description must

begin in this space.

ET/\ Fnnn '}089 This Ccrtilk;11ion is v;llid from 10

l:T/\ Cn~c Number: 166

OMl3 Approval 1205-045·1 Expir;~t1on Date 08/31/2014

Application for Permanent Employment Certification

ETA Fom1 9089 U.S. Department of Labor

H. Job Opportunity Information Continued

15 . boes'thisapplication involve a job opportuoity !hat includes a combination of occupations?

----~-~··-······~·----

16. isi'ii_e.f.)osi.iio-r1;cieii.iifieciiii.iiilS.ap.r.l~·c;21iionb'eing .. oif(;;;;;;1 to the alien identified 111 Section J?

17 Does the job require the alien to live on the employer's premises? OYes ONo

~· ..... ··- ·- .......... , __ ,.,. ____ ,,

rn .. Is tl'ieapj)licaiioi)' for .. ~1"1'1ve=ii1i1ol1sei1olddomestic service worl1er'I []Yes D No

18A If Yes, have the employer and the aiien executed the reqtlired.e1)1[:1oy;i)e.nt 1:0~~:~--~----- ~~.--............... .. . . . EQD~.9.c:t.ci.i:i9 .. bci.~.!!1.~.E'..Q121QY.8..r_££.O._l{id ed 5!_ C0£2'.QL!.t_~.8.. .. ~£!:11I!_lCt !QJt1~_.£1li~_1_1?_

L Recruitment Information

a. Occupation Type- A/J must complete this section.

1. Is ·fr1~s·-app11·cat1on-fOr-·a-·i;·roteSSio 11 al occu patioll~·-other·fr1·a n··acoi ~egeor--··--···-········ university teacher? Professional occupations are those for which a bachelor's degree (or equivalent) is normally required.

2. Is this application for a college or university teacher? If Yes, complete questions 2-A and 2-8 below.

0Yes ONo

Yes 0No . -·-·--·----·--·-··-···-··"'"'"' ............ ·+-··==-------~---·-···~--.. - .............. ......,

... 2~r;·~-Did ... you select the candidate using a competitive recruitment and 0 Yes 0 No

.S.§.1§..~i.Q!.l_fl.~()~_S.§.L.... ...... ---------·-.. ·-~----·-·······- -·· ··---·---------·· .. ····· .............................................. -----·-·------·-···--·-· .. . 2-8. Did you use the basic recruitment process for professional occupations?

b. Special Recruitment and Documentation Procedures for College and University Teac/1ers ·· Complete only if tlrn answer lo question J.a.2-A is Yes.

3.

4. Name and date of national professional journal in which advertisement was placed

c. Professional/Non-Professional Information - Complete this section 1111/ess your answer to qiwstfon B.1 or l.a.2-A is YES.

i 6 siart cia\e forih8.swA: job order 1

7. 1:nJ date foi-the SWA job order J fs···-. ·-· ............................................................ - .................. __________________ ........................................ ·------·----------·-....... _ ....................... . Is there a Sunday edilion of the newspaper in the area of intended employment? D Yes 0No j

9. Name of newspaper (of general circulation) in which the lirst <Jdvertisement was placed:

ici oaieorfi.rsTadv8rtise1ne11t ideiitifiecfin question 9:

11 Name of newspaper or professional journal (if applic21blc) in which second advertiserrn;nt was placed

Newspaper 0 Jourmil ......................................... ;~,~~ .......................... .

Fl,\ l'onn 9089 This Ccrlitlc:11i1rn i> vnlid from

l·:l.1\ Case Number:

167

OM13Approval 12050451 Expiration Date 08/31/2014

Application for Permanent Employment Certification

ETA Form 9089 U.S. Department of Labor

I. Recruitment Information Continued

d. Professionilf Recruitment Information - Complete if tlw answer to question J.a.1 is YES or if t11e answer to

13. oatesadvertiseci-aTjob fair ·· ___ , .. __ J'.'!:?'.~.is..Y~~::i5~f~~Pii~~~!~a~~~~~~£[11}~gc;iiis.: ... From: To: From: To:

·fr, Dates posted oii ernpioyer. website--·· . 16: Dates adver1(sectwiti1 tradE)orprofess.ion-afoi:ganiza.ffon From To From: To:

17. oates iisfocr;:;;rn:;r06 searcr; .. ;;v;;tisiie-.................... "Ti'Cl5aies.ifs!e<i.iNlffi·;;;:~;;f;:;-;:;;~;;;1;;y:r;;;;;;;d;ri;1-- ··· · ---····· --From: To: From: To: ... 1-9~-oaiesacive 11ise<Twiffi_e .. 1n"P!Oy-ee .. ;:;;;ferra1 iJr09ra;:n--20:·15ate_s.acivertisecI"witl1carnP'Cis .. rlace·,:r1e·;1c0rnc;;;··-·--·-·····"--F rom: To: From: To:

--2-1-:·-~oa-fe-s-·aav·e11~is·ecf·w1·t·i1~1-oca"i··o·r··et·hn1cne·ws·pap·er· ·- -· ·22·:· oa-te·s·· ·a2ver11se·d-w1tr1··-racfi-o-·or··1v-a-ds···-M- ··-·-·-·-····-·-·-·---·-·-·-··-·-·--To:

e. General Information - All must complete this section.

···~·~···.·:~tt~.;~ge~~p-1oyerreceivecTl}ayrr1e~~ioEinykfilci·forthe.submission·0rtf1·;;;· ···· ·l D_Ye~······[jNo 23 .. A, If Yes. describe details of the payment including the amount, date a 1d purpose of the payment :

····24 · · Has.ffie.har9ainln9. rer.lreseniaiive iar worker&in.ihe ... o .. ccLiria!i or1Ti1.wFi1ci1'ti18 .. - ·-1 ·· alien will be employed been provided with notice of this filing at least 2.0 days D Yes 0 No ~ut r1gt_111_()!f:)Jl1<J.n.. 18-Q.9<.JY~.~!3.f.()1~~-lh~ c:J?.tf:)th,f:).<JP.Plic:;9tigr1Js. f,ilf:)c;l.L ......................... .

... 25. If there is no bargaining representative, has a notice of tllis filing been posted for 10 business days in a conspicuous location at the place of employment, (~nding at least 30 days before bu! not more than mo days before the date the

' ... <ipplic;ationis filed? 1 ·2G Has the ernploym l'lad a layoff in the area of intended employment in i occupa\1011 involved in ll1is application or 111 a related occupation within the six

. months immediately prececJing tile filing of this application? ... .. ... . 26·A It Yes, were the laid off US. workers notified and considered for the job

...... Of)tJ()rlun1ty .. f()r. wh1c;h ge~tifica~i9_11j~ ~(JL1gl1t7 .

-__ ......... ·-·-·-·-··--~···· """'"'""""'"' ""'" ... ..

[]Yes []No

OYes CJt-Jo J. Alien Information (This section must be filled out. This information must be different from the agent

or attorney information listed in Section E).

1. Alien's last narne Full middle name

Address 2

3. City Country Postal code

9. Alien registration 11[!1nbe_r.(Atf.j 10. Alien admission number (1-94)

.... T-r-i~ dLica1ia11 i1i9ii(~:5Tievelad1.ic~vecirefevai1i 1o·tt1·0-·requesteli .. 0<;c;ti!)iition: ·· ·· -·

[] None 0 Hi~~h School 0 Associate's [_] l~achelor's [] Master's 0 Doctorate [] Other

... , ... ''' J

l'::T;\ Form 9()89 Th is Ceni lkmio11 is v'1lrd from ...... 10

168

OMB Approval: 1205-0451 Expiration Date: 08/31/2014

J. Alien Information Continued

Application for F'ermanent Employment Certification

ETA Form 9089 U.S. Department of Labor

. ., ... ---·-·--·-.. -·---·-.. ·-·-·----------···-···-······ .. --·- -·-··- -· ··-· .. ···--··· .. 11-A. If Other indicated in question 11, specify

...... ··············································--········'·····

13. Year relevant education completed

Address 2

16-city-----------------------------·--·-··------------.. --stat~l'i''rovin(:,;---------------- counlr;..-··--·-·- ·····-··- ........ P.o-sla'icocie--

18. 6oes-iEe-a-iTeri-i1a~e ... ifi·e--e·x:;;·erie;1c:-e·;i;;··retiLlir8ciia_r_ii1;;;;:~;q\);;,si'eciToF­opportunity indicated in question H.6? 0Yes 0No DNA

-~~~~~~-+-~-

19. Does the alien possess the alternate combination of education and experience as indicated in question H.8? 0 Yes 0No DNA

--··------•-----···-----·------·-·-·----···-"·•··•-···•·-••••~•-•••·-••·•-•·•--~ ·"--• «•••~,.•••••-.. -~·-~•·•--•·--~·-••rn.••'"'-•·-~~~---

••-20-·-ooes the alien have the experience in an alternate occupation specified in question H. 10? 0 Yes D No D NA

.• ,.,_~N---•~-~••••-•rr -. .. _. • .,_.n •-••·----•·---•••••---·•-••-••--••-•-••••-•••••••·>~'"•

21 Did the alien gain any of the qualifying experience with the employer in a position substantially comparable to t!1e job opportunity requested? 0Yes ONo DNA

·------------------ --------1 . ""'""' "' ,..,, .......... _.._.,,"'"·"' ... , .. ,, ...... ._ .. , .. ______ ····---··--·-------~----·-22. Did the employer pay for any of 1he alien's education or training

necessary to satisfy any of tile ernployer's job requirernent<; for tll;s position?

K. Alien Work Experience

. I I

.......... J

List all jobs the alien has held during the past 3 years. Also list any other experience that qualifies the alien for the job opportunity for which the employer is seekinu certification.

a. Job 1 ................... _, ___ .. __ 1 Employer name

. ---·-··· ... ····------·-· ....... ·-········ ·-· -........ . ...... ············-·····---~· . ·········--··-··-····----·-····-·····-···--.. ----- ······-··--·--- ___ ,,. .... ~, 3. City State/Province Country Postal code

5. Job title

6. Start date 7. End date

ori next page

lo. Page 6 of

l·:T/\ Case Number:

169

OMB Approval 1205--0451 Expiration Date 08/31/2014

Application for Permanent Employment Certification

ET A F onn 9089 U.S. Department of Labor

K. Alien Work Experience Continued

~). j(jl)(j'(~i-ail'8'((}Li'i'ies .. pe.rformed~-useoft-oi:ils:--1naci)ines, eq(;ipment, skTi1$ .riLlalifications, ceri1iications. licenses. etc. Include the phone number of the employer and tl'\e narne of the alien's supervisor.)

L. Alien Declaration

I declare under penalty of perjury that Sections J and Karo true and correct. I understand that to l<nowingly furnish false information in the preparation of this form and any supplement t/1ereto or lo aid, abet, or counsel another to do so is a fe(ieral offense punishable by a fine or imprisonment up to five years or both under 18 U S.C. §§ 2 and 1001. Other penalties apply as well to fraud or misuse of ET A immigration documents and to perjwy with respect to suc/J documents under 18 U.S.C §§ 1546 and 1621.

in addition, I further declare under penalty of perjury tlwt I in/ond to accept t/1e position offered in Section Hof this application rt a labor certification is approved and f am granted a visa or an adjustment of status based on this app/1calion.

2 Signature Date signed -~~:"""'°"'~== ·-1 1. Alien's last name First name

Note··· The siqnature and date signed do not have 10 be filled oul wl~en electronically submittino to tl;e Uepar11nent of Labo1 for processin9, but must be complete when submitting by mail. If the application is submilted electronically. any resulting ceriific<ition IVIUST be signed immediately upon receipt from DOL before it can bn sut)mitted to USC!S for final processin9.

M. Declaration of Preparer

, ... -. --- -········----·----·-------·-------·--····-------------··--'"- --.--------.. --------~···-···-~··-··_. .. , ... ,~,···- . l" Was the application completed by the employer? lf No, you must complete this section.

......................................................................... _____ ................................... ·--- ...................... -~ ....... -- -[]Yes []No

I ..I

I hereby certify that I have prepared this applicatro11 at the direct request of the employer listed i11 Section c and that to tlie best of my knowledge tlie information containec/ lwrein is true and correct. / 1mclers/ancl t!Jat to knowingly furnish false information in Ille preparation of l/Jis form and any supplement thoreto or to aid. ab(1/, or counsel anotnor to c/o so is a fee/era/ offense punisha/Jle by a f1iie, impnsonment up !o five years or /Joth under 18 U.S. C. §§ 2 and 1001. Other µonalties apply as well to fraud or misuse of ETA immigration documents und to pe1jury with respect to such dowments under 18 U.S. C. §§ 1546 and 1621.

name First name

Note -- The signature and d~te sifine<J do not have to be filled out when electronically submittino to U1t; Deparlrnent of Labor for processing. bul must be complete w!1en submitting by mail. If l11e appfication is sutl1l"itted electronic;illy. any resulting C(fftification MUST Ix' ~wined imnred1i1/cly upon receipt frnm DOI. l)ufo1e it can Ile su!linitt(!d to USCIS fc1 final prowssinq.

l·:Ti\ Fnnn 9089

!-.T1\ C1sc~ Number:

170

OMB Approval: 1205~0451 Expiration Date: 08/31/2014

Application for Permanent IO:mp!oyrnent Certification

ETA Form 9089 U.S. Department of Labor

N. Employer Declaration

By virtue of my signature lwlovv. f HEREBY CERTfFY l/llJ followmQ condilio1:-> of employment

1. The offernd wage equals or exceeds the prevailin~) wage and l will pay at least the prevailing wage. 2. The wage is not based on commissions, bonuses or other incentives. unless I guarantees a wage paid 011 a

weekly, bi-weel1ly, or montl1ly basis that equals or exceeds the prevailing wage 3. I have enougl1 funds available to pay the wage or salary offered the al en. 4. I wil! be able to place the alien on the payroll on or before the date of tne alien's proposed entrance into the

United States 5. The job opportu111ty does not involve unlawful discrimination by race, creed, color, na\ional origin, age, sex.

religion. ha11d1cap, or citizenship. 6 The job opportunity is nol

a. Vacant because the former occupant is on strike or is being locl1ed out in lhe course of a labor clispute involving a work stoppage; or

b. At issue in a labor dispute involving a work stoppage. 7. The job opportunity's terms, conditions, and occupational environment are not contrary to Federal, state or local

law. 8. The job oppor1unily has been and is clearly open to any U.S worker. 9. The U.S. workers who applied for the job opportunity were rejected for lawful Job-related reasons 10. The job opportunily is for full-lime, permanent employment for an employer other tlian the alien.

I hereby designate the agent or attorney identified in section E (if any) to represent me for the purpose of labor certification and, by virtue of my signature in Block 3 below, I take full responsibility for the accuracy of any representations made by my agent or attorney.

I declare under penalty of perjury that I have read and reviewed this application and that to the best of my knowledge the information contained !1erein is true and accura1e. I understand that to knowingly furnish false information in tile preparation of th1~s form and any supplement thereto or to aid, abet, or counsel another to do so is a fee/era/ offense punishable by a fine or imprisonment up to five years or both under 18 U.S. C. §§ 2 and 1001. Other pena/fies apply as well to fraud or misuse of ET A immigration documents and to perjury with respect to such documents under 18 US. C. §§ 1546and1621.

Note ... The signature mid date signed do not have to be filled out when electronically submitting to the Dep<1r1rnent of Labor for processing, but must be complete wt1en submitting by mail. If t1e application is submitted electronically, any resulting certification MUST be signed immecfiately upon receipt from DOL before it can be submitted to USCIS for final processin9

0. U.S. Government Agency Use Only

Pursuant to the provisions of Section 212 (a)(5)(A) of the Immigration and Nationality Act, as amended, I hereby certify that there are not sufficient U.S. workers available and U1e employment of the above will not adversely affect the wages and working conditions of workers in the U.S. similarly employed.

Tl1is Certification is valid from to

Date Signed

Case Number Filing Date

ET/\ l'onn 9ll89 This Cl~rtilicmion i~ v~did frotn ·.o "" ···"· .......... ~··· ..

171

OMB Approval 1205-0451 Expiration Dale 08/31/2014

P. OMB Information

Application for Permanent Employment Certification

ET A Form 9089 U.S. Department of Labor

Paperwor/\ r:?ecfuction Act Information Control Number ·f 205-0451

Persons are not required to respond to this collection of information unless it displays a currently valid OMB control number.

Respondent's reply to these reporting requirements is required to obtain the benefits of permanent employment certification (Immigration and Nationality Act, Section 212(a)(5)). Public reporting burden for this collection of information is estimated to average 1 Y. hours per response, including the time for reviewing instructions, searching existing cJata sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate to the Division of Foreign Labor Certification' U.S. Department of Labor' F~oom C4312 * 200 Constitution Ave., NW' Washington, DC' 20210. Do NOT send the completed application to this address.

Q. Privacy Statement Information

In accordance with the Privacy Act of 1974, as amended (5 U.S.C. 552a), you are hereby notified that the information provided herein is protected under the Privacy Act. The Department of Labor (Department or DOL) maintains a System of Records titled Employer Application and Attestation File for Permanent and Temporary Alien Workers (DOLIETA-7) that includes this record.

Under routine uses for this system of records, case files developed in processing labor certification applications, labor condition applications, or labor attestations may be released as follows: in connection with appeals of denials before the DOL Office of Administrative Law Judges and Federal courts, records may be released to the employers that filed such applications, their representatives, to named alien beneficiaries or their representatives, and to the DOL Office of Administrative Law Judges and Federal courts; and in connection with administering and enforcing immigration laws and regulations, reccrds may be released to such agencies as the DOL Office of Inspector General, Ernployrnent Standards Administration, the Departrnent of Homeland Security, and the Department of State.

Further relevant disclosures may be 1m,de m accordance wilh the Privacy Acl and under the following circumstances in connection with federal litigation; for law enforcernenl purposes; to authorized parent locator persons under Pub. L. 93-(·)47: to an information source 01· public authority in connection with personnel, security clearance, procurement, or benefit-related matters; to a contractor or their employees, grantees or their employees, consultants, or volunteers who have been engaged to assist the agency in the perforrr1ance of Federal activities; for Federal debt collection purposes; to the Office of Management and Budget in connection with its legislative review, coordination, and clearance activities: to a Member of Congress or their staff in response to an inquiry of the Congressional office made at the written request of the subject of the record, in connection with records management; and to the news media <:md the public when a matter under investigation becomes public knowledge, the Solicitor of Labor determines the disclosure is necessary to preserve confidence in the integrity of the Depr:irtment, or the Solicitor of Labor determines that a legitimate public interest exists in the disclosure of information, unless the Solicitor of Labor determines that disclosure would constitute an unwarranted invasion of personal privacy.

El:\ Fonn 91.1.~') ......... 10

172

Addendum

H. 14. Specific skills or ott1er rt"quirmnents

--·-·---~··----~-·~·····-·-------· E'f ,\ h>nn 'i08') rills ('<~n1!'1ca11on is valid frotn .......... 10 Pag~ or

173

{ k) /111 o//,

( l} li'thc-rc· !1::1s h<;.l~n :1 lay,nllby the cntplo\L't· ;ippli;.:(J:U i:~ the :~:-c1 a t:!'intl~nded einplo.yincnt

withill (J lllOllll\s ur f'i!ing <111 applicatiull ill\llh mg the tll'.Cllj)<l!lOll Jell' which Cel'tificatiOll

is snught or i11 ~' n.~bitcd occupi:llion. !he L~n1p!~~.\cr !!Hh! dt~cu!nC!H i! h~ts 1H1tif!ed and con:-;itkTcd :d I poil'lll iii 1 ly lJWl Ii ficd 1:1 id l) If ( l.'lll pit)\ l'I ;q1r I il·:111l) l ! s \\ orkers or I he jnh oppo1·1u11ity il\\nlvcd in 1hc :1pplic.11io11 :111tl ilic- 1c:,1ilh ,1[ tlK 11,1til1c:1i1llll <111d

co1isidcrafion. A lwmffsii1ill be cn11:;idcrnl ,11·1_1 111,,du1Hilr\ ~q1araii,rn nl'onc or mrnT

employees wifh,H1t c:iusc or prejudice.

(2) For !he purposes of paragraph (k)( I) or this St.'clil)ll, il reined OCCllpillion is any

occupation that requires wrnkcrs 10 perforlll a maj,1ri1v oi the essential duties involved in the nccupation frir which cenillcaticrn is suught.

20 C.F.R. § 656. I 7(f) - Basic Labor Certification Process; Advertising Requirements

(I) Advertising i'C(/lfireml'n/s. Advertiseme11ts plm;cd ill newspapers or gericral circulation or in prnfossional journals before filing the Applic<llion klr l\~rrnancnt Employment Certification must:

( l) Name lhe employer;

(.')Direct applicants to report \lt send rcs11mc;;. il\ ;1pproprinlc' 1·or the occupation, to the c111ploycr:

(\) Pr(ivide a description of the vacancy specilil: c111H1gh to nppris<:: tk l.l.S. vvorkers of' tile job opponunity for which certificntion is sought:

(>:l) Indicate the geographic a1·ea of cmploymerlt 1vith enough :;pccillcity tn apprise applicants of' any 11-;ivcl requirements illld Whl~rc ilpplic:lllh 11 ii! like!:- lww J\) r·l~side lo pc1·fonn the job oppmt11ni1y:

(6) Not contain any job requirements or d11tics wl11ch t:;.;cct:d the job r·l'.(jlliremen1s or duties listed on the ETA Form 9089; and

(7) Nol contain wages or terms and conditions ur L~rnploymcnt thnt nre kss favornble than those offered 10 !he alien.

20 C.F.R § 656. Hl(d)(l)(ii) ,_Basie Labor Certification Prncess; General Instructions

(ii) If there is no such bargaining representative, by posted notice lo lhe employer's employees at the racility or location of the cmployrncnL The notice must be posted !'or al

least 10 consecutive business days. The not ice rnu:-;t he dc;1rly visible and unobstructed while posted nml must !.w posted in conspicuous pl<1n's \·vllcn.: ilw LT11ploycr's U.S. vvod<('.rs crn1 readily rend 1he posted notice on their \VilY 10 or from their pince or

174

EMPLOYMENT AND TRAINING ADMINISTRATION, U.S. DOL

OFFICE OF FOREIGN LABOR CERTIFICATION Permanent Labor Certification Program - Select Statistics, FY 2014

-Review of Applications Certified FY 2014TD

33,145 17,671 15A74 -10%

Processing Status of Active PERM Applications

58,530 Applications remaining as of 3/31/2014

Certified 26,201 9,072 17, 129

Denied 2,479 874 1,605

Withdrawn 1,885 949 936

Cumulative numbers for the fiscal year to date will not necessarily reflect the sum of the quarter numbers due to changes in case processing status. These numbers may not match the numbers on previous reports due to changes in case processing status.

• Advanced Degre<il is defined as Master's and/or Doctorate Degree

All fjqurns are rounrted and not audii§d

l:•_, .·.:_ -·-.:•.

Top 5 Occupations (O*Net Job

Family)

--~-------

Top 5 Work Site States

,_____

Top 5 Industries

(NAICS Code by Industry)

Top 5 Visa Classifications

Top5 Countries of Citizenship

·-Minimum Education

Requirements

-

(% pf~9~?!.Y~rtifl.~.fY:g9l4) ·: ...•. · .... -:::.-::; ... '.':. ... · ....

Computer and 14,933 57%

Mathematical e----·------~-------~-- ~--~-

.......... _____ Architecture and

2,779 11% Engineerin_g__~----------~v--Management 2,207 8%

--~

Business and Financial 1,730 7%

Operations Education, Training, and

1,537 6% Library --California 5,965 23%

Washington 2,355 9%

Texas 2,196 8%

New York 2,103 8%

New Jersey 1,976 8%

Professional, Scientific, 11,394 43%

and Technical Services Information 3,811 15%

Manufacturing 3,292 13% -- ~..,..,,_,.....,......_..

Educational Services 1,935 7% e-------· --Finance and Insurance 1,554 6%

H-18 21,822 83%

L~1 1,311 5% ··-·--...-..-..... ~,.,,...,

Blank 840 3%

F-1 670 3%

Parolee 345 1% -India 14,539 55%

China 1,831 7%

Canada 1,356 5%

South Korea 1,089 4%

Mexico 684 3%

Advanced Degree 14,280 55%

Bachelor's 10,056 38%

Less than Bachelor's 729 3%

Other 1,136 4%

AILA lnfoNat DJc. No_ 14041440. (Posted 4/14/14)

175

EMPLOYMENT AND TRAINING ADMINISTRATION, U.S. DOL

OFFICE OF FOREIGN LABOR CERTIFICATION Permanent Labor Certification Program - Select Statistics, FY 2013

-·-·-· Applications Received Review of Applications Certified FY 2013

%

72,462 17,059 19,604 17,571 18,228 4%

Processing Status of Active PERM Applications

Sponsorship /BE 1%

72,462 Applications received as of 9/30/2013

•.•..••. : ;L,~-L} .. ; f\ppJ i~~t~p~§. 1,~r9,9:~$§~~' .. CX\~.-, ?>··· ·.···· ... }~~t~'tn\J:~~iipn ' py\> 'i.iji1'' ' < Ci~:{'. j;'.':~$;·;·;·;· r:· at4'''.'. Certified 35, 188 12,103 9,021 6,714 7,350

Denied 4,326 961 1,266 1,004 1,095 --·---·~· ~-~-~-- ·~ .... ~.............._ ....... ---

Withdrawn 3,077 679 709 745 944

Cumulative numbers for lhe fiscal year to date will not necessarily reflect the sum of the quarter numbers due to changes in case processing status. These numbers may not match the numbers on previous reports due to changes in cast~ processing status.

• Advanced Degree is defined as Master's and/or Doctorate Degree

All figures are rounded and not audited

Top 5 Occupations (O*Net .Job

Family)

Top 5 Work Site States

-·

Top 5 Industries

(NAICS Code by Industry)

--

Top 5 Visa Classifications

Top5 Countries of Citizenship

Minimum Education

Requirements

(% of total certified FY 2013) .

Computer and Mathematical 19,892

Architecture and Engineering 3,932

Management 2,955

Business and Financial 2,127

Operations Healthcare Practitioners and

1,720 Technical

California 8,278

New Jersey 3,241

Texas 2,935

New York 2,726

Illinois 1,521

Professional, Scientific, and 16,521

Technical Services

Manufacturing 5,554

Information 2,914

Educational Services 2,186

Finance and Insurance 1,978 ·-

H-18 29,306 .~~--........ ------·

Blank 1,552

L-1 1,299

F·1 816

Parolee 655

India 20,925

China 2, 135

Canada 1,563

South Korea 1,406 ·-·

Philippines 928

Advanced Degree 18,630

Bachelor's 13,498

Other 1,385

Less than Bachelor's 1,675

57%

11%

8%

6%

5%

24%

9%

8%

8%

4%

23%

8%

4%

3%

3% --~-

83%

4%

4%

2%

2%

59°/o

6%

4%

4%

3%

53%

38%

4%

5%

176

Availability of Immigrant Visa Numbers for May, 2014

By: Allen E. Kaye

Fal'llily.sp<>11!lored categories .. · .. .... .·.·· . . · ....... ·· ... .. .. .. . . . · ..

All chargeability China areas except the (Mainland India Mexico Philippines countries Born) separately listed

-·

F1 Unmarried Sons & Daughters of U,S. 08 MAR 07 08 MAR 07 08 MAR 07 15 NOV 93 01 FEB 02 citizens _,, ____ --- - ·- -··· .. ----- ·----·-···-~---~ --... - .. --·---·

Spouses & Unmarried Children of F2A Permanent Residents - Subject to Per 08 SEP 13 08 SEP 13 08 SEP 13 15APR12 08SEP13

Country Limit

F28 Unmarried Sons & Daughters (21 years 01 FEB 07 01 FEB 07 01 FEB 07 15MAY93 22 JUN 03 of age or o!der) of Permanent Residents

··-- -·-·--------------

F3 Married Sons & Daughters of U.S.

01 SEP 03 01 SEP 03 01 SEP 03 01 JUL 93 01 MAR 93 Citizens

-· - --··-

F4 Brothers & Sisters of Adult U.S. Citizens 08 DEC 01 08 DEC 01 08 DEC 01 01 DEC 96 01NOV90

··. ;-:.->:<>-·-,---:, ; .:-: .----·. ·, < ..... · .. ··• ·····.·•

. . .· . .·. ··. • ••••• ··.·· Employmentcbased categories .. . . ·.···.· .. ·· . · . . ·• . ..

All chargeability areas China

except the (mainland India Mexico Philippines countries born)

---·-· I--- ~ara~y~~~-- ---· -··-~--~~-·"--~----· ··-··-E1 Priority Workers c c c c c

... ,,-···~-·- """····~····--·-···- ··--··- -······--.. -···- ---·--·----·--·-·~· -Professionals Holding Advanced

E2 Degree or Persons of Exceptional c 15 AF'f~ 09 15 NOV 04 c c Ability

E3 Skilled Workers & Professionals 01 OCT 12 01OCT12 01 OCT 03 01 OCT 12 01NOV07 - -

EW Other Workers (UnskHled Workers) 01 OCT 12 01OCT12 01 OCT 03 01OCT12 01 NOV 07 --------·------·- ·- -

E4 Certain Special Immigrants c c c c c -

E4 Certain Religious Workers (SR} c c c c c ·-·-- "-··-·-· ---

E5 Employment Creation (Investors) c c c c c ----···

E5 Employment Creation (Investors in c c c c c Targeted Employment Areas)

····-·-

E5 Pilot Programs c c c c c ~- -----·--- ---·- ···--··--··--------- ···--·-·-

C =Current U = Unavailable Cut.off date = The cut-off date ls the priority date of the first applicant who could not be reached within tt1e statutory llmil for the month. Only applicants who t1ave priority dates earlier than the cut-off date may be allocated a number

177

A. STATUTffiY NUM3ERS

United st at es Depart rrent of st ate Bureau of Consul ar Af f ai rs

VISA BULLETIN

I IVIVl GRANT NUM3ERS Fffi fl/ll\Y 2014 ~ ·-------·- --·-·-··--·

1. This bul I et i n sumrar i zes the avai I abi I it y of i rmi gr ant nurrber s dur i ng 1\113J1.. Consul ar off i cer s are r equi red to report to the D9par t rrent of st ate docurrenf ar i I y qual i f i ed appl i cants for nurrer i cal I y I i nit ed vi sas; U.S. Cit i zenshi p and I rrni gr at i on Ser vi ces i n the D9par t rrent of 1-brrel and Secur i t y reports appl i cants for adj ust rrent of st at us. Al I ocat i ons V\er e mide, to the extent possi bl e, i n chr onol ogi cal order of reported pr i or it y dates, for demind received by Apr i I 8th. If not al I demind coul d be sat i sf i ed, the category or for ei gn st ate i n lllAli ch --·-demind was excessi ve was deerred over subscr i bed. The cut - off date for an over subscr i bed category i s the pr i or it y date of the f i r st appl i cant lllAlo coul d not be reached Vii t hi n the nurrer i cal I i nits. 011 y appl i cants lllAlo have a pr i or it y date ear I i er t han t he cut - off date miy be al I ot t ed a nurrber. I f i t becorres necessary aurrng-Tne-rmnt hi y al I ocat i on process to r et r ogress a cut - off date, suppl errent al requests for nurrber s Vii I I be honored onl y i f t he pr i or i t y date f al I s WI t hi n t he new cut-off date announced in !his bul I eli n.

2. Section 201 of the I rmi gr at ion and Nationality Act (I Nt\) f;et s an annual rri ni rrum f am I y- sponsor· ed pr et er ence I i 1ri t of 226, 000. The vcor I d\/\A de I evel for annual e1Tpl oyrrent - based pref er ence i rmi gr ants i s at I east 140, 000. Sect i on 202 pr escr i bes t hat t he per - country I i rri t for pref er ence i rmi gr ants i s set at 7% of the t ot al annual f ani I y- sponsored and errpl oyrrent - based pref er ence I i ni ts, i . e. , 25, 620. The dependent area I i nit i s set at 2% or 7, 320.

3. I NA Section 203( e) pr ovi des that f ani I y- sponsored and errpl oyrrent - based preference visas be issued to el i gi bl e i rmi grants in the order in lllAli ch a pet it i on i n behalf of each has been f i I ed. Sect i on 203( d) pr ovi des that spouses and chi I dr en of pref er ence i rmi gr ants are ent i t I ed t o t he sarre st at us, and the sarre order of consi der at i on, i f accorrpanyi ng or fol I oWi ng to j oi n the pr i nci pal . The vi sa pr or at i ng pr ovi si ons of Sect i on 202( e) apply to al I ocat ions for a foreign st ate or dependent area when vi sa demind exceeds the per-country Ii ~t. These provisions apply at present to the fol I ow ng oversubscribed chargeabi Ii ty areas: CHI NA-mii nl and born, I NOi A, IVEXI CO, and PHI LI PPI NES.

178

- 2- M3y 2014

4. Sect i on 203( a) of the I NA pr escr i bes pref er ence cl asses for al I ct rrent of Fani I y- sponsored i rrni gr ant vi sas as f cl I oVvS:

FAM LY- SPCTl!SCRED PREFERENCES

First: ( F1) Unn-ar r i ed Sons and Daughters of U.S. at i zens: 23, 400 pl us any nurTber s not r equi red for fourth pref er ence.

Second: Spouses and Chi I dr en, and Unrrer r i ed Sons and Daughters of Per rrenent Res1 dents: 114, 200, pl us the nuntJer (if any) by IMli ch the wor I d\M de f ani I y pref er ence I eve I exceeds 226, 000, pl us any unused f i r st pref er ence nurrber s:

A. ( F2A) Spouses and Chi I dr en of Per rranent Resi dents: T7% of the over al I second pref er ence I i nit at i on, of IMli ch 75% are exerrpt fr om the per - country I i nit;

B. ( F2B) Unrrer r i ed Sons and Daughters ( 21 years of age or cl der) of Per rrenent Residents: 23% of the over al I second pref er ence I i nit at i on.

Thi rd: ( F3) Mlr r i ed Sons and Daughters of U. S. a t i zens: 23, 400, pl us any nurTber s not r equi red by f i r st and second pref er ences.

Fourth: ( F4) Br ct hers and Si st er s of Adult US. at i zens: 65, 000, pl us any nurTber s not r equi red by f i r st three pref er enc es.

01 the chart below, the Ii sting of a date for any cl ass i ndi cat es that the cl ass is oversubscribed (see paragraph 1); "C' rreans current, i.e., nurrber s are avai I able for al I qualified applicants; and "U' rreans unavai I ab! e, i . e., no nurrber s are avai I abl e. ( NOfE: Nurrber s are avai I able onl y for appl i cants 111Alose pr i or it y date i s earlier than the cut - off date I i st ed bel ow. )

Al I Charge-abi I i t y Areas CHI NA-Except Those rrai nl and

Fam I y- Li st ed born I NOIA IVEXI 00 PHI LI PPI NES S[!onsored

Fi 08MA.R07 08MA.R07 08MA.R07 15NOJ93 01 FEB02

F2A 08SEP13 08SEP13 08SEP13 15APR12 08SEP13

F2B 01FEB07 01FEB07 01FEB07 15MA.Y93 22J Ul\03

F3 01SEP03 01SEP03 01 SEP03 01JUL93 01 MA.R93

F4 08DEC01 08DEC01 08DEC01 01 DEC96 01NOJ90

* NCJrE: For II/By, F2A nurrber s EXEIVPT fr om per - count r 'f. I i ni t are avai I abl e to appl i cant s fr om al I count r i es \i\i"ThprlorTTyCfat es earTTer--t han 15APR12. F2A nurrber s ~CT to pe_r- country I .L.ni.l. are avai I abl e to-appl i cants char geabl e to all countr1es--i::x-CEPTlllEXIOOwTii priority dates beg1nn1ng 15APR12 and earlier than 08SEP13. (All F2A nurrber s pr ovi ded I or IVEXI 00 are exerrpt fr om t he per -count r y I i ni t ; t here are no F2A nurrber s for IVEXI 00 subj ect to per - count r y Ii nit.)

179

- 3- l\/l3y 2014

5. Sect i on 203( b) of the I NA pr escr i bes pref er ence cl asses for al I ot rrent of Errpl oyrrent - based i nni gr ant vi sas as fol I ow.;;:

EIVPLOYIVENT-BASED PREFERENCES

First: Priority WJr ker s: 28. 6% of the oor I dw de enµI oyrrent - based pref er ence I evel , pl us any nunber s not r equi red for fourth and f i ft h pref er enc es.

Second: 1\/13nber s of the Pr of essi ons Hol di ng Advanced Dlgr ees or Per sons of Except i onal Abi I it y: 28. 6% of the oor I dw de errpl oyrrent - based pref er ence I evel , pl us any nunber s not r equi red by f i r st pref er ence.

Third: Skilled W>rkers, Professionals, and Qher W>rkers: 28. 6% of the \MJr I dw de I evel , pl us any nunber s not r equi red by f i r st and second preferences, not rmr e than 10, 000 of Vikli ch to "*a her WJr ker s".

Fourth: Certain Special lnnigrants: 7.1%of the oorldwde level.

Fifth: Errployrrent 0-eation: 7.1%of the oorldwde level, not less than 3,000 of \Mli ch reserved for i nvest ors i n a tar get ed rural or high- unerrpl oyrrent area, and 3, 000 set aside for invest ors in regional cent er s by Sec. 610 of Pub. L. 102- 395.

01 the chart below, the Ii sting of a date for any cl ass i ndi cat es that the cl ass i s over subscr i bed (see paragraph 1) ; "C' rreans current , i . e. , nunber s are avai I able for al I qualified applicants; and "U' rreans unavai I able, i.e., no nunber s are avai I able. ( NOfE: Nunber s are avai I abl e onl y for appl i cants Viklose pr i or i t y date i s ear I i er t han the cut - off date I i st ed bel ow. )

Al I Olerge abi I i t y /,r eas Except Those Li st ed

Enpl oyrrent -Based

1st c 2nd c 3rd 010CT12

a her 01CX:T12 W>rkers

4th ,... v

Cert ai n c Rel i gi OLIS WJrkers

St h c Tar get ed Errpl oy 1rent Ar east Regi onal Cent er s and Pi I ot Pr ogr arm

CHI NA­rrai nl and born

c 15APR09

01CX:T12

01CX:T12

c c

c

INDIA IVEXI OJ

c c 15N0/04 c 01CX:T03 01OCT12

010CT03 010CT12

c c c c

c c

PHI LI PPI NES

c c

01 N0/07

01 N0/07

c c

c

180

- 4- Miy 2014

*Errpl oyrrent Thi rd Preference Qher W>rkers Category: Section 203(e) of the Ni car aguan and Cent r al Arrer i can Rel i ef Act ( NAQ'.\RA) passed by Congress i n Noverrber 1997, as arrended by Section 1(e) of Pub. L. 105-·139, provides that once the Enpl oyrrent Thi rd Pref er ence a her V\br ker ( 'fVV cut - off date has reached the priority date of the latest EWpetition approved prior to Noverrber 19, 1997, the 10, 000 EW nurrber s avai I abl e for a f i seal year are to be reduced by up t o 5. 000 annual I y begi nni ng i n the fol I olM ng f i seal year. Thi s reduct i on i s to be mide for as I ong as necessary to off set adj ust rrent s under the NAO'.\RA program Si nee the EWcut-off date reached Noverrber 19, 1997 during Fi seal Year 2001, the reduct i on i n the EW annual I i ni t to 5, 000 began i n Fi seal Year 2002.

6. The Depart rrent of st ate has a recorded rressage IM t h vi sa avai I abi I i t y i nf or mit i on \Ahi ch can be heard at: ( 202) 485- 7699. Thi s r ecor di ng i s updated on or about the tenth of each nunt h IM th i nf or rrat i on on cut - off dates for t he fol I olM ng rmnt h.

B. DIVERSITY I IVM ffiANT ( DV) O'.\TEGCRY FCR THE MJ\JTH a= MW

Sect i on 203( c) of the I NA pr ovi des up to 55, 000 i nni gr ant vi sas each f i seal year to per ni t addi t i onal i nni gr at i on oppor t uni t i es for per sons fr om count r i es IM t h I ow adni ssi ons dur i ng the pr evi ous five years. The NAO'.\RA st i pul at es that begi nni ng IM t h DV- 99, and for as I ong as necessary, up to 5, 000 of the 55, 000 annual I y- al I ocat ed di ver sit y vi sas IM I I be rrade avai I abl e for use under the NAO'.\RA program This resulted in reduction of the DV-2014 annual Ii nit to 50, 000. DV vi sas are di vi ded anung si x geographic r egi ons. No one country can r ecei ve rmr e than seven per cent of the avai I abl e di ver si t y vi sas i n any one year.

For ~· i nni gr ant nuiTber s i n the DV category are avai I abl e to qual i f i ed [JV .. 20 14 appl i cants char geabl e t o al I r egi ons/ el i gi bl e count r i es as fol I ows \f'!llen an ai i ocat ion cut - off nun'ber is sho\Ml, visas are avai I able only for applicants Vlhth DV regional lottery rank nurrbers BELO/Vthe specified allocation cut-off nurrber:

Al I DV Char geabi I r t y Areas Except Those

Region

AFRI Cl\

Li sled Separate! y

ASIA

EURCPE

NffiTH ArvERI Cl\ ( BAHArvJl\S)

CXEANI A

SOJfH ArvERI Cl\, and the O'.\RI BBEAN

37, 900

6, 500

30, 700

15

1, 100

1, 325

Except: Egypt Nigeria

25, 900 13, 500

Except: Uz beki st an 16, 350

181

- 5- Mly 2014

Ent it I errent to i mri gr ant st at us i n the DJ category I ast s onl y through the end of the f i seal (visa) year for lllkli ch the applicant is sel eel ed in the Iott ery. The year of ent1tlerrent for all applicants registered for the DJ-2014 program ends as of Sept errber 30, 2014. DJ vi sas rray not be i ssued to DV- 2014 appl i cants aft er t hat date. Si ni I ar I y, spouses and chi I dr en acconpanyi ng or fol I olM ng to j oi n DV- 2014 pr i nci pal s are only ent it I ed to der i vat i ve DJ st at us unt i I Septenber 30, 2014. DV visa avai I abi Ii ty through the very end of FY-2014 cannot be taken for gr ant ed. Nurrber s coul d be exhausted pr i or to Sept errber 30.

c THE DI VERSI T.'L..( 0\/) I l\Jl\/I CRANT C'ATEG:RY RANK cvr- CFFS \/'¥11 CH \/'!'LL APPL y IN JONE ·-· . . - . . .. .

For June, i mri grant nurrbers in the DJ category are avai I able to qua! i fi ed DJ- 2lJT4 appl i cants char geabl e t o al I r egi ons/ el i gi bl e count r i es as fol I ows. V'V!en an al I ocat i on cut - off nurrber i s sho\Ml, vi sas are avai I ab! e on! y for appl i cants IM t h DJ r egi on al I otter y rank nurrber s BELON t he speci f i ed al I ocat i on cut - off nurrber:

Al I DJ Char geabi I i t y Areas Except Those

Region Li st ed Separ at el y

AFRICA

ASIA

EURG'E

NCRTH AM:RI CA ( BAHl\Ml\S)

CCEANIA

SWfH AM:RI CA, and t he CARI BBEAN

45,600

7,425

32, 950

18

1, 185

1, 425

Except : Egypt Niger i a

28, 200 15, 300

Except: Uzbekistan 17, 500

182

- 6- M3y 2014

D. VI SA AVAi LAB! LI TY IYJRI NG THE C0\11 NG rvt:NTHS

vmLDWDE F2A: From early 2013 through Septerrber 2013, the level of demmd for nurrber s i n t hi s pref er ence category was ext r errel y I ow. As a r esul t , the F2A cut - off date was advanced at a very r api d pace, i n an at t errpt to generate derrand so that the annual nurrer i cal I i nit could be f ul I y ut i I i zed. As readers of the Vi sa Bui I et i n \Mlr e advi sed dur i ng that ti rre, such cut - off date advances \Mlr e not expected to cont i nue, and at sorre poi nt they coul d st op, or r et r ogr essi on ni ght be required.

The I eve! of derrand being experienced for FY-2014 has resulted in the IN>rl d\M de F2A cut - off date bei ng hel d si nee O:;t ober. Despite no forward rmverrent of the cut - off date, the I eve I of derrand has cont i nued to i ncr ease dr arrat i cal I y. At the current rate, such derrand IM I I r equi re a r et r ogr essi on of the F2A cut - off date IM t hi n the next sever al rmnt hs. That act i on \MlUI d be necessary to ho! d nurrber use IM t hi n the annual nurrer i cal I i ni t .

IVEXI CO F2A: Despite an ear I i er r et r ogr essi on of t hi s cut - off date, the I eve! of derrand rerrai ns ext rerrel y heavy. As a result, it is Ii kel y that another r et r ogr essi on of t hi s cut - off date IM I I be r equi red to hol d nurrber use IM t hi n the annual nurrer i cal I i ni t .

183

184