Volume VII, Issue 7 October 2013

In This Issue
1. BALCA Panel Offers Differing Opinion on SWA Content
2. Follow-through with Candidates is Essential to Labor Certification
3. United States Unemployment Rate September 2013
4. PERM Processing Times as of August 15, 2013

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1. BALCA Panel Offers Differing Opinion on SWA Content

A recent decision by the Board of Alien Labor Certification Appeals (BALCA) contradicts a previous decision that was issued by a different BALCA panel regarding the content of job orders that are placed with the State Workforce Agency (SWA).

In the Matter of IBM Corporation, the Certifying Officer (CO) denied the employer’s application for the position of Senior Managing Consultant because the SWA job order did not state that the work will be performed at “various client sites throughout the U.S.” as stated on the ETA Form 9089. The CO initially claimed that this omission violated the regulations at 20 C.F.R. § 656.17(f)(6), which require that advertisements not include any job requirements or duties that exceed those listed on the ETA Form 9089. The employer challenged this basis for denial, arguing that the duties listed on the ETA Form 9089 exceeded those listed on the SWA and not the other way around.

The CO forwarded the case to BALCA, acknowledging that the employer was correct in pointing out that the CO had inaccurately cited 20 C.F.R. § 656.17(f)(6) as the basis for denial. However, the CO concluded that the denial was still justified based on 20 C.F.R. § 656.17(f)(4), which states that the 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.”

BALCA relied on past findings to reach their decision, noting that in David Dill (June 2009) the Board upheld a denial due to the fact that the SWA job order listed a wage that was less than the prevailing wage determination. The Board also pointed out that the en banc panel in A Cut Above Ceramic Tile (March 2012) specified that even though the employer is not required to provide a copy of the job order, if they do provide one, “the CO is not barred from denying certification based on a deficiency in the content of the SWA job order” (see March/April issue of USADNEWS).

The Board determined that even though section 20 C.F.R. § 656.17 refers directly to advertisements for newspapers and professional journals, BALCA has interpreted the regulations to apply to all advertisements including SWA job orders. Based on this interpretation, the omission of information about travel requirements would violate 20 C.F.R. § 656.17(f)(4). BALCA thereby upheld the CO’s denial of certification.

This is a stark contrast to the decision in the Matter of Chabad Lubavitch Center (July 2013) (see September issue of
USADNEWS), in which the Board concluded that it could not extrapolate beyond the plain language of the law. In that case, BALCA also relied on A Cut Above Ceramic Tile, finding in that decision a basis for a different interpretation of the regulations. In A Cut Above, the Board quoted the Supreme Court as saying that where Congress “includes particular language in one section of a statute but omits it in another section of the same Act,” it is presumed that the omission is intentional. Based upon this reasoning, the Board concluded in the Chabad Lubavitch Center case that SWA job orders were purposely omitted from the content requirements at section 20 C.F.R. § 656.17.

Because of the contradictory nature of these two decisions, it may not be surprising to see this matter brought before an en banc panel in the future. In the meantime, USadWeb will continue to provide proofs of SWA job orders for you to review for accuracy and completeness.

2. Follow-through with Candidates is Essential to Labor Certification

With so much focus placed on the advertising for labor certification cases, it’s easy to forget that the recruitment process does not end there. Just as important is the follow-through with candidates that have applied for the open position. In the Matter of W. Alex Choi, CPA, PC, the Certifying Officer (CO) denied the employer’s application because they did not demonstrate good faith in considering U.S. applicants for the job.

The employer was selected for supervised recruitment and submitted a proposed advertisement text for approval. The Department of Labor (DOL) approved the employer’s ad text, which included fluency in Korean as part of the job description. The CO forwarded 44 resumes to the employer, all of which the employer rejected either because they did not meet the minimum qualifications or because the employer was unable to contact them.

The CO denied the application, claiming that the employer violated section 20 C.F.R. § 656.10(c )(9) of the regulations, which states that U.S. applicants can only be rejected for lawful job-related reasons. The CO claimed that the employer did not use “good faith efforts” to contact qualified candidates, thereby rejecting them without a lawful reason. The CO further stated that the employer rejected U.S. applicants for failing to meet criteria that were not listed on the ETA Form 9089, specifically requiring applicants to have fluency in Korean. The employer argued that even though fluency in Korean was not a requirement listed on the ETA Form 9089, it was included in the job description that was approved by the DOL.

Setting aside the Korean language issue, the CO forwarded the case to the Board of Alien Labor Certification Appeals (BALCA) on the basis of the first reason for denial. The question of whether the employer exercised good faith in attempting to contact applicants is the only issue BALCA addressed. The employer reported that it had rejected qualified applicants that it was unable to reach by email or certified mail. The CO pointed out that the employer did not make every effort to contact these candidates. In particular, the employer sent interview invitations by certified mail to four candidates. The tracking information showed that the candidates did not receive these invitations until four to seven weeks after the interviews were scheduled to take place.

BALCA found that if the employer had been tracking the mail to ensure proper delivery, it would have realized that the invitations were not being delivered on time. The employer would then have used a different means to contact the applicants, such as the phone numbers or email addresses they provided on their resumes. Because the employer made no such effort to contact the candidates, BALCA determined that it did not act in good faith and upheld the denial.

3. United States Unemployment Rate September 2013

The unemployment rates around the country can greatly impact a company's decision to sponsor an application for labor certification. When unemployment rates are high, companies may elect not to proceed with the certification process. Rates can vary by state and industry. There are several states with jobless rates that are well below the national average. Employers in these states may be more available to sponsor employees. USADWEB is providing information on the current unemployment rates as a convenient tool to assist you as you prepare your cases. The Bureau of Labor Statistics report was just released due to a delay from the government shutdown. The unemployment rate decreased from 7.3% in August to 7.2% in September, according to the Bureau of Labor Statistics.

4. PERM Processing Times as of August 15, 2013

PERM processing times are important to you and your clients. Therefore, each month USADWEB is pleased to be able to update you on the current processing times for reviews, audits, and appeals as reported on www.icert.doleta.gov:

PERM Processing Times
Processing Queue Priority Dates
Month Year
Analyst Reviews February 28 2013
Audits August 31 2013
Reconsideration Requests to the CO September 3 2013
Gov't Error Reconsiderations Current

The Office of Foreign Labor Certification (OFLC) is working diligently to reduce the Permanent Labor Certification Program's pending caseload. The dates on the above table reflect the month and year in which applications are now being adjudicated at the Atlanta National Processing Center. If you need assistance with an application that was filed more than 3 months prior to the month posted, you can contact the OFLC Helpdesk at plc.atlanta@dol.gov.

Clients' Comments Corner

USADWEB provides impeccable service and reliant customer service -- we know we can count on them to provide the utmost service to us so that we can pass on the highest quality of service to our clients.
(Boston, MA)


USADWEB, LLC. is an innovative advertising agency that understands the immigration needs of companies placing recruitment advertising for labor certification cases in PERM, supervised recruitment, and H2B processes. For more than half a decade, we have helped law offices and companies all over the United States meet the Department of Labor's recruiting requirements. Take advantage of our expertise and relationships with publications throughout the country. Our knowledgeable staff has experience placing all forms of recruitment: newspapers, periodicals, journals, internet job search postings, campus recruitment, radio ads, and more. Contact a representative for more information on placing your ads today!

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USADVolume VII, Issue 7 October 2013

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