Immigration Visa Attorney Blog

The Board of Alien Labor Certification Appeals (BALCA) recently ruled on a case related to the confirmation of an employer's sponsorship of a foreign worker. We think it is an interesting decision, one that our friends here in central Ohio should pay attention to as they work on these kinds of application.

Four years ago a company filed for Permanent Employment Certification (PERM) for a landscaping/grounds keeping-related position. The Certifying Officer (CO) in the case denied the application on the grounds that they could not verify the employer's sponsorship of the candidate.

When applying, the Employer included a signed "declaration under of penalty of perjury" from the company president attesting to the conditions of employment. In the denial, the CO stated it tried unsuccessfully to reach the president by phone on five separate occasions over a one-month period.

Continue reading "PERM Judge rules on telephone verification " »

This is another interesting decision handed down recently by the Board of Alien Labor Certification Appeals (BALCA). In May the Department of Labor's appeals arm handled a case which spoke to the importance of clearly providing evidence for why local recruitment efforts came up short. For our friends in and around Columbus it is yet another instance of why expert counsel is so critical in the employment certification process.

In September of 2007 a company filed an Application for Alien Employment Certification for a position titled "Software Engineer." According to the Employer, the position required a Master's degree in Computer Science and either two years experience in the specific job offered or a "suitable combination of education, training, or experience."

Later that year a Certifying Officer (CO) issued an audit that requested all recruitment documentation, including a report required by the Code of Federal Regulations (C.F.R.). The response from the Employer stated that two candidates were evaluated for the position. But based on the resumes submitted, their experience with respect to key web-related software "indicated a serious gap in the skill sets required to meet the goals and objectives of the company."

In September of 2009 the Employer's request was denied by the CO on five separate grounds. The CO felt the recruitment report made only a "generalized statement" about the U.S. workers not meeting the position's minimum requirements. A failure to include an "unaltered" copy of the notice of filing, wage determination and web advertisement was listed, as were three cases where the Employer's paperwork was inconsistent or lacking a requisite piece of information.

In October the Employer requested reconsideration. With that request the Employer attached an amended report explaining its rejections of the two U.S. candidates, as well as information clearing up the issues with its paperwork.

And while in June of 2010 the CO found the information regarding wage determination and job order to be acceptable, they still did not find the recruitment report met C.F.R. standards. The CO stated it did not even consider the amended recruitment report.

Continue reading "BALCA: Local Recruiting and Labor Certification" »

This is a recent Department of Labor appeal we would like those in the local community to take a look at. The case involves the way in which experience is defined as it pertains to time on the job vs. time spent in school.

In April of 2009 a Certifying Officer (CO) denied an employer's request for
Permanent Employer Certification (PERM) for the position of Product Manager on two separate grounds. One reason was that the alien did not meet the minimum experience for the position under the Code of Federal Regulations (CFR).

Under CFR the minimum qualification for the position is a "Bachelor's Degree in Merchandising and five years experience in the field or equivalent combination of education and experience." It was that piece of regulation the CO cited when making the denial.

In a request for reconsideration on May 1, 2009, the Employer argued that the alien had "one year of university credit" and had been on the job for 14 ½ years. The Employer felt the year of education and job experience was enough to equal 17 years of overall experience.

On February 18 of 2010 the CO denied certification. The CO pointed to a 1994 policy guideline on certification issues which a bachelor's degree is equivalent to two years of experience. That would mean a Bachelor's degree and five years of experience would be equal to seven years in the work place, not 17.

That meant the Employer's formula was not "substantially equivalent" to the primary requirements of the job.

Continue reading "Columbus, OH Attorney: BALCA Looks at Work Experience" »

Here's another recent Department of Labor appeal case for those in the community to take a look at. This one involves analysis of how exactly we define experience when it comes to time on the job vs. time in school.

In April of 2009 a Certifying Officer (CO) denied an employer's request for Permanent Employer Certification (PERM) for the position of Product Manager on two separate grounds. One reason was the alien did not meet the minimum experience for the position under the Code of Federal Regulations (CFR).

Under CFR the minimum qualification for the position is a "Bachelor's Degree in Merchandising and five years experience in the field or equivalent combination of education and experience." It was that piece of regulation the CO cited when making the denial.

In a request for reconsideration on May 1, 2009, the employer argued that the alien had "one year of university credit" and had been on the job for 14 ½ years. The employer felt the year of education and job experience was enough to equal 17 years of overall experience.

On February 18 of 2010 the CO denied certification. The CO pointed to a 1994 policy guideline on certification in which a bachelor's degree is listed as equivalent to two years of experience. That would mean a Bachelor's degree and five years of experience would be equal to seven years in the work place, not 17.

That meant the employer's formula was not "substantially equivalent" to the primary requirements of the job.

The case was turned over to a judge with the Board of Alien Labor Certification Appeals. After outlining the way the PERM process is supposed to function - "exacting" rather than drawn-out - the judge would ultimately find for the CO.

Continue reading "Columbus, OH Attorney: BALCA Looks at Work Experience" »

A judge for the Board of Alien Labor Certification Appeals recently ruled on an interesting case related to the burden employers face trying to prove the hardship related to training a new employee.

The case is a good one for our friends here in Columbus to take a look at, especially with regard to the intricacies related to federal code. It is yet another instance where experienced representation must be present when maneuvering the permanent labor certification (PERM) process.

In late 2006 a company sought PERM certification for a position entitled "Propagation Supervisor." In May of 2009 an audit was requested by the Certifying Officer (CO) who requested the employer's State Workforce Agency job order along with several other materials.

A few months later the CO informed the employer the request was not being certified "in part because the documentation submitted by the employee . . . was insufficient to demonstrate that a U.S. worker could not be trained to qualify for the position."

In September of 2009 the employer's representative filed a motion for the application to be reconsidered. The argument was that, among other factors, the growth of the business and illness suffered by the employer prevented the employer from training a U.S. worker for the position.

The CO denied this appeal in January of 2010 and forwarded it to BALCA. A brief prepared by the Employer's council argued enough evidence had been provided to show an inability to train a U.S. worker.

The pertinent piece of the Code of Federal Regulations (656.17) states that the Department of Labor must evaluate the "training and experience possessed by the alien beneficiary at the time of hiring" and make sure more isn't being required of U.S. applicants. The exception comes when "the employer can demonstrate that it is no longer feasible to train a worker to qualify for the position."

To that end, the employer's council mentioned that the CO needed to take into consideration "the change in business conditions" that made it impossible to train a U.S. worker. That change makes it different, the employer argued, than determining whether a new worker can be trained.

Continue reading "BALCA Rules on Training New Workers" »

A decision made this month by the Board of Alien Labor Certification Appeals (BALCA) highlights how the continually changing world of internet technology influences the way visa law is interpreted. Our neighbors here in central Ohio need to be aware of the minute details certifying officers (CO) evaluate as they examine visa petitions.

In October of 2007 an employer had its application for a Permanent Employment Certification for the position of "Dentist" audited. The employer was instructed to provide information related to recruitment.

The CO issued a denial of the certification request in March of 2009, on the grounds the employer failed to identify itself on a job search website. The employer requested a review but was denied again in November for the same reason.

According to the CO, the employer was in violation because "the information initially presented to interested individuals via the Search results would only show the employer's name as listed with (the job search site), the position title, location and the date posted." In this case the results on the search page listed the employer as "confidential."

The employer believed that even though its name was not listed on the search pages, when a potential applicant clicked on the hyper link for the full job description he or she would be able to view the employer's name and street address. The employer did not feel as if the advertisement was "blind," as prospective employees would see the required information upon clicking the entire job listing. The CO did not agree and the case was forwarded to BALCA in November of 2009.

Continue reading "Columbus Immigration Attorney Review: BALCA Clarifies Website Policy" »

Something for employers here in Ohio to be aware of when planning to file an application for Permanent Employment Certification (PERM) is the way in which they will be required to prove their recruitment efforts. One method by which that can be accomplished is use of the employer's website. As this recent Board of Alien Labor Certification Appeals (BALCA) demonstrates, employers must be versed in the nuances of proving web recruitment.

Following a November, 2007 audit, an employer looking for certification under PERM for the position of "Applications Engineer" submitted its recruitment documentation to the Certifying Officer (CO). The employer attached job listings from its website dated September 24, 2007, as well as an affidavit from a high-ranking employee certifying that he posted the job opportunity on the website from May 29, 2007, to July 19, 2007.

But certification was denied by the CO. The reason for the ruling was that the CO did not believe the employer complied with a requirement that an employer's website "be documented by providing dated copies of pages from the site that advertise the occupation involved in the application."

The CO said the employer's documentation showed only that the job was posted on Sept. 24, a date that falls outside the reported time between May and July. The employer filed for reconsideration based on a belief the affidavit of its executive should have been given more weight and that the Sept. 24 date fell within the period 30 days prior to the application being submitted.

After consideration the judge for BALCA agreed with the CO's findings. The judge found the Sept. 24 date "unpersuasive" (as it was not within the time period listed on the application) and pointed out that regulations require that employers maintain supporting documentation of all step taken in the recruitment process.

Continue reading "Columbus H-1B Attorney: Website Documentation in PERM Certification" »

A recent decision handed down by the Board of Alien Labor Certification (BALCA) ruled that the Certifying Officer's (CO) demand for proof a State Workforce Agency job order was actual run is not covered by permanent labor certification (PERM) regulations. It is an issue which could easily present itself in a community like Columbus, OH.

In the case in question, an employer had its initial request for a nonprofessional position (baker) to be certified denied on the grounds it could not be verified as a legitimate business. After the employer responded with what it deemed evidence it was a business entity the CO issued an audit requesting recruitment efforts as well as some proof of publication by the SWA containing content of the job order.

The employer's audit response contained fax proof of a job order request made to the New Jersey Department of Labor as well as a copy of the job order form.

The CO ultimately denied certification, stating that the documentation was not what the audit requested. The employer countered that the denial was based on proof of the SWA job order and both the fax it provided, along with the copy of the original job order meant it was in compliance. The employer added that certified copies were not aviailable from the SWA because of a record purge prior to the audit and that the bank under which the order had run no longer existed.

Based on a requirement that employer must retain documentation supporting application for five years the CO denied reconsideration and forwarded the case to BALCA.

Continue reading "Columbus Labor Certification Attorney on Evidence of Job Order Placement" »

A recent decision by the Board of Alien Labor Certification Appeals reminds us
of the need for all documentation related to immigration certification and
subsequent appeals be submitted in a complete and timely fashion.

The company in question saw its 2007 Permanent Employment Certification for a software engineer denied on the grounds its online job posting did not publicize the accurate
prevailing wage determination (PWD). It then had an appeal denied, in part,
because the certifying officer would not consider an online newspaper ad it
had not included in the filing audit.

Continue reading ""BALCA Labor Certification Decision: Documentation Not Submitted With Application Cannot be Considered "" »

The Board of Alien Labor Certification has taken a step to clarify the meaning of "business day" in the Department of Labor's Permanent Employment Certification (PERM) process. An administrative judge ruled earlier this month that for the purposes of PERM filings the business day is not limited to weekday and non-holidays.

In late 2007 a restaurant filed a PERM application for "Chefs and Head Cooks" which was initially denied by the Certifying Officer on an unrelated issue. On reconsideration early this year the CO denied on the grounds the restaurant's "Notice of Filing (NOF) was posted for fewer than consecutive 10 business days."

Continue reading "BALCA Clarifies Definition of "Business Day" for PERM Process" »