2014 balca decisions case summaries

1. Mini Year in Review 2014 balca decisions case summaries

2. Matter of Federal Home Loan Mortgage Corp.2011-PER-02902 (February 10, 2014); AILA Doc. No. 14021144 • Issue: Can an employer reject a U.S. applicant’s resume for reasons other than those reflected in the minimum requirements as listed on the ETA Form 9089 and the State Workforce Agency (SWA) Job Order? • Holding: Although an employer cannot look outside of the minimum requirements as listed on the ETA Form 9089 to reject a qualified U.S. applicant, the employer was justified in rejecting the laid-off U.S. worker on the grounds that the worker lacked the requisite experience and skill based on the face of the worker’s resume and the requirements of the employer’s ETA 9089. • Practice Pointer: When determining whether to reject U.S. applicants for the offered position, employers should base their decisions on substantive, lawful, job related factors listed in the ETA Form 9089. The employer’s mere statement that the U.S. worker is not qualified, is not enough. Additionally, practitioners should pay careful attention to the new FAQs on the Department of Labor’s Employment and Training Administration website, which discuss the proper notification and consideration of laid-off U.S. workers for PERM labor certification applications. 

3. Matter of Delta Search Labs2011-PER-02871 (April 24, 2014);AILA Doc. No. 14050540 • Issue: Can separate advertisements, placed in the same newspaper, meet both the Sunday newspaper of general circulation and the local newspaper recruitment criteria? • Holding: The regulations do not prohibit an employer from using one newspaper to satisfy multiple recruitment steps, provided that the newspaper satisfies both categories. • Practice Pointer: If an employer seeks to use one newspaper to satisfy multiple recruitment steps, practitioners should take careful steps to document that the newspaper meets both recruitment criteria. The safest practice would be to place the Sunday advertisements and local paper advertisement in two different newspapers.

4. Matter of Sharp Image Gaming, Inc.2011-PER-02024 (July 9, 2014);AILA Doc. No. 14080857 • Issue: Can a Certifying Officer (CO) deny ETA Form 9089 which contains typographical errors if the errors are not substantive and do not result in a violation of the regulations? • Holding: Although the employer made typographical errors on the ETA Form 9089, the provided audit documents demonstrated the employer’s compliance with the regulations and therefore, the typographical error, on its own, does not warrant a denial. • Practice Pointwer: While the holding in Matter of Sharpmay signify a departure from BALCA’s traditional, stricter holdings on typographical errors, practitioners should still take care to avoid typographical errors on the ETA Form 9089.

5. Matter of Symantec Corp.2011-PER-01856 (February 11, 2014)AILA Doc. No. 14021248 • Issue: Do the advertising content requirements of 20 CFR 656.17(f) for ads placed in newspapers of general circulation or professional journals, apply to the additional forms of recruitment? • Holding: Based on the plain language of the regulations, as well as the regulatory history, advertising content requirements for ads placed in newspapers of general circulation or professional journals (20 CFR 656.17(f)) do not apply to additional forms of recruitment (20 CFR 656.17(e)(1)(ii)). • Practice Pointer: While the additional forms of recruitment do not have to comply with the requirements of 20 CFR 656.17(f)(6), it is important to ensure that information contained in the additional forms of recruitment include information that has also been provided on the ETA Form 9089. Failure to do so could indicate bad faith recruitment efforts on the part of the employer.

6. Matter of Symantec Corp.2011-PER-01856 (July 30, 2014); En Banc Decision;AILA Doc. No. 14080102 • Issue: Must additional recruitment advertisements comply with the detailed content requirements listed in 20 CFR 656.17(f)(6)? • Holding: Advertising content requirements found in 20 CFR 656.17(f)(6) do not apply to the additional recruitment steps found in 20 CFR 656.17(e)(1)(ii). • Practice Pointer: While the additional forms of recruitment do not have to comply with the requirements of 20 CFR 656.17(f)(6), it is important to ensure that information contained in the additional forms of recruitment include information that has also been provided on the ETA Form 9089. Failure to do so could indicate bad faith recruitment efforts on the part of the employer.

7. Matter of Kentrox2012-PER-00038 (May 22, 2014) AILA Doc. No. 1405274 • Issue: How can an employer document infeasibility to train? • Holding: Employer has the burden to prove why it is infeasible to train someone on the job. Merely contending that it is infeasible to train is not enough. However, written assertions that are reasonably specific, indicate their sources or bases, and demonstrate time-sensitivity shall be considered adequate documentation. CO must weigh the evidence fairly. • Practice Pointer: Specificity if key in documenting infeasibility to train.

8. Matter of El Boqueron2012-PER-00164 (April 28, 2014); AILA Doc. No. 14050541 • Issue: Are the jobs substantially comparable? • Holding: Denial of a case involving cooking jobs overturned where the CO took the view that two jobs “mirror” each other. BALCA distinguished Job 1 that required “planning menu and cooking Spanish foods” from Job 2 that required “preparing all cold dishes, salads, foods, dressing, and poultry.” • Practice Pointer: One must describe in detail and delineate the responsibilities for the offered position to show not substantially comparable to prior position. Use percentages and different wording to distinguish jobs.

9. Matter of Maxim Integrated Products2011-PER-02310 (January 16, 2014);AILA Doc. No. 14011047 • Issue: Are the jobs substantially comparable? • Holding: Denial upheld because employer failed to state that alien obtained some of the required experience with the employer. Employer should have articulated its argument in Section K of ETA for 9089. • Practice Pointer: When the employee gained experience with the same employer be upfront and disclose it in Section K of the Form ETA 9089. Use Section K of the Form ETA 9089 to advocate your case by showing how jobs are not substantially comparable.

10. Matter of PARC2011-PER-02969 (April 2, 2014);AILA Doc. No. 14040360 • Issue: Can the CO demand additional documentation that was not requested in the original audit notification letter? • Holding: CO cannot require additional information in the denial if not expressly requested in the original audit notification. CO only required documentation that employee had certain job skill. Statement was provided. CO denied the application because the statement was not sworn before notary public. BALCA overturned holding that CO must give employer adequate notice as to type of documentation required; it is not fair for CO to demand forms of proof not listed in the original audit notification. • Practice Pointer: Follow the instructions carefully. It is not proper for CO to deny an application based on evidence that it did not request in the original audit letter.

11. Matter of General Anesthesia2013-PWD-00005 (January 28, 2014);AILA Doc. No. 14020644 • Issue: Did NPWC abuse its discretion in issuing PWD based on combination of occupations? • Holding: Medical Group wanted to hire an unlicensed medical school graduate to work as a Medical Scientist Assistant. Position required an M.D. degree, no work experience, but 36 months of training in Anesthesiology residency program. Medical Group advocated Medical Scientists, Except Epidemiologists occupational category. NPWC determined position was also similar to Clinical Research Coordinators category which involved managerial responsibilities and thus higher wage. Concluding job duties involved a combination of occupations, NPWC used higher paying occupation. NPWC erred and abused its discretion. BALCA compared 10 job duties of the offered position to each occupation and found that the two occupations only shared three duties. Process must not be implemented in an automatic fashion and NPWC needs to exercise judgment in issuing PWD. No combination of occupations; Medical Scientist was relevant occupation. • Practice Pointer: When drafting job duties, if possible use duties associated with single occupation and do not include higher-level responsibilities associated with managerial occupation unless applicable. If not possible, be prepared to pay higher wage.