News from the Courts

Posted on: August 9th, 2017
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BALCA Affirms Denial, Finds Employer Did Not Meet Burden in Rejecting Applicant

In September 2011, an employer filed a permanent labor certification application, sponsoring an alien to hold the position of “Fire Protection Engineering Technician” and receive financial compensation of between $51,542.00 and $56,160.00 annually. While no educational prerequisite was required in the application, a minimum of two years’ experience in “Fire Protection Engineering Technology” was necessary for consideration. Later that year in November, the Certifying Officer (CO) in the case issued an Audit Notification, reflecting the application’s selection for audit and directing to the employer to submit evidence supporting his recruiting efforts. The employer sent his response to the audit notification on December 7, 2011, which included the recruitment report which indicated that the Employer received 11 resumes from applicants from the U.S., none of which were up to the standards required for the position. The employer also included in the report that a response was issued by Mr. K, “a foreign worker with two years training from Seneca College in Fire Protection Engineering Technology and four years’ experience.” The employer concluded that due to a lack of qualified domestic applicants, he offered the position to Mr. K. Also included in the report was a recruiting summary which stated that two of the U.S. applicants’ interviews were conducted over the phone were rejected for a “Specific Job-Related Reason”, and another applicant, JF, was denied an interview altogether because of his lack of “required training or experience.”

The CO submitted a denial letter to the request of the employer on March 28, 2012, asserting that a U.S. worker did in fact meet the requirements outlined by the employer. The applicant JF met the requirements listed by the employer in both training and job experience, serving as a Fire Protection Manager in the Air Force. Furthermore, JF had acquired eight years of experience as Fire Chief for the City of Marble Falls, TX and served as the Captain of Fire Department Operations, included in which was two years’ service as Code Compliance Captain for the Prevention Division.

The employer filed an application for the CO to reconsider the ruling, including a statement from the President of the company, Mark Tate, who outlined his disagreement with the finding of the CO. The CO’s fundamental misunderstanding of the responsibilities of the Fire Protection Engineering Technician was what caused the incorrect determination. According to Tate, the company’s objective was to design and install fire sprinkler and suppression systems, and specific to the position in question responsibilities include designing and drafting plans and estimating costs for installing fire protection systems for facilities and structures. The position required knowledge of drafting, physical science, engineering principles, and fire protection codes. These technicians typically use programs such as HydraCad and HydraList in order to perform their occupational duties. Tate also mentioned that, as mentioned in the application filed by the employer, two years of training and one year of experience is also a prerequisite for consideration. Tate asserted that the denial of a physical interview to JF was based on his lack of experience in design or with the HydraList or HydraCad programs, and none of his experience pertained to fire protection system installation or design.

The CO’s rebuttal to the employer’s request for reconsideration stated that the issue was not the requirements for the position including programs such as HydraCAD and HydraList, but rather that the employer failed to include these requirements on its application. Additionally, the recruitment report filed by the employer indicated that JF filed his application for the position through the Texas State Workforce Agency job order, in which the recruitment effort omits those programs as a requirement. Furthermore, the CO concluded that the employer rejected JF’s application before properly determining whether JF had knowledge of the programs.

The Board asserted that when applying to sponsor a foreign worker, it is the responsibility of the employer to adequately demonstrate that there are no qualified, able, and willing workers in the U.S. for the position which is to be held on a permanent basis by the alien. Regulations dictate a U.S. worker is able to perform duties for which he or she will be responsible in the position if the U.S. worker is able to acquire the skill(s) within a reasonable period of on-site training, and thus would not be justifiably denied opportunity for the position if he or she does not have said skills at the time of hire. It is the responsibility of the employer to satisfy all regulatory requirements before a CO can grant certification. The Board concluded that, when assessing all of JF’s prior work experience as a Fire Chief and Captain, it is reasonable to assume that the applicant would have been capable of acquiring the necessary skills, which predicated the employer’s denial of his application, within a reasonable amount of training on the job. Accordingly, the Board affirmed the decision of the CO to deny certification.

For more information, view the full case.

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BALCA Affirms Denial of Second PERM While First PERM Is Pending Before BALCA

A petition filed in late July 2012 by an employer applying for permanent employment was denied by a Certifying Officer (CO) on the basis of the application’s congruity to another pending application before the Board of Alien Labor Certification Appeals (BALCA) which was filed by the same employer for the same alien to be appointed to the same position. In October of the same year, the employer, contending difference between the two applications, submitted a Request for Reconsideration. Outlining the differences, the employer noted the job requirements, the skill level determined by the Prevailing Wage Determination (PWD), and the offered salary were all dissimilar. Also presented by the employer was an excerpt from a FAQ from the Program Electronic Review Management (PERM) which stated that the job identified and the salary requirements must be identical to be considered an identical job offer. The CO denied the employer’s Request for Reconsideration a month later, asserting that the SOC/O*NET (OES) codes and job duties for the position listed in the application were the same as the position in the other application. This led the CO to the conclusion that the applications for the same alien for the same position.

The CO transmitted the file to BALCA, which issued a Notice of Docketing in late June 2013, and in July, the employer filed a statement of intent to proceed. The employer resubmitted its Request for Reconsideration on July 24, 2013. On March 2, 2017, BALCA issued an Order Requiring Certification on Mootness, and five days later, the employer filed a response contesting the case was not moot.

The regulations specifically state that processing more than one application for the same person in the same position, “a new application for the same occupation for the same alien cannot be filed while a request for review is pending with the Board of Alien Labor Certification Appeals.” The employer’s application was denied by the CO for this reason, and the employer’s reconsideration request revolves around the incongruity of the applications due to the PWD determination of a different skill level and education requirement.

In April 2008, the New York State Department of Labor issued a PWD for the employer, after the employee submitted information identifying the position title as “Medical & Health Services Manager.” The employer also listed in the application for a foreign worker named “Christine A. Ignacio” a graduate degree in dentistry and one-month training as a dentist as the job requirements for the position. The listed responsibilities for the position were to “[p]lan, direct or coordinate medicine and health services in clinics; manage organizations or similar organizations.  Oversee administrative tasks including bookeepping [sic], buying equipment and supplies; supervise employees.” The New York State Department of Labor came to conclusion, after analyzing the information the employer provided, that the skill level for the position listed was 1 and it warranted an annual prevailing wage of $65,125.00.

Almost four years later, in March 2012, the employer received a PWD from the U.S. Department of Labor for a position entitled “Medical and Health Services Manager.” The job requirements listed for this position were a Doctor of Dental Medicine and 12 months experience in the position of Dentist, and the responsibilities listed were to “[p]lan, direct or coordinate medicine and health services in clinics; no pts. care; manage organizations, oversee administrative tasks including bookkeeping, buying equipment and supplies; supervise employees.” The U.S. Department of Labor decided that, after weighing the information provided, the skill level for this position was 2 and that the prevailing wage should be $115,170.00.

While the employee, job site, job title, and all other aspects of the application were identical, the difference between the two was in regard to the skills and experience required and the financial compensation. BALCA determined that this increase in prevailing wage was a direct result of the heightened requirements of Doctor of Dental Medicine instead of a graduate degree in Dentistry and 12 months experience as a dentist instead of one-month training. This did not, however, constitute to BALCA an entirely different position. The employers evidence of the FAQ was also inadequate, due to it pertaining to applications filed under pre-PERM program and applications re-filed under PERM regulations, as was not the situation in her instance. BALCA pointed out that the employer had the capability to withdraw the pending appeal and file a new petition, but since two applications were submitted for the same alien and the same position, which is against regulations, they affirmed the decision of the CO.

For more information, view the full case.

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