by Meredith W. Barnette, Parter of ABIL Lawyer, Steve Garfinkel
Garfinkel Immigration Law Firm
The first step of the U.S. employment-based permanent residence process for many foreign nationals is generally the labor certification process. In 2005, in an effort to streamline the process and provide faster adjudication, the Department of Labor (DOL) established an online, attestation based process for submitting labor certification applications, commonly known as PERM. Instead of having the intended effect, the PERM process has become infamous for being complicated, challenging, and lengthy.
The most recent challenge presented by the Department of Labor (DOL) in adjudicating PERM applications is the resume review process conducted during the labor market test by the sponsoring U.S. employer. Recent decisions by both the DOL and the Board of Alien Labor Certification Appeals (BALCA) have placed a more onerous burden on the employer in reviewing resumes of applicants for the permanent position. A BALCA decision from November 2013 upheld the Certifying Officer’s denial of a PERM application on the basis that the Employer improperly rejected three U.S. workers for reasons that were not job-related.¹ The Employer acknowledged that the three pertinent resumes indicated significant experience in general carpentry and/or construction, but argued that the type of experience listed on each resume did not qualify any of the applicants for the offered position, since none of the resumes listed the specific experience the Employer required in hardwood floor installation.
The Certifying Officer noted that lacking a skill that may be acquired during a reasonable amount of on-the-job training is not a lawful basis for rejecting an otherwise qualified U.S. worker. BALCA upheld the denial, citing a regulation that states how a Certifying Officer determines whether to grant or deny certification of the application, namely that a U.S. worker is considered able and qualified for the position if the worker can acquire the skills necessary to perform the job duties involved during a reasonable period of on-the-job training.² BALCA went on to state that when a U.S. applicant’s resume raises the reasonable prospect that the applicant meets an employer’s requirements, the employer has a duty to make a further inquiry into whether the applicant actually meets all of the requirements.
This decision puts the burden on employers to contact any U.S. worker applicant who could possibly meet the minimum requirements. The employer must then document when each applicant was contacted; by what means (traceable letter, email, telephone call, etc.) each applicant was contacted; that each applicant actually received any correspondence; and why each applicant would not be able to perform the job duties with a reasonable period of on-the-job training. The term “reasonable” is not defined by DOL and it is left to the employer to convincingly argue that it is unreasonable for applicants with some of the required experience to perform the job duties with on-the-job training.
The decision also states that an employer’s mere statement alone asserting that the requirements are the actual minimum requirements needed to perform the job duties, is insufficient to meet the employer’s burden to establish eligibility for labor certification. This decision reinforces the DOL’s requirement of evidencing business necessity to support the minimum requirements. In the past, business necessity was only documented where the requirements were considered excessive, the job required a foreign language, or the job was a combination of occupations. However, with this decision, employers should be prepared to provide detailed and persuasive evidence, in existence at the time of filing the PERM application, to support the minimum requirements for the position where there are applicants who appear to possess some of the required experience. The business necessity argument is then needed to explain why an individual who does not meet all of the requirements cannot perform the job duties within a reasonable period of on-the-job training.
Interestingly, the BALCA decision in this case noted that “PERM is an exacting process, designed to eliminate back-and-forth between applicants and the government, and to favor administrative efficiency over dialogue in order to better serve the public interest overall, given the resources available to administer the program.”³ PERM is an exacting process, but administrative efficiency is not a reality given the government’s current processing time of 8 months for regular processing, and approximately 15 months for audited cases.
For more information on the PERM process please see our website at (http://garfinkelimmigration.com/about-us-visas/labor-certification-perm/ ¹ In the Matter of Twins, Inc. d/b/a Twins Hardwood Floors, BALCA Case No. 2012-PER-00392 (Nov. 1, 2013)
² 20 CFR § 656.24(b)(2)(i)
³ In the Matter of Twins, Inc. d/b/a Twins Hardwood Floors, BALCA Case No. 2012-PER-00392 (Nov. 1, 2013)
Garfinkel Immigration Law Firm
The first step of the U.S. employment-based permanent residence process for many foreign nationals is generally the labor certification process. In 2005, in an effort to streamline the process and provide faster adjudication, the Department of Labor (DOL) established an online, attestation based process for submitting labor certification applications, commonly known as PERM. Instead of having the intended effect, the PERM process has become infamous for being complicated, challenging, and lengthy.
The most recent challenge presented by the Department of Labor (DOL) in adjudicating PERM applications is the resume review process conducted during the labor market test by the sponsoring U.S. employer. Recent decisions by both the DOL and the Board of Alien Labor Certification Appeals (BALCA) have placed a more onerous burden on the employer in reviewing resumes of applicants for the permanent position. A BALCA decision from November 2013 upheld the Certifying Officer’s denial of a PERM application on the basis that the Employer improperly rejected three U.S. workers for reasons that were not job-related.¹ The Employer acknowledged that the three pertinent resumes indicated significant experience in general carpentry and/or construction, but argued that the type of experience listed on each resume did not qualify any of the applicants for the offered position, since none of the resumes listed the specific experience the Employer required in hardwood floor installation.
The Certifying Officer noted that lacking a skill that may be acquired during a reasonable amount of on-the-job training is not a lawful basis for rejecting an otherwise qualified U.S. worker. BALCA upheld the denial, citing a regulation that states how a Certifying Officer determines whether to grant or deny certification of the application, namely that a U.S. worker is considered able and qualified for the position if the worker can acquire the skills necessary to perform the job duties involved during a reasonable period of on-the-job training.² BALCA went on to state that when a U.S. applicant’s resume raises the reasonable prospect that the applicant meets an employer’s requirements, the employer has a duty to make a further inquiry into whether the applicant actually meets all of the requirements.
This decision puts the burden on employers to contact any U.S. worker applicant who could possibly meet the minimum requirements. The employer must then document when each applicant was contacted; by what means (traceable letter, email, telephone call, etc.) each applicant was contacted; that each applicant actually received any correspondence; and why each applicant would not be able to perform the job duties with a reasonable period of on-the-job training. The term “reasonable” is not defined by DOL and it is left to the employer to convincingly argue that it is unreasonable for applicants with some of the required experience to perform the job duties with on-the-job training.
The decision also states that an employer’s mere statement alone asserting that the requirements are the actual minimum requirements needed to perform the job duties, is insufficient to meet the employer’s burden to establish eligibility for labor certification. This decision reinforces the DOL’s requirement of evidencing business necessity to support the minimum requirements. In the past, business necessity was only documented where the requirements were considered excessive, the job required a foreign language, or the job was a combination of occupations. However, with this decision, employers should be prepared to provide detailed and persuasive evidence, in existence at the time of filing the PERM application, to support the minimum requirements for the position where there are applicants who appear to possess some of the required experience. The business necessity argument is then needed to explain why an individual who does not meet all of the requirements cannot perform the job duties within a reasonable period of on-the-job training.
Interestingly, the BALCA decision in this case noted that “PERM is an exacting process, designed to eliminate back-and-forth between applicants and the government, and to favor administrative efficiency over dialogue in order to better serve the public interest overall, given the resources available to administer the program.”³ PERM is an exacting process, but administrative efficiency is not a reality given the government’s current processing time of 8 months for regular processing, and approximately 15 months for audited cases.
For more information on the PERM process please see our website at (http://garfinkelimmigration.com/about-us-visas/labor-certification-perm/ ¹ In the Matter of Twins, Inc. d/b/a Twins Hardwood Floors, BALCA Case No. 2012-PER-00392 (Nov. 1, 2013)
² 20 CFR § 656.24(b)(2)(i)
³ In the Matter of Twins, Inc. d/b/a Twins Hardwood Floors, BALCA Case No. 2012-PER-00392 (Nov. 1, 2013)
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