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Matter of Symbioun Techs., Inc., 2010-PER-01422 (BALCA Oct. 24, 2011) Order Vacating Denial of Certification

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Matter of Symbioun Techs., Inc., 2010-PER-01422 (BALCA Oct. 24, 2011) Order Vacating Denial of Certification - "The Form ETA 9089 is a legal document and as such the document must be considered in its entirety."

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Matter of Symbioun Techs., Inc., 2010-PER-01422 (BALCA Oct. 24, 2011) Order Vacating Denial of Certification

  1. 1. U.S. Department of Labor Board of Alien Labor Certification Appeals 800 K Street, NW, Suite 400-N Washington, DC 20001-8002 (202) 693-7300 (202) 693-7365 (FAX) Issue Date: 24 October 2011 BALCA No.: 2010-PER-01422 ETA No.: A-10061-88412 In the Matter of: SYMBIOUN TECHNOLOGIES, INC., Employer, on behalf of NUTAN KUMAR BAPUJI BATHULA, Alien. Certifying Officer: William Carlson Atlanta Processing Center Appearances: Ravi Mannam Mannam & Associates LLC Suwanee, GA For the Employer Gary M. Buff, Associate Solicitor Clarette H. Yen, Attorney Office of the Solicitor Division of Employment and Training Legal Services Washington, DC For the Certifying Officer Before: Malamphy, Sarno, Krantz Administrative Law Judges DECISION AND ORDER VACATING DENIAL OF CERTIFICATION
  2. 2. - 2 - This matter arises under Section 212 (a)(5)(A) of the Immigration and Nationality Act, 8 U.S.C. §1182(a)(5)(A), and the “PERM” regulations found at Title 20, Part 656 of the Code of Federal Regulations (“C.F.R.”). BACKGROUND On March 5, 2010, the Certifying Officer (“CO”) accepted for filing the Employer’s Application for Permanent Employment Certification for the position of “Operations Enhancement Analyst (Systems) [Sr.].” (AF 10-33).1 The CO denied the application on June 28, 2010. (AF 7-9). The CO stated that the Employer’s minimum requirements on the ETA Form 9089 could not be established and 20 C.F.R. 656.17(i)(1) requires that the described job requirements represent the employer’s actual minimum requirements for the job opportunity. Specifically, the CO explained that the Employer listed in Question H.4 and H.6 that a “Bachelor’s degree in [Comp Science/Math/Engineering/Technical] or any related field/Business Administration/related field (Accounting [Commerce]/Finance] or Science) and 24 months experience” is required. In Question H.14 the Employer listed an additional requirement of “five years progressive post Baccalaureate experience including, as specified on Line H-6A, at least 2 years experience in the job offered.” (AF 8). On July 28, 2010 the Employer submitted a request for Board of Alien Labor Certification Appeals (“BALCA”) review. (AF 1-5). The Employer argued that the requirements listed on its ETA Form 9089 do not conflict with each other and that the form reflects the Employer’s requirements of 5 years (60 months) progressive post-Baccalaureate experience including 2 years (24 months) of experience in the job offered and an additional 3 years (36 months) of other experience. (AF 1-2). The CO forwarded the case to BALCA on August 10, 2010, and BALCA issued a Notice of Docketing on October 4, 2010. The Employer filed a Statement of Intent to Proceed on October 20, 2010. The CO filed a letter on November 19, 2010 asking that denial be affirmed. After requesting an extension, the Employer filed a brief on December 9, 2010. In its brief, the Employer explained that due to the limitations of the ETA Form 9089, it utilized Question H.14 1 In this decision, AF is an abbreviation for Appeal File.
  3. 3. - 3 - to explain the job requirements that could not otherwise be elaborated in response to the questions in Section H. The Employer argued that “experience in the job offered,” as requested in Question H.6 is distinct from required experience in the general field. Thus, the Employer explained that it specified in Question H.14 that in addition to the 2 years of experience in the job offered listed in Question H-6A, it was also requiring three additional years of post- Baccalaureate experience that did not have to be in the job offered. DISCUSSION The CO denied certification in the instant case because “the employer’s minimum requirements on the ETA Form 9089 cannot be established.” The Employer contends that when the form is read as a whole its requirements are clear. The Employer’s responses as related to its requirements on the ETA Form 9089 are as follows: In Question H.4 Employer checked that a Bachelor’s degree is required in “[Comp Sc/Math/Engg/Tech] or any Rel. Field/Bus. Admin/Rel. Field (Acctng.”2 . (AF 11). In Question H.6 the Employer marked that that 24 months of experience “in the job offered” is required for the job. (AF 12). In response to Question H.14, “specific skills or other requirements,” the Employer included an attachment stating the following: NO SPECIAL SKILL OR OTHER SPECIAL REQUIREMENTS NECESSARY. CONSIDERATION OF FORM ETA 9089 IN ITS ENTIRETY: Form ETA 9089 is a legal document and as such the document must be considered in its entirety. For the foregoing reason we believe it is appropriate for the Employer to elaborate its minimum requirements on Line H-14, as indicated in the following paragraphs. ELABORATION OF LINE H-4, H-4B, H-6, and H-6A: Applicants need to have a B.S./B.A (Or Foreign Equiv.) in [Computer Science / Mathematics / Engineering / Technology] or any Related Field / Business Administration / Related Field (Accounting [Commerce] / Finance) or Science and 5 years 2 The copy of the ETA Form 9089 in the Appeal File cuts off the remainder of the answer.
  4. 4. - 4 - progressive post Baccalaureate experience, including, as specified on Line H-6A, at least 2 years of experience in the Job Offered. To determine experience in the job offered, employer does not consider job titles, but job duties as dispositive on this issue. (AF 21). The Employer argued in its brief “experience in the job offered is not synonymous to the total years of experience required for the proffered position. Requiring experience specifically in performing the current job opportunity does not preclude, or otherwise replace, additional experience in the general field or other fields that is also an essential part of the actual minimum experience requirements.” Employers are restricted in their responses by the limitations of the ETA Form 9089. Question H.6 asks specifically “is experience in the job offered required for the job” and includes a box to check “yes” or “no” (emphasis added). Question H.6-A then asks “if yes, number of months experience required.” BALCA has interpreted the question as the Employer did in this case, that “experience in the job offered” is experience performing the key duties of the job opportunity, specifically those listed in Question H.11. See, e.g. Duracraft of Georgia Siding & Window Company, 2008-PER-149 (Feb. 25, 2009); Maple Derby, Inc., 1989-INA-185 (May 15, 1991). Thus, Question H.6 cannot be properly used to list a requirement for experience other than in the key duties of the job offered. In the instant case, the Employer’s intention was to list as a requirement three additional years of post-baccalaureate experience that did not necessarily have to be in the job offered. Therefore, the Employer turned to Question H.14 to elaborate that requirement. It did so clearly by stating, “5 years progressive post Baccalaureate experience, including, as specified on Line H-6A, at least 2 years of experience in the Job Offered.” We interpret that as the Employer states it intended it: Five total years of post-baccalaureate experience is required for the job, including the two years previously listed that must be in the job offered. To use the Employer’s example, to not allow such a clarification in Section H.14 would prevent a law firm seeking to hire a senior employment litigation attorney from requiring five years practicing law, at least two of which must be practicing employment law. The Employer’s requirement is not as specific as that example, requiring only generic “post-baccalaureate experience” but the CO’s reason for denial
  5. 5. - 5 - did not go to the content of the requirement, only to its clarity. We find that a comprehensive reading of all of Section H makes clear what the Employer’s minimum requirements are. We do not decide whether those experience requirements (five years of post-baccalaureate experience, at least two of which are in the job offered) represent the Employer’s actual minimum requirements and otherwise comply with the regulations. We do find they were accurately and as clearly as possible represented on the ETA Form 9089. Accordingly, we vacate the CO’s denial of certification and remand the application for further processing. ORDER IT IS ORDERED that the denial of labor certification in this matter is hereby VACATED and this matter is returned to the CO for completion of processing. For the Panel: A RICHARD K. MALAMPHY Administrative Law Judge RKM/AMC/jcb Newport News, Virginia NOTICE OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Order will become the final decision of the Secretary unless within twenty days from the date of service a party petitions for review by the full Board. Such review is not favored and ordinarily will not be granted except (1) when full Board consideration is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance. Petitions must be filed with: Chief Docket Clerk Office of Administrative Law Judges Board of Alien Labor Certification Appeals 800 K Street, NW Suite 400 Washington, DC 20001-8002 Copies of the petition must also be served on other parties and should be accompanied by a written statement setting forth the date and manner of service. The petition shall specify the basis for requesting full Board review with supporting authority, if any, and shall not exceed five double-spaced pages. Responses, if any, shall be filed within ten days of service of the petition, and shall not exceed five double-spaced pages. Upon the granting of a petition the Board may order briefs.

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