U.S. Department of Labor                  Board of Alien Labor Certification Appeals                                      ...
DECISION AND ORDER                     AFFIRMING DENIALS OF CERTIFICATION        These matters arise under section 212(a)(...
(“SVP”) years required for its alternative requirements is incorrect. (AF 4). The Employer assertsthat its alternative req...
“cannot exceed the Specific Vocational Preparation (“SVP”) level assigned to the occupation asshown in the O*NET job zones...
Employer explained that it would accept “any suitable combination of education, training orexperience . . . , i.e. three y...
Accordingly, because an applicant may be required to have up to 13 years of experience6under the Employer’s alternative re...
NOTICE OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Orderwill become the final decision of the Secretary unles...
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MPHASIS Corporation 2011 PER-02675 etc (Nov 21, 2012) (BALCA)

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MPHASIS Corporation 2011 PER-02675 etc (Nov 21, 2012) (BALCA)

  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: 21 November 2012 In the Matters of: The purpose of the SVP levels is to ensure that the job requirements MPHASIS CORP., are not tailored to the alien identified in the application, but rather are Employer, tailored to the position itself. St. Mobile Aerospace Engineering, Inc., at 4, 2009-PER-00429 (July 9, 2010). on behalf of SHINY CHACKO, BALCA Case No.: 2011-PER-02549 ETA Case No.: A-08346-13407 SASIKUMAR CHANDRAN, BALCA Case No.: 2011-PER-02640 ETA Case No.: A-08319-05393 SWAGAT DASH, BALCA Case No.: 2011-PER-02657 ETA Case No.: A-09022-22788 RAO SUBRAHMANYA BALCA Case No.: 2011-PER-02675 TARIKERE RANGANATHA, ETA Case No.: A-09027-23990 Aliens. Certifying Officer: William Carlson Atlanta Processing Center Appearances: Melissa L. C. Chan, Esq. The Chugh Firm, APC Santa Clara, CA For the Employer Gary M. Buff, Associate Solicitor Office of the Solicitor Division of Employment and Training Legal Services Washington, DC For the Certifying Officer Before: Calianos, Geraghty, McGrath Administrative Law Judges JONATHAN C. CALIANOS Administrative Law Judge
  2. 2. DECISION AND ORDER AFFIRMING DENIALS OF CERTIFICATION These matters arise under section 212(a)(5)(A) of the Immigration and Nationality Act, 8U.S.C. § 1182(a)(5)(A), and the “PERM” regulations found at Title 20, Part 656 of the Code ofFederal Regulations (“C.F.R.”). The above captioned cases have been consolidated because theypresent the common issue of whether the Certifying Officer (“CO”) of the Employment andTraining Administration (“ETA”), Office of Foreign Labor Certification (“OFLC”) correctlydenied labor certification for three foreign workers on grounds that the Employer had notcomplied with 20 C.F.R. § 656.17(h)(4)(i), which requires the Employer’s alternative jobrequirements to be substantially equivalent to its primary job requirements. For the reasons setforth below, we affirm the denials of the Employer’s Applications for Permanent EmploymentCertification. BACKGROUND On February 4, 2009, the Certifying Officer (“CO”) accepted for filing the Employer’sApplication for Permanent Employment Certification for the position of “Systems Specialist.”(AF 44).1 The CO did not conduct an audit, but instead denied the application on February 5,2010, because the alternative requirements for the job opportunity listed in the Employer’s ETAForm 9089 are not substantially equivalent to the primary requirements in violation of 20 C.F.R.§ 656.17(h)(4)(i). (AF 41). Specifically, the CO stated: [T]he employer’s alternative combination of education and experience, three years of experience for each missing year of university, college education in lieu of bachelor’s degree or foreign equivalent, is not substantially equivalent to the employer’s primary requirements of a bachelor’s degree in group item H.4 and 12 months experience as a Systems Specialist. The primary combination of education and experience equates to 3 years while the alternative combination totals 13 years . . . . On March 5, 2010, the Employer filed a request for reconsideration. (AF 3-39). TheEmployer argued that the CO’s assessment of the number of Specific Vocational Preparation1 The facts and arguments presented in each captioned appeal are virtually identical. Thus, for purposes of thisDecision and Order, we will cite to a representative appeal file, 2011-PER-02657, which will be referenced to as“AF” followed by the page number. -2-
  3. 3. (“SVP”) years required for its alternative requirements is incorrect. (AF 4). The Employer assertsthat its alternative requirement of 3 years of experience for every year of missingcollege/university level credit equals only 2 SVP years (the amount of SVP years equivalent to aBachelor’s degree) instead of 12 SVP years. The Employer reasoned that experience gainedwithout a Bachelor’s degree cannot be equated with experience gained with a Bachelor’s degree.(AF 4, 8). To support this assertion, the Employer submitted as “Exhibit A” a letter by ProfessorJaswinder Pal Singh from Princeton University’s Department of Computer Science who opinedthat “three years of qualifying, relevant experience is frequently viewed as correlating accuratelyto the content of a single year of concentrated, academic study in the same field.” (AF 8). TheEmployer argued that assigning the same number of SVP years to two years of experience as to aBachelor’s degree suggests that 2 years of experience is equal to 4 years of schooling towards aspecialized degree, and provides no incentive to acquire a formal education. (AF 10). On August 31, 2011, the CO upheld his denial pursuant to 20 C.F.R. § 656.17(h)(4)(i)and forwarded the case to BALCA.2 On December 14, 2011, BALCA issued a Notice ofDocketing. The Employer filed a Statement of Intent to Proceed on December 27, 2011, but didnot file an appellate brief. The CO did not file a Statement of Position. On September 10, 2012,the Employer certified via email that the job identified on the PERM application is still open andavailable and that the alien identified in the application remains ready, willing, and able to fill theposition. DISCUSSION Employers may include in their ETA Form 9089 alternative job requirements in additionto primary job requirements, so long as the alternative requirements are “substantially equivalentto the primary requirements of the job opportunity for which certification is sought.” 20 C.F.R.§ 656.17(h)(4)(i). According to 20 C.F.R. § 656.17(h), the requirements for a job opportunity2 The CO’s explanation for upholding his denial in his transmittal letter is flawed for several reasons. In his denialletter, the CO originally found that the primary requirements in section H.4 and H.6 of the application are notsubstantially equivalent to the alternative requirement in section H.14. However, in his transmittal letter he statedthat the denial letter indicated that sections H.4 and H.6 are not substantially equivalent to alternative requirementsin sections H.8A and H.8C. Second, the CO incorrectly interpreted the Employer’s requirements in H.8A and H.8Cand miscalculated the number of SVP years required by H.8A and H.8C. However, this does not affect ouraffirmance of the CO’s denial because we find, as discussed below, that based on the CO’s original denial, theEmployer’s alternative requirements as explained in H.14 are not substantially equivalent to the Employer’s primaryrequirements in H.4 and H.6. -3-
  4. 4. “cannot exceed the Specific Vocational Preparation (“SVP”) level assigned to the occupation asshown in the O*NET job zones.” SVP means “the amount of lapsed time required by a typicalworker to learn the techniques, acquire the information, and develop the facility needed foraverage performance in a specific job-worker situation.” 20 C.F.R. § 656.3. The SVP rangeassociated with the position identified in the Employer’s application is “7.0 to < 8.0.” See O*NetOnline, Summary Report for: 15-1132.00 - Software Developers, Applications,http://www.onetonline.org/link/summary/15-1132.00 (last visited November 15, 2012). A SVPLevel 7 requires at least 2 SVP years and no more than 4 SVP years. 20 C.F.R. § 656.3. The Preamble to the Final Rule implementing the PERM regulations specificallyaddresses how to translate an education level into its experiential equivalent. The Preamble statesthat, utilizing Field Memorandum No. 48-94 (May 16, 1994) as guidance, “a bachelor’s degree isequivalent to 2 years [SVP].” ETA, Final Rule, Labor Certification for the PermanentEmployment of Aliens in the United States; Implementation of New System, 69 Fed. Reg. 77326,77332 (December 27, 2004). The purpose of the SVP levels is to ensure that the job requirementsare not tailored to the alien identified in the application, but rather are tailored to the positionitself. St. Mobile Aerospace Engineering, Inc., PDF at 4, 2009-PER-00429 (July 9, 2010). The Employer indicated in its ETA Form 9089, sections H.4 and H.6 that the primary jobrequirements for the position identified were a Bachelor’s degree in Computer Science,Computer Applications, Computer Engineering, or Computer Information Systems, and 12months of experience in the job offered.3 (AF 4-5, 44-45). The Employer stated in section H.7that it would also accept a Bachelor’s degree in Electronic Engineering, Electrical Engineering,any Engineering field, Math, Physics, or related field, and in section H.9 that it would accept aforeign equivalent. (AF 4-5, 45). In section H.10, it stated that it would accept 12 monthsexperience in the following alternate occupations: software consultant, systems engineer,software engineer, programmer, or related work. (AF 4-5, 45). In sections H.8A-C, the Employer stated that it would accept as an alternative to aBachelor’s degree, a “foreign three-year Bachelor degree or equivalent university/college [levelcredit]” and 3 years of experience. (AF 4-5, 45). In section H.14 of the application, the3 In the application associated with case number 2011-PER-02640, the Employer does not require the one yearexperience in the job offered. -4-
  5. 5. Employer explained that it would accept “any suitable combination of education, training orexperience . . . , i.e. three years of experience for each missing year of university/collegeeducation in lieu of a Bachelor’s degree or foreign equivalent.”4 (AF 4-5, 45). The CO and Employer both agree that the total SVP years for the Employer’s primaryrequirements of a Bachelor’s degree and 1 year of experience equals 3 SVP years according theField Memorandum and the Preamble to the Final Rule. However, the CO states that theEmployer’s alternative requirement of “three years of experience for each missing year ofuniversity/college education” is not substantially equivalent to the Employer’s primaryrequirements because the alternative requirement requires as much as 13 SVP years,5 comparedto the 3 SVP years under the primary requirements. The Employer argues that one year ofexperience without a Bachelor’s degree is not the equivalent of one year of experience with aBachelor’s degree. Instead, the Employer argues that 3 years of experience without a degree isthe equivalent of 1 year of university/college. Thus, 12 years of experience is the equivalent of aBachelor’s degree, and because a Bachelor’s degree is 2 SVP years, so is 12 years of experiencewithout a degree. There is nothing in the PERM regulations, regulatory history, or the Field Memorandumthat supports a finding that 3 years of experience without a degree is the equivalent of one yearof college/university level credit. Furthermore, the relevant authority provides no distinctionbetween experience gained with a degree and experience gained without a degree. Thus, basedon a straightforward application of 20 C.F.R. § 656.3 and the Field Memorandum, we find that 1year of experience (with or without a degree) equals 1 SVP year, and a Bachelor’s degree equals2 SVP years.4 Some of the Employer’s listed requirements in its ETA Form 9089, specifically in sections H.4B, H.7A, H.8B, andH.10B, were cut off as a result of the restricted amount of space available to fill in its requirements. For purposes ofthis decision, we have accepted the Employer’s articulation of its primary and alternative requirements.5 We assume that this number is derived as follows: 4 years of college/university x 3 years of experience per year =12 years; 12 years + the required 1 year experience = 13 years. -5-
  6. 6. Accordingly, because an applicant may be required to have up to 13 years of experience6under the Employer’s alternative requirements, in comparison to 3 years under the primaryrequirements, the two sets of requirements are not substantially equivalent, and we thereforeaffirm the CO’s denials of certification pursuant to 20 C.F.R. § 656.17(h)(4)(i). See St. MobileAerospace Engineering, Inc., 2009-PER-00429 (July 9, 2010); Globalnet Management L.C.,2009-PER-00110 (August 6, 2009). ORDER It is ORDERED that the denials of labor certification in this matter are herebyAFFIRMED. For the Panel: JONATHAN C. CALIANOS Administrative Law Judge6 We note that this also exceeds the maximum of 4 years of experience for a SVP Level 7 position under 20 C.F.R.§ 656.3. -6-
  7. 7. NOTICE OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Orderwill become the final decision of the Secretary unless within twenty days from the date of servicea party petitions for review by the full Board. Such review is not favored and ordinarily will notbe granted except (1) when full Board consideration is necessary to secure or maintainuniformity of its decisions, or (2) when the proceeding involves a question of exceptionalimportance. 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 20001-8002Copies of the petition must also be served on other parties and should be accompanied by awritten statement setting forth the date and manner of service. The petition shall specify thebasis for requesting full Board review with supporting authority, if any, and shall not exceed fivedouble-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 mayorder briefs. -7-

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