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U.S. Department of Labor            Board of Alien Labor Certification Appeals                                    800 K St...
BACKGROUND        The Employer filed a labor certification application sponsoring the Alien for a position asa “Civil Engi...
U.S. worker than it requires of the alien; the employer is not allowed to treat the alien morefavorably than it would a U....
CO must consider them in making the relevant determination and give them the weight that theyrationally deserve. In Carlos...
Responses, if any, shall be filed within ten days of service of the petition, and shall not exceed fivedouble-spaced pages...
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Thomas L Brown Assoc 2012-PER-01735 (Nov 27, 2012) (BALCA)

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Bogus position description and inflated requirements are being caught in the PERM application. These folks did NOT have to wait to be told NO. They did not slip this past DOL to await a denial from USCIS and then AAO. The BALCA Dismissal came much sooner and FASTER than would have been the case IF this bogus application had been approved and used to file an I-140!

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Thomas L Brown Assoc 2012-PER-01735 (Nov 27, 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: 27 November 2012 This one looks like, an existing non-immigrant worker was already working for the employer and that worker just happened to complete a BALCA No.: 2012-PER-01735 Masters Degree so they filed in the hopes of ETA No.: A-11024-48222 attaining an EB-2 classification instead of the EB-3 that the POSITION was more suited for. In the Matter of: Far too many folks try this and often it does not get caught until the I-140 is filed. USCIS THOMAS L. BROWN ASSOCIATES, PC, had been until quite recently the agency to Employer, catch this doomed ploy but DOL through PERM is starting to weed out these on behalf of unsuitable PERM applications. In this case, it was probably and H1-B worker twisting the LAURISTON AUGUSTUS, LAWRENCE, arm of the employer and an employer who Alien. did not understand that the history of the REAL requirements for this position would be Certifying Officer: William Carlson so obvious. Employers need to be aware that Atlanta Processing Center "doing favors" by changing a job description Appearances: Winston Wen-Hsiung Tsai, Esquire and/or the basic requirements will get caught Bethesda, Maryland by someone. Dont do it! It is a waste of time, For the Employer money, and effort (for EVERYONE)! Before: Colwell, Johnson and Vittone Administrative Law Judges DECISION AND ORDER AFFIRMING DENIAL OF CERTIFICATION PER CURIAM. This matter arises under the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(5)(A) and the implementing regulations at 20 C.F.R. Part 656.
  2. 2. BACKGROUND The Employer filed a labor certification application sponsoring the Alien for a position asa “Civil Engineer.” (AF 24-33).1 The Certifying Officer (“CO”) denied certification on theground that the educational requirement for the job described in the Form 9089 application didnot reflect the Employer’s actual minimum requirements. Specifically, the Employer designatedthe job requirements of a master’s degree and 12 months of experience. The CO stated that theForm 9089 indicated, however, that the Alien “attained the Master’s Degree in Civil Engineeringin 2008, while working in a position by the employer that appears to be identical to [the] CivilEngineer position listed in [the application].” The CO found, therefore that the master’s degreerequirement did not represent the Employer’s actual minimum requirement for the position as ithad been willing to hire the Alien for the position without a master’s degree. (AF 20-21). The Employer filed a motion for reconsideration. (AF 2-19). The Employer’s attorneyargued that the Alien had a bachelor of science in civil engineering and had completed all thecourse requirements for a master’s degree in civil engineering, except for the defense of hismaster’s thesis, when hired by the Employer. (AF 2). The Employer’s president argued thatwhen the alien beneficiary is already employed by the sponsoring employer, the regulation at 20C.F.R. § 656.17(i)(3) only provides authority for the Department of Labor to assess the trainingand experience possessed by the alien at the time of hire – not the level of education – indetermining whether the job requirements reflect the employer’s actual minimum requirements.The Employer’s president further argued that when assessing whether educational requirementsare actual minimum requirements, the regulation at 20 C.F.R. § 656.17(i)(4), provides that theDepartment of Labor will not consider any education or training obtained by the alienbeneficiary at the employer’s expense. The Employer’s president averred that, in contrast, itprovided no educational or training assistance to the Alien. In regard to the CO’s concern thatthe Alien was working in a position seemingly identical to the position listed in the PERMapplication at the time of attaining the master’s degree, the Employer’s president contended thatthe Alien was not working at “the subject opening position before, at, nor after the time ofattaining his Master’s Degree, but seldom providing assistance to senior Civil Engineers tocomplete their advanced level duties for pertinent projects.” (AF 4). The CO reconsidered, but not convinced by the Employer’s arguments onreconsideration, found that the ground for denial of certification was valid. On appeal, neither the CO nor the Employer filed an appellate brief. DISCUSSION When an employer sponsors an alien for permanent employment in the United States, it isrequired to state on the application with the Department of Labor for labor certification its actualminimum requirements for the job opportunity. 20 C.F.R. § 656.17(i)(1). This regulatoryrequirement addresses the situation of an employer requiring more stringent qualifications of a1 Citations to the appeal file will be abbreviated “AF” followed by the page number. -2-
  3. 3. U.S. worker than it requires of the alien; the employer is not allowed to treat the alien morefavorably than it would a U.S. worker. ERF Inc., d/b/a Bayside Motor Inn, 1989-INA-105 (Feb.14, 1990) (decided under similar pre-PERM regulation). One circumstance that may suggest that an employer has not listed its actual minimumrequirements is the situation where the alien beneficiary was hired by the employer for the jobfor which labor certification is sought without the alien possessing the qualifications now beingrequired of U.S. workers. In the instant case, when the Alien was hired he had not yet obtaineda master’s degree. The assertion by the Employer’s attorney that the Alien had completed allrequirements for a master’s degree except defense of his master’s thesis does not change the factthat he only possessed a bachelor’s degree when hired. Thus, the CO had valid grounds forraising the actual minimum requirements issue. The Employer’s president raised two defenses to the CO’s finding that the master’sdegree was not an actual minimum requirement – one based on regulatory interpretation, and oneapparently based on a suggestion that the job the Alien was hired to do was not the same as thejob that is the subject of the labor certification. In regard to regulatory interpretation, the Employer’s president noted that the subsectionat 20 C.F.R. § 656.17(i)(3) only speaks about experience and training (and not education)provided by the sponsoring employer, and that the subsection at 20 C.F.R. § 656.17(i)(4) focuseson employer-reimbursed education and training. We find, however, that these subsections aremerely provisions that provide means by which an employer can avoid having the applicationdenied for failure to list actual minimum requirements based on hiring of an alien without thosequalifications. They are exceptions, not limitations on the CO’s authority to review educationalrequirements that exceed those in place when the alien was hired.2 The Employer’s president’s second defense is found in his statement that the alien “wasnot working at the subject opening position before, at, nor after the time of attaining his Master’sDegree, but seldom providing assistance to senior Civil Engineers to complete their advancedlevel duties for pertinent projects.” In Gencorp, 1987-INA-659 (Jan. 13, 1988) (en banc), theBoard held that where an employer is required to prove the existence of an employment practiceor the performance of an act and its results, written assertions which are reasonably specific andindicate their sources or bases shall be considered documentation. The Board, however, notedthat this is not to say that a CO must accept such assertions as credible or true, but only that the2 Often, an alien is hired without the experience or employer-sponsored training that is listed on the application.The regulations bar use of experience or training gained with the employer unless the positions at issue are notsubstantially comparable or the employer demonstrates that it is no longer feasible to train the worker to qualify forthe position. See 20 C.F.R. § 656.17(i)(3). Thus, this regulation explains that an employer can avoid the bar on useof training or experience with the sponsoring employer in two ways. It does not provide a bar on the CO looking ateducational requirements. The regulations bar the use of any education or training obtained by the alien to qualifyfor the job at the employer’s expense unless similar training is offered to domestic worker applicants. See 20 C.F.R.§ 656.17(i)(4). Thus, this regulation permits an employer to use training or education paid for by the employer as ajob requirement if it provides the same opportunity to U.S. workers. Again, it does not provide a bar on the COlooking at educational requirements higher than those used as criteria in the hiring of the Alien when assessingwhether the employer has stated its actual minimum requirements. -3-
  4. 4. CO must consider them in making the relevant determination and give them the weight that theyrationally deserve. In Carlos Uy III, 1997-INA-304 (Mar. 3, 1999) (en banc), the Board heldthat a bare assertion without either supporting reasoning or evidence is generally insufficient tocarry an employers burden of proof. Here, the Employer’s statement is disjointed, and isdifficult to decipher. It appears to be a claim that the Alien was hired at a lower level ofresponsibility than the job opportunity that is the subject of the labor certification. But withoutelaboration and without supporting evidence, we find that the Employer has not established thatthe job for which the Alien was hired and the job for which labor certification is sought were notsubstantially comparable. Rather, the record suggests what the CO found – that the Alien washired by the Employer as a Civil Engineer when he only had a bachelor’s degree and was stillworking to complete his master’s degree.3 ORDER Based on the foregoing, we AFFIRM the CO’s DENIAL of certification. Entered at the direction of the panel by: Todd R. Smyth Secretary to the Board of Alien Labor Certification AppealsNOTICE OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Order will becomethe final decision of the Secretary unless within twenty days from the date of service a party petitions forreview by the full Board. Such review is not favored and ordinarily will not be granted except (1) whenfull Board consideration is necessary to secure or maintain uniformity of its decisions, or (2) when theproceeding 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 20001-8002Copies of the petition must also be served on other parties and should be accompanied by a writtenstatement setting forth the date and manner of service. The petition shall specify the basis for requestingfull Board review with supporting authority, if any, and shall not exceed five double-spaced pages.3 We note that this is the second appeal by this Employer sponsoring the same Alien for a Civil Engineer position.The job requirements stated in the earlier application were for a Bachelor’s degree in civil engineering with one yearof experience. See Thomas L. Brown Associates P.C., 2010-PER-134 (Sept. 14, 2010). That appeal focused on thefailure of the Employer to identify the website advertisement for the position that actually applied to the position atissue. -4-
  5. 5. Responses, if any, shall be filed within ten days of service of the petition, and shall not exceed fivedouble-spaced pages. Upon the granting of a petition the Board may order briefs. -5-

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