BALCA Decision Serves as Cautionary Tale on Recruitment Requirement

On December 29, 2016, the Board of Alien Labor Certification Appeals (BALCA) issued its decision in the Matter of Unisoft International, Inc., d/b/a SMA (“the Employer”), sending a signal to employers concerning their burden of responsibility during a recruitment process and the good-faith efforts that would be expected in order for them to demonstrate compliance with those requirements. In its decision affirming denial of certification, BALCA clearly placed “the burden of follow-up” on the employer, rather than the applicant in situations where “subsidiary requirements” for a job are not present in a resume, and further stated that the employer should have conducted a closer analysis as to whether on-the-job training options could have allowed U.S. applicants to meet the required qualifications for certain skills.

Advertising Requirements in PERM—A Survey of BALCA’s Application of 20 CFR § 656.17(f)(7)

The U.S. Department of Labor’s (DOL) permanent labor certification (PERM) program requires employers to conduct specific recruiting activities to test the labor market before filing an application. The regulation at 20 CFR § 656.17(f) sets forth the advertising requirements, which also apply to the Notice of Filing (NOF). This includes the requirement at section 656.17(f)(7) that the ads “[n]ot contain wages or terms and conditions of employment that are less favorable than those offered to the alien.” The DOL’s Board of Alien Labor Certification Appeals (BALCA) has come to rely on this section to uphold denials of certifications in a variety of factual situations where the agency speculates that more detail may have generated more or less interest in the open positions.

H-1B Cap Count: “Master’s Cap” Reached and New H-1B Visa Availability Almost Exhausted for Fiscal Year 2012

U.S. Citizenship and Immigration Services (USCIS) has updated the count of H-1B visa petitions received and counted towards the H-1B cap for fiscal year 2012. The H-1B cap is only relevant for new H-1B petitions where the individual does not currently possess an H-1B visa. As of October 21, 2011, USCIS has received approximately 46,200

DOL Processing Times for Prevailing Wage Requests for PERM – Delays Continue

The U.S. Department of Labor (DOL) recently announced that it would temporarily suspend its processing of prevailing wage requests for permanent labor certifications (PERMs) in order to comply with a court order, issued by the U.S. District Court for the Eastern District of Pennsylvania, implementing the court’s August 30, 2010 decision in CATA v. Solis.