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Volume X, Issue 7 December 2016

In This Issue

1. DOL Suspends PERM Denials Based on Vague Salary Language
2. BALCA Rejects DOL Denial Based on Vague Salary Language
3. 
United States Unemployment Rate November 2016
4. PERM Processing Times as of December 3, 2016 

1. DOL Suspends PERM Denials Based on Vague Salary Language

As USADNEWS reported last December, the Department of Labor (DOL) had begun denying PERM applications that displayed salary in the recruitment advertisements as "Competitive," "Depends on Experience (DOE)," "Negotiable," or "Other." At the time, the DOL determined this language to be so vague as to be misleading to job seekers, and therefore not an accurate representation of the salary offered. The American Immigration Lawyers Association (AILA) put out a Call for Examples from any members who received denials.

This month, on December 7th, the AILA DOL Liaison Committee met with the DOL's Office of Foreign Labor Certification (OFLC) for the quarterly stakeholder meeting. AILA reported in their DOL Practice Alert that the OFLC announced they are reviewing a recent decision by the Board of Alien Labor Certification Appeals (BALCA) in the Matter of Tek Services (November 2016) and in the meantime "have suspended denials of pending applications involving that issue. This includes applications awaiting analyst review and Requests for Reconsideration (RFR)."

AILA asks that members notify the DOL Liaison committee if they continue to see denials based on salary language.

2. BALCA Rejects DOL Denial Based on Vague Salary Language

Since December of last year, the Department of Labor (DOL) has been denying PERM applications where the salary in recruitment advertisements is listed as "Competitive," "Depends on Experience (DOE)," "Negotiable," or "Other." The DOL deemed this language to be so vague as to be misleading to job seekers. The basis for these denials was recently challenged before the Board of Alien Labor Certification Appeals (BALCA) in the Matter of Tek Services (November 2016).

In this case, the Certifying Officer (CO) denied the employer's application for the position of a Computer Systems Analyst on the basis that the employer's website advertisement and job order listed the wage offered as "competitive salary." The CO contended that the " 'competitive salary' language puts too much burden on the U.S. applicant to determine what the position will pay" and furthermore, that it may lead an applicant to suggest a higher figure than the employer is offering, which the employer could then use "as a reason for rejection."

The Board noted that the CO based the denial solely upon the regulation at
20 C.F.R. § 656.24(b)(2), which states:

                   (b) The Certifying Officer makes a determination either to grant or deny the labor certification on the basis of whether or not:
                   (1) The employer has met the requirements of this part.
                   (2) There is in the United States a worker who is able, willing, qualified, and available for and at the place of the job opportunity.
 

BALCA determined that the CO offered "no explanation as to precisely how this provision has been violated." The CO identified no requirement that the employer had not met, nor did the CO suggest that there were any qualified applicants who had been unlawfully rejected. BALCA stated, "We reject the CO's effort to utilize § 656.24(b)(2) as a catch-all denial ground encompassing any employer action that the CO deems problematic, despite citing no specific regulatory requirement that the employer has violated." The Board suggested that if the CO believes an employer has not acted in good faith, the reason for the denial should be addressed under 20 C.F.R. § 656.10(c)(8), which precludes employers from placing "unjustified hurdles in the path of U.S. applicants..." In the absence of a specific basis for the denial, BACLA remanded the case for certification.

As a result of this case, the DOL has suspended denials based on vague salary language while they review the decision.

 

3. United States Unemployment Rate November 2016

The unemployment rates around the country can greatly impact a company's decision to sponsor an application for labor certification. When unemployment rates are high, companies may elect not to proceed with the certification process. Rates can vary by state and industry. There are several states with jobless rates that are well below the national average. Employers in these states may be more available to sponsor employees. USADWEB is providing information on the current unemployment rates as a convenient tool to assist you as you prepare your cases. The unemployment rate decreased from 4.9% back to 4.6% in November.

4. PERM Processing Times as of December 3, 2016

PERM processing times are important to you and your clients. Therefore, each month USADWEB is pleased to be able to update you on the current processing times for reviews, audits, and appeals as reported on www.icert.doleta.gov:

 

PERM Processing Times
Processing Queue Priority Dates
Month Year
Analyst Reviews September 2016
Audits May 2016
Reconsideration Requests to the CO November 2016
Gov't Error Reconsiderations Current


The Office of Foreign Labor Certification (OFLC) is working diligently to reduce the Permanent Labor Certification Program's pending caseload. The dates on the above table reflect the month and year in which applications are now being adjudicated at the Atlanta National Processing Center. If you need assistance with an application that was filed more than 3 months prior to the month posted, you can contact the OFLC Helpdesk at plc.atlanta@dol.gov.

About USADWEB
USADWEB, LLC.
 is an innovative advertising agency that understands the immigration needs of companies placing recruitment advertising for labor certification cases in PERM, supervised recruitment, and H2B processes. For over a decade, we have helped law offices and companies all over the United States meet the Department of Labor's recruiting requirements. Take advantage of our expertise and relationships with publications throughout the country. Our knowledgeable staff has experience placing all forms of recruitment: newspapers, periodicals, journals, internet job search postings, campus recruitment, radio ads, and more. Contact a representative for more information on placing your ads today!

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USADVolume X, Issue 7 December 2016

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The USADNEWS Blast is the eNewsletter from USADWEB, LLC, providing updates on immigration ad placement services. This bulletin is not sent unsolicited. The information provided is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of USADWEB's services.
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