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:

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.