When Hiring a Foreign Employee May Really Be the Only Feasible Option

08 September 2014 Labor & Employment Law Perspectives Blog

The Board of Alien Labor Certification Appeals of the U.S. Department of Labor (“DOL”), otherwise known as the BALCA, recently issued an employer-friendly decision that contemplates how an employer can demonstrate it is not feasible to train a U.S. worker for a permanent employment position processed through the DOL’s Program Electronic Review Management System, commonly referred to as “PERM,” to obtain a DOL-certified labor certification. A labor certification is a process whereby an employer tests the U.S. labor market to determine whether domestic workers are able, willing, qualified and available to perform the duties a specific occupation in lieu of the necessity of permanently employing a foreign national in the occupation. Completion of the process is also a common prerequisite to obtaining U.S. permanent residence for a foreign national worker.

Per the PERM regulations, an employee may not qualify for a position sponsored through labor certification by using his or her experience gained with the sponsoring employer in a role that is substantially comparable in that it requires the performance of the same job duties more than 50% of the time. As a result, experience with a sponsoring employer can only be used to qualify for a labor certification if the job duties in the previous position are substantially different and requires the performance of the same job functions less than 50% of the time.

In the recent helpful decision, the employer filed a PERM labor certification case with the DOL for the position of “Software Engineer.” The advertised job opening stated that the position required two years of experience as a software engineer, software developer, or a related occupation. The employer listed the alien’s work experience on the labor certification application (Form 9089), only listing his position with the sponsoring employer. The Certifying Officer (“CO”) issued an audit notification that stated the alien’s experience was gained solely through the sponsoring employer in an identical position. In response, the employer argued that it was not feasible to train a new worker for this position and provided a detailed letter from its V.P. of Engineering. The CO nevertheless denied the labor certification.

In considering the case, BALCA reviewed prior case law and found that employers must meet a heavy burden to prove that it is not feasible to train a new worker. It stated that “documentation must show more than just inefficiency…and that [BALCA is] generally skeptical about claims of infeasibility to train.” However, in reviewing the letter from the employer’s V.P. of Engineering, it found that the employer had provided a number of specific examples of the position’s challenges, had explained the critical timelines involved in the work that the alien was performing, and explored why even qualified candidates would not be able to receive the necessary knowledge to perform effectively in this role. BALCA found the V.P. of Engineering’s statements to be credible and clearly “written by a person with firsthand knowledge about whether training for the position…was feasible” in light of the employer’s products and business needs. Consequently, the denial was overturned by BALCA. While this case provides support for employers that wish to demonstrate that it is infeasible to train a U.S. worker, the standard in these cases remains high and should only be considered after careful review of the position and the employer’s business needs.

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