BIB Day by day presents bimonthly PERM apply ideas from Ron Wada, member of the Editorial Board for Bender’s Immigration Bulletin and writer of the ten+ yr collection of BALCA assessment articles, “Shaping the Way forward for PERM.” Questions or feedback could also be despatched to Ron at ron.wada@tandslaw.com.
For PERM purposes involving a extremely technical job alternative it’s turning into more and more commonplace for the applicant pool to incorporate a big variety of non-U.S. staff, e.g., candidates who’re in america in a brief nonimmigrant standing reminiscent of H-1B or F-1. The PERM rules embody particular requirements for disqualifying US employee candidates. Nonetheless, non-U.S. employee candidates aren’t lined by such necessities. As acknowledged by BALCA in Matter of SAP Labs LLP, the PERM rules governing the content material of the recruitment report at 20 CFR 656.17(g) don’t specify any necessities for documenting non-U.S. employee candidates or how an employer made the willpower that they have been non-U.S. candidates.
In response to an audit request in SAP Labs LLP the employer offered the applicant resumes along with its willpower that they weren’t US staff however didn’t clarify the premise for that willpower. The Certifying Officer denied certification questioning how the employer was in a position to decide that the disqualified candidates weren’t US staff. On reconsideration the employer offered an affidavit describing its apply of merely asking every applicant to “specify whether or not they’re legally approved to work in america and whether or not they’ll require sponsorship for a U.S. employment visa.” The Certifying Officer affirmed the denial however BALCA concluded that “the rules impose no explicit duties on employers with regard to documenting the willpower of the authorized standing of candidates. Furthermore, this difficulty will not be addressed in any FAQ or within the audit letter. . . . The Employer had, nevertheless, described the way it decided the candidates’ authorized standing — it requested them.”
For additional info, see: Ron Wada, “Shaping the Way forward for PERM – BALCA Highlights 1Q 2019,” 24 Bender’s Immigr. Bull. 545 (Might 15, 2019); Matter of SAP Labs LLP, 2019 BALCA LEXIS 83 (BALCA Feb. 26, 2019).
