PERM DOL Update on H.14 unquantified experience denials – 12/23/16

From the DOL and OFLC PERM and H-1B December 6, 2016 Stakeholder meeting minutes

Question from AILA:

BALCA has now issued a decision – Smartzip Analytics, 2016-PER-00695 (November 9, 2016) – on the H.14 unquantified experience denials that have been the subject of several recent Stakeholder meetings.

The decision is based upon the fact that neither the form instructions nor any FAQ or other guidance tells employers how to list skill requirements in H.14 where the employer does not require a specific amount of experience in those skills.

As this is a 2016 case, it is evident that BALCA went to the additional step of deciding the case out of FIFO order to address this issue and provide legal guidance.

We believe that this indicates that BALCA wants to settle the broader legal issue raised, and very likely indicates that any future decisions on this issue will be decided the same way.

Continued denials on this issue are likely to be nothing more than a drain on resources at OFLC, at BALCA, and from employers as those employers seek to have the denials reversed at BALCA.

n light of this decision, we have the following questions:

a. Will OFLC stop issuing denials on this issue and provide guidance to its stakeholders on how to address this issue for cases filed on a going-forward basis, just as it did with the Section K FAQ?

b. Will OFLC change its approach to adjudication of pending RFRs and reverse the underlying denials in those cases consistent with Smartzip Analytics?

c. Will OFLC allow stakeholders to provide a list of cases that were denied on this basis so that OFLC can coordinate with BALCA on identifying these cases and addressing them in a uniform and efficient manner?

d. We are continuing to receive reports of denials even on cases following the parameters of our most recent stakeholder meeting discussions where employers are making their requirements very clear.

Will OFLC suspend issuing these denials while it works to implement a final policy on this issue?

OFLC Response:

OFLC has reviewed Matter of SmartZip Analytics and is in the processing of developing an FAQ to address the issues raised.

OFLC has suspended denials of cases based upon unquantified experience in Section H.14 while it finalizes this policy.

This includes both analyst adjudications and requests for reconsideration.

OFLC is unable to comment at this time as to how it will address cases pending at BALCA or the content of the FAQ but stated that it would consider sharing a draft of the FAQ with the stakeholder community to obtain input.