Matter of Enterprise Business Solutions – qualifying based on alternative requirements

BALCA vacated the denial, where the employee did not meet the minimum requirements of a bachelor’s degree plus 12 months experience, but did meet the alternative requirements of a bachelor’s degree and no experience.

Issue Date: 29 March 2011
BALCA No.: 2010-PER-00444
ETA No.: A-07312-94072

In the Matter of: ENTERPRISE BUSINESS SOLUTIONS, INC.,
Employer, on behalf of TALHA ABRAR JAFRI, Alien.

Certifying Officer: William Carlson
Atlanta Processing Center

Appearances: Rakesh Mehrotra, Esq.
Reston, VA
For the Employer

Before: Malamphy, Sarno, Bergstrom
Administrative Law Judges

DECISION AND ORDER VACATING DENIAL OF CERTIFICATION

This matter arises under Section 212 (a)(5)(A) of the Immigration and Nationality Act, 8 U.S.C. §1182(a)(5)(A), and the “PERM” regulations found at Title 20, Part 656 of the Code of Federal Regulations (“C.F.R.”).

BACKGROUND

On November 29, 2007, the Certifying Officer (“CO”) accepted for filing the Employer’s Application for Permanent Employment Certification for the position of “Programmer Analyst” (AF 11-22).1

Section H.4 and H.5 of the Employer’s application listed the minimum level of education required for the position as a bachelor’s degree in computer science or information systems or computer engineering and further stated that 12 months of experience in the job was required. (AF 13). The Employer also indicated in Section H.8 that there was an alternate combination of education and experience that was acceptable, which was a bachelor’s degree and no years of experience. The Employer also stated that a foreign educational equivalent would be acceptable and experience as a programmer or its equivalent would be acceptable. (AF 14). Under “specific skills or other requirements” in Section H.14, the Employer listed: “Alternate Education/Experience must include systems analysis & design, VB, C++, database design & development, MIS, operating systems etc. Employer will accept any other suitable combination of education, experience, or training.” (AF 13). In Section J of the form, the alien is listed as having completed a bachelor’s degree in information systems in 2005 from the University of Maryland, Baltimore County. (AF 15-16). Only one job is listed under the alien’s work experience, which is a job with the Employer. (AF 16).

The CO denied certification on January 10, 2008. (AF 8-10). The CO explained that the education, training, and experience possessed by the alien did not meet the requirements as described in Section H at the time of hire by the Employer. Specifically, all of the alien’s experience had been gained with the Employer in a substantially similar job. Thus, the CO concluded that the requirements stated on the ETA Form 9089 cannot be the Employer’s minimum requirements. (AF 9-10).

On January 28, 2008, the Employer filed a request for review. (AF 1-6). The Employer argued that its application lists a bachelor’s degree and zero years of experience as an acceptable alternate combination of education and experience. The alien met that requirement at the time he was hired by the Employer. (AF 2).

The CO forwarded the case to BALCA on March 17, 2010, and BALCA issued a Notice of Docketing on April 14, 2010. The Employer filed a Statement of Intent to Proceed on May 10, 2010. The Employer did not file an appellate brief. The CO did not file a Statement of Position.

DISCUSSION

The reason for denial given by the CO is that the alien’s qualifications as listed on the ETA Form 9089 demonstrate that the alien does not meet the minimum job requirements as described in section H of the form. The regulation at 20 C.F.R. § 656.17(i)(1) requires that the employer’s “job requirements, as described, must represent the employer’s actual minimum requirements for the job opportunity.” Since the Employer was willing to hire the alien who did not meet the stated requirement of 12 months experience at the time of his hire, that experience must not be the minimum requirement for the job, the CO concluded.

The Employer, however, correctly argues that its ETA Form 9089 does list a bachelor’s degree and zero years of experience as an alternate combination of education and experience to the bachelor’s degree and 12 months of experience that it first lists. Thus, since the alien is listed as having a bachelor’s degree, he appears to meet the Employer’s alternate accepted education and experience requirements regardless of the fact that his later experience was with the Employer.2

Therefore, we find that upholding the denial of certification is not warranted and we return this application to the CO to consider whether the Employer otherwise complied with the regulations and whether certification should be granted.

ORDER

IT IS ORDERED that the denial of labor certification in this matter is hereby VACATED and that this matter is returned to the CO for completion of processing.

For the panel:

RICHARD K. MALAMPHY
Administrative Law Judge

RKM/AMC/jcb
Newport News, Virginia

NOTICE OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Order will become the final decision of the Secretary unless within twenty days from the date of service a party petitions for review by the full Board. Such review is not favored and ordinarily will not be granted except (1) when full Board consideration is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance. Petitions must be filed with:

Chief Docket Clerk
Office of Administrative Law Judges
Board of Alien Labor Certification Appeals
800 K Street, NW Suite 400
Washington, DC 20001-8002

Copies of the petition must also be served on other parties and should be accompanied by a written statement setting forth the date and manner of service. The petition shall specify the basis for requesting full Board review with supporting authority, if any, and shall not exceed five double-spaced pages. Responses, if any, shall be filed within ten days of service of the petition, and shall not exceed five double-spaced pages. Upon the granting of a petition the Board may order briefs.

1 In this decision, AF is an abbreviation for Appeal File.

2 Since no Statement of Position was filed in this case, we can only guess that the CO inadvertently overlooked the alternate requirement, perhaps due to it being listed oddly on the ETA Form 9089.

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