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Chinese Immig. Daily
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Question from a reader:
I read your blog post regarding the December 6, 2016 DOL stakeholder meeting.
In this meeting, the Office of Foreign Labor Certification agreed to stop issuing denials based on the outcome of a BALCA decision (SmartZip Analytics, 2016-PER-00695).
My case is also currently with BALCA for the same reason as
Smart-Zip Analytics, i.e., unquantified skills in section H.14
Now that DOL has recognized that cases with unquantified skills should be reconsidered based on the lack of guidance provided by the agency, is there something I can do at my end to
accelerate the processing of my case with BALCA?
Whenever a new policy is introduced, the agency cannot correct itself until it passes through a time-consuming learning curve. During that time, some applications will be adjudicated, or readjudicated, according to the new rule, but many will not.
Your attorney or representative should assume the responsibility to make sure that your application is properly processed by DOL. In some cases an audit or denial may be issued.
In case of an audit, an appropriate response may be provided, and the DOL should approve the application.
In case of a denial, a “Request for Reconsideration” may be provided. The DOL uses the reconsideration process to correct cases that were denied but should not have been denied based on newly announced policies.
Since your application was already sent to BALCA, your attorney or representative may file a request with BALCA requesting the application be returned to the Atlanta DOL processing center per the new change in the policy. Since this normally occurs with the consent of Atlanta, the request could be addressed to both the Certifying Officer in Atlanta and the Board of Alien Labor Certification Appeals in Washington.
With kind regards,
The US Department of Labor (DOL) has long held the belief thatemployers should not recruit for jobs requiring special skills or licenses if USworkers are available who could be easily trained. The DOL perspective on a trainingrequirement is not absolute, as long as employers can show that the on-the-jobtraining is not possible in a reasonable period of time.
The DOL accepts plausibleexplanations from employers who can demonstrate that it may take a great dealof time or expense to train someone who does not possess a special skill.
Employers often determine theability to perform the skill based on information listed in resumes of jobapplicants and reject workers because they did not appear to possess thoseskills. However, the rule is that US workers who apply jobs should not berejected on the basis of their resume alone, because they might qualify basedon some other combination of experience, education, or training.
To successfully defend specialskill requirements, employers can show businessnecessity, i.e., by demonstrating that the job requirements are essential toperform the job duties.
As a matter oflaw, the employer’s assessment of its own requirements and of candidates’abilities to perform job duties with special skills takes priority over theopinion of the Department of Labor, since employers are the ones most qualifiedto make those decisions.
In recent months,DOL has denied cases where job skills are not quantified, in part because theycannot be properly measured.
The matter hasbeen raised at meetings between the US Department of Labor, attorneys andemployers, with the result that guidance will soon be published regarding theproper way to list special skills in job offers.
A related issue isthatoften, when no quantification ofskill requirements is provided, the government simply concludes that jobapplicants (including the foreign worker beneficiary of the PERM application)need to prove that they worked with those skills throughout the entire periodof minimum experience required in the job offer.
Sometimes workersmay acquire skills in intangible way, such as through special hobbies,interests or life experiences. The important issue in these types of skillacquisition is not the quantification of how long or by what means a person acquiredthe skill, but simply whether the person possesses the necessary skill and howthe employer will determine that fact.
Employers shouldbe aware that it is difficult to assert that job applicants are unqualified toperform a specific job if details of skill requirements are not clearly stated inthe job offer and if job applicants are not interviewed to determine if theyare qualified -- even when their resumes do not clearly indicate that they possessthe necessary, special skills.