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BALCA Issues Decision Discussing Infeasibility to Train

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On May 22, 2014, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision in Matter ofKentrox, Inc. that considered how an employer could demonstrate that it is infeasible to train a U.S. worker for a position sponsored through labor certification. The employer filed a PERM case for the position of “Software Engineer” and stated that this position required 24 months of experience as a software engineer, software developer, or a related occupation. However, when the employer listed the alien’s work experience, it only listed his position with the sponsoring employer. The Certifying Officer (“CO”) stated in an audit notification that the alien’s experience was gained from working for the employer in a position that was identical to the one sponsored. Per the PERM regulations, an employee may not qualify for a position sponsored through labor certification by using his experience gained with the sponsoring employer in an identical role. 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 Vice President of Engineering. The CO 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 infeasible to train. 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 Vice President 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 that his statements were “thorough and specific, and [were] obviously written by a person with firsthand knowledge about whether training for the position . . . was feasible given the employer’s business situation.” Consequently, the denial was overturned. While this case does provide support for employers that wish to demonstrate that it is infeasible to train a U.S. worker, the standard in these cases is high and should only be considered after careful review of the relevant factors involved in the position. This post originally appeared on HLG’s Views blog by Cadence Moore. http://www.hammondlawgroup.com/blog/.

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