对于PERM能否成功，Job description 及 Job requirements是最 为重 要的。有 些人
把这两个混在一 齐，因此无法适当的拒绝U.S. Worker，而且DOL说的很清楚，广告的
内容必须与9089一 致，往 往公司不了解这 些当中的重要性，广告与实际的9089不同
，因此PERM被否决。再来就是拒 绝U.S.Worker的理 由也是个重 点。我 们目前为很多
公司及律师同行处理很多的PERM Audit，发现到绝大多数的问题都是广告的内容与
Recruitment Result Statement。本文供大家作一 些参考。
In a recent decision Board of Alien Labor Certification Appeals (BALCA)
denied a labor certification because job responsibilities mentioned by
employer were too vague and generic.
Facts of the Case
A telecommunications company filed a labor certification application on
behalf of an alien for the position of “Information Technology Director”.
Both Form ETA-750A and the advertisement only carried “Bachelor’s Degree
in Electronic Engineering” and no experience or other special requirements
for the position. When scrutinizing the applications the CO found some
discrepancies and issued a Notice of Findings (NOF) proposing to deny
certification on two grounds:
(i) Employer whimsically rejected three U. S. applicants for grounds
not stated in the ETA 750A; and
(ii) The alien was hired without possessing the specialized requirements.
The employer filed a rebuttal, providing information on the alien’s
qualifications for the job, but did not address the rejection of the three U
. S. applicants. The CO accepted the rebuttal documentation provided on the
latter ground but no evidence was adduced for the former ground of rejection
. Based on this fact the CO issued a Final Determination denying the
certification.
The employer appealed before BALCA arguing the following:
* That the job required some prior specialized knowledge;
* That the CO lacked the understanding of the terminology used in the
industry;
* The CO was not in a position to judge what constitutes a lawful job
related reason for rejection of U.S. applicants;
* That the employer should be allowed to ask question related to job
even if they are not mentioned in ETA 750A or advertised;
* Further, the employer also objected to the CO’s observation that the
knowledge requirements are too vague; and
* Finally, the employer argued it is totally wrong on part of DOL that
those interviewees for the post of Director not to be asked about their
knowledge of the field.
Discussion
PERM regulations provide that the employer’s rebuttal evidence must rebut
all of the findings in the NOF and any finding not rebutted shall be deemed
admitted. The Board in the instant case found that the CO properly denied
certification because the employer failed to timely rebut the NOF finding.
Further, the employer failed to explain it in its request for BALCA review
or its appellate brief.
PERM regulations provide that if minimally qualified U.S workers have
applied for the job opportunity, an employer must document that they were
rejected solely for lawful job-related reasons. A U.S. applicant may only
be rejected for job-related reasons, such as:
* The applicant does not have the minimum education, training, and
experience required by the employer;
* Refusal to fill out a questionnaire examining substantive knowledge of
the profession or gave answers to such a questionnaire demonstrating lack
of required knowledge;
* Inability to satisfactorily perform the job e.g., documented bad work
references, poor health, and lack of proficiency in the English language;
* Refusal to work overtime as necessary;
* Failed to respond to the employer’s communication or appear for a
scheduled interview;
* Fails to provide requested verification of employment history and
educational credentials;
* Demands that employer agree to pay finder’s fee; and
* Refuses the position upon the employer’s offer of it under the terms
in ETA-750.
The employer must state all the requirements for the position on the Form
ETA-9089. If an applicant meets the requirement as stated by employer, he or
she is deemed qualified for the job.
In the instant case, the only job requirement listed on the ETA-9089 and the
advertisement was a Bachelor’s Degree in Electrical Engineering. The job
duties were of a general nature – at their core, managing and coordinating
information technology in the employer’s telecommunications business.
Rejecting three U.S. applicants because they do not possess specific
telecommunications protocols and applications was improper because these
were unlisted job requirements. They should have been expressly stated in
the job description on the ETA-9089. This could have given CO an opportunity
to review and gauge whether they were job requirements for which business
necessity had to be established. BALCA felt that the CO properly denied
certification due to the employer’s failure to establish that the knowledge
requirements used as basis for rejecting the otherwise qualified U.S.
applicants were fundamental to the nature of the position. If they were
inherent job requirements employer should have stated them in Form-9089 and
the advertisements.
Conclusion
By signing Form ETA-9089, the employer attests that “the job opportunity
has been and is clearly open to any qualified U.S. applicant.” Under PERM
job description and requirements will continue to be important. Generally,
employers tend to make the mistake of confusing job duties with job
requirements. Duties are what has to be done and requirements are what the
worker needs to know, have done, or be able to do. If appropriate care is
not taken while drafting the word or marking the right boxes in Part H of
Form ETA 9089, the resulting confusion can be terrible and can hurt the
alien’s chances of securing a job. PERM regulations don’t provide an
exhaustive list of valid reasons for rejecting U.S. applicants, but there is
an assumption that an employer cannot reject them if they met all the
minimum requirements. Therefore, it is important for employers to take
proper care while articulating and describing the job duties and
requirements.
本文由范毅禹律师事务所提供
本律师事务所精办各类劳工应聘及专业移民申请 (包括H-1，L-1，EB-1，EB-2，NIW，
劳工卡，绿卡等申请)。所有申请由多位美籍律师及拥有15年经验的范毅禹律师亲自处
理，我所并特设中英移民网站。内有最新移民新闻资讯及由律师主持的移民问答集，欢
迎读者流览查询。
www.fan-law.com (Chinese)
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