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IMMIGRATION APRIL 21, 2023 | The Indian Eye 38
Dealing With Section H.10-B
Labor Certification Denials
BY CYRUS D. MEHTA AND in a variety of ways. While consistent with guidance that was gained.’ The answer BALCA held that failure to
some employers may pre- it has previously issued by the does not have to be an ex- include the Kellogg language
KAITLYN BOX*
fer to list related job titles in DOL’s Office of Foreign La- act job title, but employers on an ETA 9089 should not
H.10-B, a candidate’s qual- bor Certification (OFLC), so still have to answer the ques- be a basis for denial, not-
n recent weeks, reports ifying experience may have the wave of recent denials is tion. If employers reference ing that there is no suitable
of PERM labor certifica-
Ition denials concerning been gained in positions with puzzling. H.14 to answer the ques- place on the form to include
The uptick in PERM
various nondescriptive job
tion in H.10-B, employers the language. Nothing in
the manner in which ques- titles. Thus, employers may denials concerning question must be sure to answer the the holdings of Kellogg or
tion H.10-B was completed choose to respond by instead H.10-B seems to have be- H.10-B question. Just pro- its progeny, however, seems
on Form ETA 9089 have describing the experience gun between October and viding a list of requirements to be instructive regarding
abounded from many im- such as “2 years of experience December 2022, when the is not acceptable.” See AILA whether specific job titles
migration lawyers and their in engineering management” percentage of PERM appli- Doc. 22092601. Interesting- must be listed for alternate
clients. This question asks and then referring to section cations denied by the DOL ly, AILA received reports occupations.
employers to “identity the H.14., which lists the require- nearly doubled when com- of continued denials on the The DOL is aware of in-
job title of the acceptable al- ments of the offered position, pared to data from the first question H.10-B issue well consistencies in the adjudica-
ternate occupation” if an al- rather than attempting to list quarter of FY 2022. The into March 2023, even when tion of PERM applications,
ternate exists. The DOL has specific job titles. The DOL denials seem to focus on the the PERM application con- and has communicated to
promulgated little guidance has historically accepted idea that question H.10-B tained language similar or AILA that it will review ap-
on this question, so immi- PERM applications that re- is not properly completed identical to that prescribed by plications where an employer
gration lawyers have been spond to question H.10-B in unless specific job titles are OFLC in November 2022. Id. has filed a Request for Re-
accustomed to completed it
this way, and this approach is listed. Because DOL takes Historically, BALCA’s consideration (“RFR”) for a
the position that this decision in Matter of Francis denial based on the manner
field in the form was not Kellogg, 94-INA-465 (Feb. in which question H.10-B
properly completed if 2, 1998), has been the pre- was completed. According
an employer uses alter- vailing guidance concerning the AILA, “where the rea-
nate language, it asserts alternative requirements. In son for denial is Question
that the entire PERM Kellogg, BALCA held that H.10-B only, OFLC will pull
application is ren- employers should indicate the case out of the usual or-
dered incomplete. The that it will accept “any suit- der to review and certify the
DOL cites to 20 CFR § able combination of educa- application where appro-
656.17(a), which states tion, training or experience” priate. OFLC has indicated
that incomplete appli- if the primary and alternate that there are several hun-
cations will be denied, requirements for the position dreds of these cases. While
as the authority for the are not “substantially equiva- OFLC will start reviewing
denials. lent”. 20 CFR §656.17(h)(4) these cases immediately, it
On November 17, (ii) broadened the holding of may take several weeks to
2022, OFLC communi- Kellogg to apply whenever process them all.” See AILA
cated the following guid- there are alternate require- Doc. 22092601. It thus seems
ance to the American ments, providing as follows: that immigration lawyers and
Immigration Lawyers “If the alien beneficiary their clients who are dealing
Association (AILA) in already is employed by the with an H.10-B denial may
response to reports of employer and the alien does be able to get resolution sim-
numerous denials on not meet the primary job ply by filing an RFR.
m of this issue: “OFLC un- requirements and only po- The recent denials still
CYRUS D. MEHTA & PARTNERS PLLC derstands that there tentially qualifies for the job pose a number of complica-
may be a variety of rel- by virtue of the employer’s tions, though. If the PERM
evant specific job titles alternative requirements, was filed in the sixth year
in which required expe- certification will be denied in H-1B status, because
rience may be gained. unless the application states the DOL is likely to take at
Employers may list a that any suitable combina- least several weeks to pro-
specific job title, a num- tion of education, training, cess RFRs, some employees
ber of related job titles, or experience is acceptable.” may reach the end of their
or even language such as However, in Matter of sixth year in H-1B status and
‘any occupation in which Federal Insurance Co., 2008- be forced to leave the U.S.
2 6th Floor
the required experience PER-00037 (Feb. 20, 2009), during this extended waiting
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