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IMMIGRATION JUNE 16, 2023 | The Indian Eye 41

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remanded the PERM application for cer- ance to the recent guidance provided by tions, which although it pertained to an the logic from its H.10-B denials to deny
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tification, reasoning that: “…the Employ- OFLC with respect to H.10-B. These ETA H.10-B denial, seems to support the more ETA 9089s in the new system because the
er persuasively argued why, in this matter, 9141s were prepared and submitted in general idea that an employer’s failure to occupation was not mentioned in response
failing to include the job title of an accept- 2022, even before the H.10-B denials, and list specific job titles is not sufficient justi- to box F.b.4.b. of the 9141. If it does, there
able alternative occupation was immateri- do not contain the preferred language rec- fication for denial of a PERM application. will be ample basis to challenge the denial
al to the CO’s review of the substance of ommended by OFLC in November 2022. Employers should also be able to argue and forever exorcize H.10-B’s ghost.
the Form 9089. The Employer precisely They will now link to the new ETA 9089. that 20 CFR § 656.17(a), the provision The DOL sees the new 9089 as the
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detailed the skills needed to satisfy the re- The employer will not have an opportunity used to justify PERM denials based on solution to all the ambiguities in the old
quirement that “experience in an alternate in the new ETA 9089 to include any reha- box H.10-B, pertains only to an incom- ETA 9089. However, we all know that the
occupation” was acceptable. […] Section bilitative language as it did in response to plete Form ETA 9089. If the DOL issues new ETA 9089 is not the panacea to all the
H.10-B conveyed significantly more infor- H.10-B closely analogous to DOL’s sug- a denial based on an incomplete ETA problems in the old form and continues
mation than simply listing the job title of gested “any occupation in which the re- 9141, there should be a strong legal basis to create additional ambiguities. We will
an acceptable alternate occupation.” Id. quired experience was gained” language. to challenge the denial under 20 CFR § need to remain vigilant and point these
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While box H.10-B has disappeared Will the DOL deny the ETA 9089 because 656.17(a) in addition to the reasoning pro- issues out as they play out including chal-
from the new ETA 9089, box F.b.4.b. of the preferred language was not included in vided in Matter of Charter Communica- lenging potential denials to BALCA and
the new 9141 with respect to minimum the previously approved ETA 9141? tions. Another point in favor of challeng- even in federal court.
job requirements still asks employers to Although only time will tell whether ing any denial is that the ETA 9141 with [This blog is for informational purposes
“indicate the occupation required” if em- section H.10-B will haunt us despite its respect to alternative job requirements at
ployment experience is required for the disappearance in the new form, employ- box F.c.4.a asks for the number of months only and should not be considered as a
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position. See AILA Doc No. 23050101. ers who have not listed specific job titles of alternate experience. It does not ask for substitute for legal advice]
On the previous version of the ETA 9141, in box F.b.4.b. of the 9141 should be able the job title in the alternate occupation *Kaitlyn Box is a Senior Associate at
which included the same version of this to take reassurance from BALCA’s deci- even if box F.b.4.b asks for the occupation Cyrus D. Mehta & Partners PLLC.
question as the new 9141, employers often sion in Matter of Charter Communica- required. It is hoped that DOL will not use
responded by indicating “see addendum” _________________________________________________________________________________________________________
and listing the full requirements of the po- Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta & Partners
sition rather than just the occupation, such PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Committee; former
as “2 years of experience in engineering chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary Committee, Appellate
management emphasizing cloud based Division, First Department, New York; member of the ABA Commission on Immigration; board member of Volunteers for Legal Ser-
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product development”, in the addendum. vices and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the Board of Trustees of the American
Because the new ETA 9141 will link to the Immigration Council and former chair of the Committee on Immigration and Nationality Law of the New York City Bar Association.
He is a frequent speaker and writer on various immigration-related issues, including on ethics, and is also an adjunct professor of law at
ETA 9089 and certain fields will be popu- Brooklyn Law School, where he teaches a course entitled Immigration and Work. Mr. Mehta received the AILA 2018 Edith Lowenstein
lated automatically, uncertainty for practi- Memorial Award for advancing the practice of immigration law and the AILA 2011 Michael Maggio Memorial Award for his outstand-
tioners remains, even though box H.10-B ing efforts in providing pro bono representation in the immigration field. He has also received two AILA Presidential Commendations
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itself has disappeared, as the response to in 2010 and 2016. Mr. Mehta is ranked among the most highly regarded lawyers in North America by Who’s Who Legal – Corporate
box F.b.4.b may not have been in compli- Immigration Law 2019 and is also ranked in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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