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IMMIGRATION JUNE 23, 2023 | The Indian Eye 38

Although Section H.10-B Has

Disappeared in the New ETA 9089,

Will Its Ghost Continue to Haunt Us?

CYRUS D. MEHTA & analogous question in ETA 9141 to section H.14., which lists the took the position that the entire H.14 – Special Skills.” The in-
that now links to the new ETA requirements of the offered po- PERM application is rendered formation provided in H.14 does
KAITLYN BOX*
9089, will the DOL still deny la- sition, rather than attempting to incomplete if this question is not not identify what alternate occu-
he new ETA 9089 form has bor certification? list specific job titles. This is be- completed properly. The DOL pations are acceptable to meet
gone into effect and DOL This blog is part of a series, see cause foreign national workers cited to 20 CFR § 656.17(a), the experience requirements for
Tstopped using the old ver- here and here, that address some often had a number of job titles which states that incomplete ap- the job that is the subject of the
sion of the form on the evening of the numerous questions and in their prior experience, which plications will be denied, as the PERM application. Instead, the
of May 31, 2023. The new form issues raised by these new forms. may not have reflected the job authority for the denials. application only lists a series of
does not have Box H.10-B. In As background, Box H.10-B offered in the labor certification. The DOL responded to re- the special skills requirements
our previous blog, we discussed of the previous version of the For instance, with respect to the ports of increasing PERM deni- and/or other alternative combi-
the rise in PERM labor certifica- ETA 9089 asked employers to position of Engineering Manag- als concerning question H.10-B, nations of education and experi-
tion denials related to question “identity the job title of the ac- er, the foreign worker may have and posted a notice that read as ence that the employer is willing
H.10-B between October 2022 ceptable alternate occupation” had similar experience in prior follows as its website on April 14, to accept. As a result of employ-
and March 2023. Does that mean if experience in an alternate oc- engineering management po- 2023: ers providing insufficient infor-
that the problem has gone away? cupation is acceptable. The DOL sitions, but may have held titles OFLC has stopped issuing mation in either H.10-B. or H.14,
Not entirely, since the new ETA had promulgated little guidance that had little direct connection denials for this issue for pending OFLC has recently denied appli-
9089 links to the Form ETA 9141 on this question, so immigration to the duties, such as Associate applications and will not deny for cations for being incomplete.
– the application for a prevailing lawyers completed this question or Specialist. Hence, it was more this reason for any application OFLC evaluated these de-
wage determination – which asks in a variety of ways, including appropriate to describe the expe- submitted on or before May 30, nials and determined that while
an analogous question to H.10-B describing the experience such rience gained rather than the ti- 2023, by which point OFLC ex- they are appropriate, it has not
regarding the occupation re- as “2 years of experience in en- tles in the prior positions, as this pects to be accepting the updat- been consistent about when it
quired if employment experience gineering management empha- approach would define the em- ed version of Form ETA-9089 in denies an application for this rea-
is required. If the employer did sizing cloud-based product de- ployer’s job requirements with the Foreign Labor Application son, which could confuse filers.
not respond appropriately to the velopment” and then referring greater clarity. Historically, the Gateway system. Further, OFLC On April 24, 2023, the
DOL had accepted PERM will overturn denials based solely Board of Alien Labor Certifica-
applications that respond- on this issue. OFLC will identify tion Appeals (BALCA) issued
ed to question H.10-B in applications that were denied an important decision address-
this way. Since the spate of for this issue and for which re- ing H.10-B denials. In Matter of
denials from October 2022, consideration has not yet been Charter Communications, Inc.,
the Office of Foreign Labor requested; employers whose 2020-PER-00171 (Apr. 24, 2023),
Certification (OFLC) com- applications have been denied BALCA held that an employer’s
municated the following solely for this reason and have failure to list specific occupation
guidance to the American not yet requested consideration titles in box H.10.B. alone was
Immigration Lawyers Asso- are encouraged not to submit not sufficient grounds for denial
ciation (AILA) in Novem- a request for reconsideration. of a PERM application, also not-
ber 2022 in response denials Where reconsideration has been ing that the OFLC has dealt with
on this issue: “Employers requested, OFLC will prioritize this issue in an inconsistent man-
may list a specific job title, processing for any pending re- ner in its adjudication of PERM
a number of related job ti- consideration requests based on applications. The employer in
tles, or even language such denials where this is the only de- this case had inserted the fol-
as ‘any occupation in which nial issue. lowing in box H.10-B: “Please
the required experience Although this notice has see [Section] H-14.” Id. The
was gained.’ The answer now been removed, it is re- employer’s response to section
does not have to be an exact produced as AILA Doc. No. H.14 read as follows: “Bachelor’s
job title, but employers still 23041700. In our firm’s experi- degree, or foreign equivalent, in
have to answer the ques- ence, PERMs denied solely on Engineering, Computer Science,
tion. If employers reference a question H.10-B issue were or [a] related field. Must have 7
H.14 to answer the ques- certified rather quickly after a years of experience working with
m of tion in H.10-B, employers Requestion for Reconsideration DSG/DAVIC set top boxes; and
CYRUS D. MEHTA & PARTNERS PLLC must be sure to answer the (“RFR”) was filed. Interestingly, managing, maintaining, and con-
H.10-B question. Just pro- though, while OFLC acknowl- figuring Linux operating systems.
viding a list of requirements edges that it has not adjudicat- Must have 5 years of experience

is not acceptable.” See ed H.10-B issues in a consistent supporting software applications
AILA Doc. 22092601. manner, it states that some of the for back office servers.” Id. The

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­ The denials concern- denials were justified, stating: Certifying Officer denied certifi-
€
‚   ing question H.10-B cen- …OFLC concluded that cation, and affirmed its denial af-
tered on the idea that ques- some employers have not consis- ter the employer filed a Request
tion H.10-B is not properly tently answered the question ac- for Reconsideration (“RFR”),
completed if the employer
curately by providing acceptable
asserting that section H.10-B re-
fails to list specific job ti- alternate job titles; rather, they quires an occupation or job title.
2 6th Floor tles. The DOL therefore include statements such as “see BALCA vacated the denial and

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