In Matter of East Tennessee State University [BALCA, en banc, 2010-PER-00038 (April 18, 2011)], the Board of Alien Labor Certification Appeals (BALCA) confirmed the following in cases involving a college or university teaching position filed under the basic recruitment process at 20 CFR §656.17 rather than the "special handling" process at 20 CFR §656.18:

  • The statutory and regulatory standard that allows selecting the best qualified candidate applies in cases involving a college or university teaching position, even when the employer uses the basic recruitment process at 20 CFR §656.17 rather than the "special handling" process under 20 CFR §656.18.
  • Under the basic recruitment process at 20 CFR §656.17, preferences used in advertisements will be considered "implicit requirements." If preferences appear in advertisements, filing notices, or other recruitment steps, they must also be listed as job requirements in Section H of the ETA Form 9089. If an employer places requirements or preferences in its advertisements that are not listed on the ETA Form 9089 as requirements, the labor certification application will be denied as being in violation of 20 C.F.R. § 656.17(f)(6).
  • "While an employer recruiting under the basic process for a college or university professor can certainly use its preferences in evaluating the relative qualifications of all applicants, in order to ensure that the applicant pool is not improperly restricted, an employer may only include its requirements in its advertisements, not its preferences."

In the case, a PERM labor certification application, the employer had selected the alien as more qualified than any of the U.S. workers who applied for the position. The Certifying Officer (CO) denied the application in part because the employer used the basic labor certification process at 20 C.F.R. § 656.17, rather than the special recruitment process of 20 C.F.R. § 656.18, but still used the "more qualified" standard to reject U.S. worker applicants. The CO also asserted other grounds for denial, including a finding that the "Employer‘s notice of filing, job order, newspaper advertisements, and additional professional recruitment steps contained job requirements which exceeded the job requirements listed on the application in violation of 20 C.F.R. § 656.17(f)(6)."

In the original appeal, BALCA upheld the decision of the CO on all grounds. With the assistance of William Stock and the Klasko, Rulon, Stock & Seltzer law firm, ETSU asked for en banc review, which was granted by the full Board.  The en banc review was also supported by a separate “friend of the court” (amicus curiae) brief from the American Immigration Lawyers Association (AILA). On review, the BALCA panel agreed that under the statute and regulations at 20 C.F.R. § 656.24(b)(2)(ii), the "more qualified" standard applies to recruitment for college and university teachers under both the basic process at 20 C.F.R. § 656.17 and the special recruitment process of 20 C.F.R. § 656.18.

However, even though BALCA agreed with this important point, they ultimately upheld the CO's denial of the PERM application based on the other grounds asserted by the CO. Specifically:
"The fact that the employer may select the alien if he or she is more qualified than each U.S. applicant for a college or university teaching position does not extinguish the reasons for requiring the employer to list all of its requirements on the Form 9089 and for the Department‘s treatment of preferences used in advertisements as requirements for purposes of assessing a PERM application."

The "preferences" that the CO and BALCA found to constitute "requirements" for purposes of the standard labor certification rule at 20 C.F.R. § 656.17(f)(6) included the preferred level of knowledge of a foreign language, preferred degree level, and field of specialization.

The panel stated in footnote 14 that its holding is limited to applications filed under the basic labor certification process at 20 CFR §656.17, but employers should be aware of this case even when filing special handling labor certifications under 20 CFR §656.18.
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