Early last week, the Department of Labor's ("DOL") Office of Foreign Labor Certification ("OFLC") met with the American Immigration Lawyer's Association's ("AILA") DOL Liaison Committee for its quarterly stakeholder meeting. During their meeting, representatives from AILA and OFLC discussed a recent issue plaguing employers filing PERM cases on behalf of employees where the employer has used "competitive", "negotiable", "depends on experience", or similar language in reference to salary in some or all of its advertising, resulting in DOL denying the PERM. DOL's reasoning behind these denials was that U.S. workers might have been dissuaded from applying for these positions by the use of this vague (yet very common) language concerning salary. In its meeting last week, OFLC indicated they are closely reviewing a recent BALCA decision on this point (Matter of TekServices) and in the interim they are suspending denials of pending applications that involve this salary language issue.
At that same meeting, AILA and OFLC discussed recent PERM denials based on non-qualified experience in Section H. 14 of ETA Form 9089. For example, if an employer's minimum requirements for the offered position listed in H. 14 involved 5 years experience in software development, in addition to experience with JAVA and .NET, DOL was determining that "5 years experience" applied to both software development and the experience with JAVA and .NET since the employer did not specifiy a different number of months/years experience with those computer languages. DOL was then denying PERM applications where it appeared the alien worker did not have all the necessary experience based on this standard. During the meeting last week, OFLC indicated they are closely reviewing a recent BALCA decision (Matter of Smartzip Analytics) and they are suspending denials of pending applications that involve this H.14 non-qualified experience issue.