A federal judge recently withdrew the regulations that increased the minimum EB-5 investment amount to $900,000 for a TEA investment and also set back the rules about what constitutes a TEA. This was interesting timing because of the regional center program’s sunset in less than a week. It’s unlikely the $500,000 investment amount will be back for long, but at least for now, it appears to be the law.
Recent BALCA Decisions
A lot of the recently-released BALCA decisions have involved cases where DOL Certifying Officers read too much into experience requirements from employers listed on the PERM form. An example may be a software engineer who needs 24 months of experience AND must have a variety of skills and/or certifications. These requirements are independent of one another. Put differently, an employee must have 24 months of experience doing the job, but need not have exactly 24 months of history practicing every skill listed as being necessary to do the job. You can find these here and here, among others.
Another case that came out recently shows the exacting nature of the PERM process. Linked here, the certification was denied because the employer (or lawyer) accidentally submitted an advance copy (earlier draft) of a Notice of Filing. The one actually posted was correct as to the offered wage. That case was denied and remained so, even though everything was done properly - just the wrong evidence was submitted. At my office, best practice is to separate “draft” and “recruitment” documents into different folders to avoid this type of problem.
Recent BALCA Rundown
Since COVID, the number of decisions coming out of BALCA has really ground to a crawl. While fewer cases are being filed now than in the past, they’re still working through the backlog pretty slowly. I don’t know that any of these cases are all that revelatory, but a few notes are below from decisions coming out in the past few months.
In Liberty Mutual Group, the employer and worker kind of dodged a bullet. There were clearly conflicting statements on the PERM form about what the actual minimal requirements for the position were, but the CO denied it on a catch-all basis rather than the correct statutory one, which practice was disallowed in 2016. If there is a specific statutory basis for the denial, it has to be listed. This is one of those things that illustrates the unforgiven program rules also muck up the DOL as well. With that being said, of course, this highlights that we do not have the greatest system in place.
This one was kind of a bummer, but the result was the only correct one under the law. A school district was trying to retain a special education teacher, but botched the Notice of Filing and the PERM was properly denied.
A case involving Intel shows how long these things can drag on sometimes. The reconsideration request was filed in 2013 and the final decision came just late last year. I do not have much to say on this except that it appears to be a case where the original CO was working really hard to deny the case for whatever reason and based the decision on incorrect (clearly) analysis of the relevant facts. Fortunately, the Board stepped in to correct it… after many years.
State Workforce Authority ("SWA") Technical Issues
One semi-relieving BALCA decision from recent months is one you can find here involving System Soft Technologies. In a supervised recruitment case, the CO asked the employer to post the shift hours in the State Workforce Authority (“SWA”) job order. There was no space for this in the technological interface offered in the SWA’s system; in this case, it was Florida - but do not rely on that for any reason, because these things can change and other states may be different. The CO denied because the employer did not include these details in its job order and claimed the employer should have chosen to put it in any free text space available. Fortunately, BALCA reversed. The key was that the employer did not just claim this was impossible, but also provided the full posting showing all available fields to show there was not one to enter hours.