An important goal of the Immigration and Nationality Act (INA) is to protect U.S. workers from being displaced in the job market by foreign workers. Certain employment-based permanent residence applications therefore require the employer to obtain a Labor Certification (PERM) from the Department of Labor.
In order to obtain a Labor Certification, the U.S. employer must prove that there are not sufficient U.S. workers who are able, willing, qualified and available to perform the work. When determining if there are able, willing, qualified and available workers, the “minimum” requirements to perform the work are compared to any U.S. applicants’ qualifications. The foreign worker who is offered the position must also meet those “minimum” requirements. Experience gained while working for the sponsoring employer may not be used by the foreign worker to meet the minimum requirements, unless certain exceptions apply. One of the exceptions involves a situation where it is no longer feasible to train a new worker to perform the work.
On May 22, 2014, in Matter of Kentrox, the Board of Alien Labor Certification Appeals (BALCA) discussed the infeasibility-to-train situation and held that the employer in that case had presented sufficient evidence of its infeasibility to train a new worker for position offered to the foreign worker. The employer in that case was a producer of remote site management software with over one million products deployed in carrier and enterprise networks. The employer claimed that it was in the midst of a critical product maturation phase for the following three years and that the foreign worker’s contributions to that phase were critical.
BALCA found that the employer in Matter of Kentrox had made a credible presentation of its need to keep the foreign worker on during product maturation and frequent product updates and releases because it would take two years to train someone to his level of competency and specific product knowledge, during which time software development would stall. Although the employer did not provide documentation directly supporting its statements, BALCA found the credible statement alone to be sufficient evidence of its infeasibility train a new employee. Therefore, BALCA reversed the Certifying Officer’s denial and granted the Labor Certification.