When ETA 9089 did not indicate a foreign worker’s license or certification, BALCA did not accept such requirements as the actual minimum requirements

Fact

In Matters of Rite Aid Headquarters Corp, the position of “Pharmacist” required prospective candidates to hold a valid State of California Pharmacist License and Immunization Certificate. However, Section K of the Forms ETA 9089 did not specify that the foreign workers possessed the valid State of California Pharmacist License and Immunization Certificate at the time of hire.

Section K did not indicate foreign worker’s license or certification = employer’s stated minimum requirements are not the actual minimum requirements

The Certifying Officer (CO) denied the application because the application did not indicate in Section K that the foreign worker possessed the required license and certification described in Section H.14 at the time of hire. Therefore, the CO concluded that the employer’s stated minimum requirements for the position (i.e., requiring the license and certificate) were not the actual minimum requirements.

Employer’s Argument that the worker could not function as a pharmacist without a license was not accepted

The employer requested a review of the denial. The employer argued that According to California law, the foreign worker could not function as a pharmacist without a license. The employer emphasized that Section K demonstrated the foreign worker had been employed as a pharmacist for many years before the filing of the Form ETA 9089 and that the title of “Pharmacist” itself, as stated in their job title, implied that the foreign worker possessed the required valid State of California Pharmacist License and Immunization Certificate.  The CO affirmed its denial and forwarded the matter to BALCA.

BALCA Decision

BALCA cited regulations at 20 CFR 656.17(i)(3) and the Form ETA 9089 instructions requiring employers to specify and provide job details and specifically the possession of certification and licenses in Section K.

BALCA held that Form ETA 9089 requires employers to list all licenses or certifications.

BALCA stated that the CO was not responsible for deciphering or interpreting the foreign worker’s eligibility for the position.

BALCA further noted that, without the required information in Section K, the CO could not know whether the foreign worker possessed the actual minimum requirements of the offered position.

BALCA rejected the employer’s argument that the foreign worker’s past employment as a “Pharmacist” implied his possession of the valid State of California Pharmacist License and Immunization Certificate.

In addition, BALCA rejected many pre-PERM decisions permitting reliance on implied or inherent requirements because PERM is an attestation-based program intended to streamline the process so that the CO can make its decision based on the information contained in the application alone.

BALCA concluded that because Section K did not contain information about the foreign worker’s valid State of California Pharmacist License and Immunization Certificate, the employer’s stated requirements could not have represented the employer’s actual minimum requirements, which constituted a violation of 20 CFR 656.17(i) (1), requiring affirmation of the CO’s denial of certification.

Conclusion

We will ensure that  all the qualifications of the foreign worker are listed so that there is no ambiguity as to how the foreign worker meets every one of the requirements of the offered position, as stated in Form ETA 9141, Application for Prevailing Wage Determination, and Form ETA 9089.