U.S. Department of Labor Board of Alien Labor Certification Appeals

800 K Street, NW, Suite 400-N Washington, DC 20001-8002 (202) 693-7300 (202) 693-7365 (FAX)

Issue Date: 21 November 2012

In the Matters of:

MPHASIS CORP.,

Employer,

on behalf of

SHINY CHACKO, BALCA Case No.: 2011-PER-02549

ETA Case No.: A-08346-13407

SASIKUMAR CHANDRAN, BALCA Case No.: 2011-PER-02640

ETA Case No.: A-08319-05393

SWAGAT DASH, BALCA Case No.: 2011-PER-02657

ETA Case No.: A-09022-22788

RAO SUBRAHMANYA BALCA Case No.: 2011-PER-02675

TARIKERE RANGANATHA, ETA Case No.: A-09027-23990

Aliens.

Certifying Officer: William Carlson

Atlanta Processing Center

Appearances: Melissa L. C. Chan, Esq.

The Chugh Firm, APC

Santa Clara, CA

For the Employer

Gary M. Buff, Associate Solicitor

Office of the Solicitor

Division of Employment and Training Legal Services

Washington, DC

For the Certifying Officer

Before: Calianos, Geraghty, McGrath

Administrative Law Judges

JONATHAN C. CALIANOS

Administrative Law Judge

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DECISION AND ORDER

AFFIRMING DENIALS OF CERTIFICATION

These matters arise under section 212(a)(5)(A) of the Immigration and Nationality Act, 8

U.S.C. § 1182(a)(5)(A), and the “PERM” regulations found at Title 20, Part 656 of the Code of

Federal Regulations (“C.F.R.”). The above captioned cases have been consolidated because they

present the common issue of whether the Certifying Officer (“CO”) of the Employment and

Training Administration (“ETA”), Office of Foreign Labor Certification (“OFLC”) correctly

denied labor certification for three foreign workers on grounds that the Employer had not

complied with 20 C.F.R. § 656.17(h)(4)(i), which requires the Employer’s alternative job

requirements to be substantially equivalent to its primary job requirements. For the reasons set

forth below, we affirm the denials of the Employer’s Applications for Permanent Employment

Certification.

BACKGROUND

On February 4, 2009, the Certifying Officer (“CO”) accepted for filing the Employer’s

Application for Permanent Employment Certification for the position of “Systems Specialist.”

(AF 44).1 The CO did not conduct an audit, but instead denied the application on February 5,

2010, because the alternative requirements for the job opportunity listed in the Employer’s ETA

Form 9089 are not substantially equivalent to the primary requirements in violation of 20 C.F.R.

§ 656.17(h)(4)(i). (AF 41). Specifically, the CO stated:

[T]he employer’s alternative combination of education and experience, three

years of experience for each missing year of university, college education in lieu

of bachelor’s degree or foreign equivalent, is not substantially equivalent to the

employer’s primary requirements of a bachelor’s degree in group item H.4 and 12

months experience as a Systems Specialist. The primary combination of education

and experience equates to 3 years while the alternative combination totals 13

years . . . .

On March 5, 2010, the Employer filed a request for reconsideration. (AF 3-39). The

Employer argued that the CO’s assessment of the number of Specific Vocational Preparation

1 The facts and arguments presented in each captioned appeal are virtually identical. Thus, for purposes of this

Decision and Order, we will cite to a representative appeal file, 2011-PER-02657, which will be referenced to as

“AF” followed by the page number.

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(“SVP”) years required for its alternative requirements is incorrect. (AF 4). The Employer asserts

that its alternative requirement of 3 years of experience for every year of missing

college/university level credit equals only 2 SVP years (the amount of SVP years equivalent to a

Bachelor’s degree) instead of 12 SVP years. The Employer reasoned that experience gained

without a Bachelor’s degree cannot be equated with experience gained with a Bachelor’s degree.

(AF 4, 8). To support this assertion, the Employer submitted as “Exhibit A” a letter by Professor

Jaswinder Pal Singh from Princeton University’s Department of Computer Science who opined

that “three years of qualifying, relevant experience is frequently viewed as correlating accurately

to the content of a single year of concentrated, academic study in the same field.” (AF 8). The

Employer argued that assigning the same number of SVP years to two years of experience as to a

Bachelor’s degree suggests that 2 years of experience is equal to 4 years of schooling towards a

specialized degree, and provides no incentive to acquire a formal education. (AF 10).

On August 31, 2011, the CO upheld his denial pursuant to 20 C.F.R. § 656.17(h)(4)(i)

and forwarded the case to BALCA.2 On December 14, 2011, BALCA issued a Notice of

Docketing. The Employer filed a Statement of Intent to Proceed on December 27, 2011, but did

not file an appellate brief. The CO did not file a Statement of Position. On September 10, 2012,

the Employer certified via email that the job identified on the PERM application is still open and

available and that the alien identified in the application remains ready, willing, and able to fill the

position.

DISCUSSION

Employers may include in their ETA Form 9089 alternative job requirements in addition

to primary job requirements, so long as the alternative requirements are “substantially equivalent

to the primary requirements of the job opportunity for which certification is sought.” 20 C.F.R.

§ 656.17(h)(4)(i). According to 20 C.F.R. § 656.17(h), the requirements for a job opportunity

2 The CO’s explanation for upholding his denial in his transmittal letter is flawed for several reasons. In his denial

letter, the CO originally found that the primary requirements in section H.4 and H.6 of the application are not

substantially equivalent to the alternative requirement in section H.14. However, in his transmittal letter he stated

that the denial letter indicated that sections H.4 and H.6 are not substantially equivalent to alternative requirements

in sections H.8A and H.8C. Second, the CO incorrectly interpreted the Employer’s requirements in H.8A and H.8C

and miscalculated the number of SVP years required by H.8A and H.8C. However, this does not affect our

affirmance of the CO’s denial because we find, as discussed below, that based on the CO’s original denial, the

Employer’s alternative requirements as explained in H.14 are not substantially equivalent to the Employer’s primary

requirements in H.4 and H.6.

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“cannot exceed the Specific Vocational Preparation (“SVP”) level assigned to the occupation as

shown in the O*NET job zones.” SVP means “the amount of lapsed time required by a typical

worker to learn the techniques, acquire the information, and develop the facility needed for

average performance in a specific job-worker situation.” 20 C.F.R. § 656.3. The SVP range

associated with the position identified in the Employer’s application is “7.0 to < 8.0.” See O*Net

Online, Summary Report for: 15-1132.00 - Software Developers, Applications,

http://www.onetonline.org/link/summary/15-1132.00 (last visited November 15, 2012). A SVP

Level 7 requires at least 2 SVP years and no more than 4 SVP years. 20 C.F.R. § 656.3.

The Preamble to the Final Rule implementing the PERM regulations specifically

addresses how to translate an education level into its experiential equivalent. The Preamble states

that, utilizing Field Memorandum No. 48-94 (May 16, 1994) as guidance, “a bachelor’s degree is

equivalent to 2 years [SVP].” ETA, Final Rule, Labor Certification for the Permanent

Employment of Aliens in the United States; Implementation of New System, 69 Fed. Reg. 77326,

77332 (December 27, 2004). The purpose of the SVP levels is to ensure that the job requirements

are not tailored to the alien identified in the application, but rather are tailored to the position

itself. St. Mobile Aerospace Engineering, Inc., PDF at 4, 2009-PER-00429 (July 9, 2010).

The Employer indicated in its ETA Form 9089, sections H.4 and H.6 that the primary job

requirements for the position identified were a Bachelor’s degree in Computer Science,

Computer Applications, Computer Engineering, or Computer Information Systems, and 12

months of experience in the job offered.3 (AF 4-5, 44-45). The Employer stated in section H.7

that it would also accept a Bachelor’s degree in Electronic Engineering, Electrical Engineering,

any Engineering field, Math, Physics, or related field, and in section H.9 that it would accept a

foreign equivalent. (AF 4-5, 45). In section H.10, it stated that it would accept 12 months

experience in the following alternate occupations: software consultant, systems engineer,

software engineer, programmer, or related work. (AF 4-5, 45).

In sections H.8A-C, the Employer stated that it would accept as an alternative to a

Bachelor’s degree, a “foreign three-year Bachelor degree or equivalent university/college [level

credit]” and 3 years of experience. (AF 4-5, 45). In section H.14 of the application, the

3 In the application associated with case number 2011-PER-02640, the Employer does not require the one year

experience in the job offered.

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Employer explained that it would accept “any suitable combination of education, training or

experience . . . , i.e. three years of experience for each missing year of university/college

education in lieu of a Bachelor’s degree or foreign equivalent.”4 (AF 4-5, 45).

The CO and Employer both agree that the total SVP years for the Employer’s primary

requirements of a Bachelor’s degree and 1 year of experience equals 3 SVP years according the

Field Memorandum and the Preamble to the Final Rule. However, the CO states that the

Employer’s alternative requirement of “three years of experience for each missing year of

university/college education” is not substantially equivalent to the Employer’s primary

requirements because the alternative requirement requires as much as 13 SVP years,5 compared

to the 3 SVP years under the primary requirements. The Employer argues that one year of

experience without a Bachelor’s degree is not the equivalent of one year of experience with a

Bachelor’s degree. Instead, the Employer argues that 3 years of experience without a degree is

the equivalent of 1 year of university/college. Thus, 12 years of experience is the equivalent of a

Bachelor’s degree, and because a Bachelor’s degree is 2 SVP years, so is 12 years of experience

without a degree.

There is nothing in the PERM regulations, regulatory history, or the Field Memorandum

that supports a finding that 3 years of experience without a degree is the equivalent of one year

of college/university level credit. Furthermore, the relevant authority provides no distinction

between experience gained with a degree and experience gained without a degree. Thus, based

on a straightforward application of 20 C.F.R. § 656.3 and the Field Memorandum, we find that 1

year of experience (with or without a degree) equals 1 SVP year, and a Bachelor’s degree equals

2 SVP years.

4 Some of the Employer’s listed requirements in its ETA Form 9089, specifically in sections H.4B, H.7A, H.8B, and

H.10B, were cut off as a result of the restricted amount of space available to fill in its requirements. For purposes of

this decision, we have accepted the Employer’s articulation of its primary and alternative requirements.

5 We assume that this number is derived as follows: 4 years of college/university x 3 years of experience per year =

12 years; 12 years + the required 1 year experience = 13 years.

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Accordingly, because an applicant may be required to have up to 13 years of experience6

under the Employer’s alternative requirements, in comparison to 3 years under the primary

requirements, the two sets of requirements are not substantially equivalent, and we therefore

affirm the CO’s denials of certification pursuant to 20 C.F.R. § 656.17(h)(4)(i). See St. Mobile

Aerospace Engineering, Inc., 2009-PER-00429 (July 9, 2010); Globalnet Management L.C.,

2009-PER-00110 (August 6, 2009).

ORDER

It is ORDERED that the denials of labor certification in this matter are hereby

AFFIRMED.

For the Panel:

JONATHAN C. CALIANOS Administrative Law Judge

6 We note that this also exceeds the maximum of 4 years of experience for a SVP Level 7 position under 20 C.F.R.

§ 656.3.

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NOTICE OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Order

will become the final decision of the Secretary unless within twenty days from the date of service

a party petitions for review by the full Board. Such review is not favored and ordinarily will not

be granted except (1) when full Board consideration is necessary to secure or maintain

uniformity of its decisions, or (2) when the proceeding involves a question of exceptional

importance. Petitions must be filed with:

Chief Docket Clerk

Office of Administrative Law Judges

Board of Alien Labor Certification Appeals

800 K Street, NW Suite 400

Washington, DC 20001-8002

Copies of the petition must also be served on other parties and should be accompanied by a

written statement setting forth the date and manner of service. The petition shall specify the

basis for requesting full Board review with supporting authority, if any, and shall not exceed five

double-spaced pages. Responses, if any, shall be filed within ten days of service of the petition,

and shall not exceed five double-spaced pages. Upon the granting of a petition the Board may

order briefs.