BALCA on PERM, Special Skills - Matter of Smartzip Analytics

Matter of Smartzip Analytics, Nov. 9, 2016- "We recognize that the issue in this case differs from the issue in Apple; however, much of the panel‟s reasoning applies to the facts in this case. Here, the CO found that because the Employer did not indicate a duration requirement for the special skills listed in Section H.14, it was necessary to gauge the required duration by looking to the Employer‟s responses in Sections H.6 and H.10, which required applicants to have 60 months of experience in the job offered or in a related occupation. The CO was faced with this dilemma because the Form 9089 does not solicit a duration requirement for the special skills listed in Section H.14. Neither the Form 9089, nor the Form 9089 instructions, solicits a statement of a duration requirement for the special skills listed in Section H.14. Unlike Sections H.6 and H.10, Section H.14 does not have a Subpart A question requesting how many months of experience are required in each special skill. Although the CO‟s concern about needing to know the duration required of special skills when assessing the PERM application was reasonable, we find that the application cannot be denied on its face based on a failure to provide a duration requirement for special skills listed in Section H.14, short of legally sufficient notice of a requirement to do so. Like the panel determined in Apple, the CO was permitted, under the regulations at 20 C.F.R. § 656.20(d)(1), to request supplemental information rather than assuming that 60 months of experience in each cited special skill was required. It was unreasonable for the CO to make this assumption when the Employer did not make an affirmative statement that 60 months of experience in each special skill was required.6 .... IT IS ORDERED that the denial of labor certification in this matter is REVERSED and that this matter is REMANDED for certification pursuant to 20 C.F.R. § 656.27(c)(2)."

6 Because we find that the Employer was not required to include a duration requirement for special skills listed in Section H.14, we do not reach the Employer‟s arguments addressing the definition of its phrase “Experience must include experience with.”