June 2019

Managed Health Care Company Prevails in Permanent Residency Matter

North America - United States | North America

A managed health care company secured a favorable outcome in a six-year struggle to secure permanent residency for a key employee. Faegre Baker Daniels represented the company in the matter.
 
The case originated in July 2013, when the company filed an Application for Permanent Employment Certification (Form 9089) for an applications development consultant. U.S. Department of Labor (DOL) regulations require that the company “test the labor market” to show there are no qualified U.S. workers available for the position. Employers are also required to post an internal notice of filing (NOF) with the job description and requirements.
 
Following an application audit and review of the company’s backup documentation in March 2015, the certifying officer (CO) denied the application, citing the company’s failure to list the drug testing requirement in its advertisement. The CO also denied reconsideration, prompting FaegreBD to appeal to the Board of Alien Labor Certification Appeals (BALCA) in October 2015. 
 
The firm filed a brief arguing that the NOF sufficiently met the requirements set forth in Form 9089 – that is, it “advised interested parties of the filing of a permanent labor certification application” and “advised qualified U.S. workers of the job opportunity” – and that the drug testing requirement was something that anyone viewing the NOF would already be aware of (as only employees and contractors could physically access the NOF).
 
The DOL upheld the appeal in June 2019, finding that the CO erred in denying certification.
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