Immigration Nation: by Jeffrey L Robbins

BALCA: “May Be Assigned To Various Unanticipated Sites” Confuses People!

 Matter of Oracle America, Inc., BALCA Case No.: 2011-PER_00963.

When reading the following excerpt from the case, please note that the NOF (Notice of Filing) is not an advertising or recruiting tool.  It is intended to give notice to existing employees, who then “may submit to the Certifying Officer documentary evidence bearing on an application for permanent alien labor certification,” which “may include information on available workers, information on wages and working conditions, and information on the employer’s failure to meet the terms and conditions for the employment of alien workers and co-workers.”  See 20 CFR 656.10(e).  In other words, it is not a document used to find applicants.  With that in mind, enjoy:

        We find that on the facts of the case before us, a potential job applicant could be confused in thinking that all the Software Engineer positions had the potential requirement of travel.  In Microsoft,the panel relied on the fact the employer’s NOF listed a “myriad” of job requirements and duties, all listed in the disjunctive, signifying that not all the requirements applied to all of the positions.  In contrast, the NOF in the appeal before us did not list any job duties or requirements other than the possible travel requirement.  Although it is clear that the NOF was for multiple positions as it states “Software Engineers” in the plural, the NOF did not contain multiple requirements, listed in the disjunctive, for the various positions listed on the NOF.  Thus, there are no contextual cues in the NOF that would signify to a reader that the travel requirement only applied to some of the positions.  The Employer in no way differentiated between the various software engineer positions.  Additionally, unlike the Microsoft case, the travel requirement in the NOF is not in the passive voice, “making it understood that the subject of [the] sentence is ‘some positions.’”  Thus based on the “overall context” of the NOF in this case, it is not clear that an applicant would know that the potential travel requirement does not apply to all the positions. As such, the phrase “may be assigned to various unanticipated sites” constituted a travel requirement that exceeded the requirements listed in the ETA Form 9089.