Digest of PERM Decisions of the Board of Alien Labor Certification Appeals
[Last Updated December 1, 2010]
- Scope of BALCA Review / Authority
- Documents or Legal Argument Accompanying Reconsideration Request or Appellate Brief
- CO's Letter of Denial Requirements
- Completeness of Form 9089
- Conversion of Pre-PERM Applications
- Retention of Pre-perm Filing Date
- Date of Filing
- Notice of Filing "NOF"
- SWA Job Order
- Newspaper Advertisements
- Professional Recruitment
- Appendix A Professional Occupations
- Minimum Job Requirements
- Date Applicant Completed Relevant Education
- Alternative Experience Requirements
- Audit
- Business Necessity of a Foreign Language
- Employer is a Closely-held Corporation
- Employer's Burden of Proof
- Fundamental Fairness and Due Process
- Prevailing Wage Determination
- Employer Certification
Scope of BALCA Review / Authority
Tekkote , 2008-PER-00218 (Jan. 5, 2008) (Affirming denial)
Although not ruling squarely on the issue, the panel suggested that, consistent with pre-PERM law, 29 C.F.R. § 656.27(c) permits the Board to consider general legal arguments in briefs, but not wholly new arguments not made before the CO. The panel also noted that assertions made by an attorney that are not supported by underlying statements by a person with knowledge of the facts do not constitute evidence.
Eleftheria Restaurant Corp. , 2008-PER-00148 (Jan. 9, 2009) (Affirming denial)
The Board may not consider evidence that is first filed with an employer's appellate brief. 20 C.F.R. § 656.27(c) limits BALCA's review to the record that had been available to the CO.
S. Chae Holding, Inc. , 2009-PER-00135 (Mar. 31, 2009) (Dismissing appeal and remanding)
The Panel finds that it has the authority to remand applications to the CO under the PERM regulations. Although the text of the PERM regulations does not explicitly list this authority as the pre-PERM regulations did, it does not explicitly bar remands either. Accordingly, BALCA will exercise the power to remand where the circumstances so dictate.
Documents or Legal Argument Accompanying Reconsideration Request or Appellate Brief
Denzil Gunnels d/b/a Gunnels Arabians , 2010-PER-628 (Nov. 16, 2010) (remand for reconsideration by the CO)
In Denzil Gunnels d/b/a Gunnels Arabians , 2010-PER-628 (Nov. 16, 2010), BALCA held that the CO's discretion to reconsider a denial or treat it as a request for BALCA review under 20 CFR §656.24(g)(4) cannot be exercised to preclude an employer from presenting evidence to show compliance with the regulations when it did not previously have the opportunity to do so. However, where an employer unambiguously requests BALCA review, it is deemed to understand that the consequence is that the employer cannot supplement the record with argument or evidence that was not before the CO when the CO denied the application.
CVS Rx Services , 2010-PER-1108 and 1275 (Nov. 16, 2010) (returning application to CO for further processing)
The CO erred in forwarding the employer's ambiguous "request for review" to BALCA, rather than treating it as a request for reconsideration, where it precluded the employer from presenting a legal argument that it did not previously have the opportunity to present. In this case, the employer never had the opportunity to present the CO with the argument that the job opportunity in fact required an advanced degree and experience (thereby rendering it eligible to recruit U.S. workers with a journal advertisement), until its application was denied.
California Webbing Mills, Inc. , 2009-PER-00207 (Aug 9, 2010) (affirming denial)
The Employer's application did not establish that the Alien had the required five years of experience, and the Employer's request for review of the denial did not provide supporting documentation to support the claim that the Alien had more than five years of applicable experience.
On appeal, the Employer provided the Board with the Alien's W-2s from 2001 to 2008, showing that the Alien had been with the company for over eight years.
Since the Employer had not documented the Alien's prior experience while the matter was still before the CO, the Board cannot consider the documentation provided by the Employer with its appellate brief. See 20 C.F.R. § 656.27(c).
Second, even assuming arguendo that the Board may consider the W-2 forms on appeal, the W-2s only demonstrate two to four years of work for Webbing Mills West, and they do not identify what type of work the Alien performed.
HealthAmerica , 2006-PER-00001 (July 18, 2006) (en banc) (Vacating denial)
The Employer committed a typographical error on Form 9089 regarding newspaper ad dates. When the CO denied the PERM application for failing the two-Sunday publication rule, the Employer requested reconsideration, submitting newspaper tear sheets clarifying the unintentional typo. The CO denied reconsideration.
The Board found that documentation "previously submitted" in support of a labor certification application constructively includes materials held by the Employer under the recordkeeping provisions of PERM. BALCA held that the Employer may submit such pre-existing documents to support a reconsideration request, without violating the "no-new-evidence" rule of § 656.24(g)(2).
Pa'lante, LLC , 2008-PER-00209 (May 7, 2009) (Reversing denial)
Where the PERM recordkeeping file clearly establishes that the Alien possessed the required qualifications for the job prior to hire, and that recordkeeping file was before the CO in the course of an audit and referenced in the motion for reconsideration, the CO should have taken that documentation into consideration when ruling on the motion for reconsideration (despite the fact that the Employer should have included the Alien's employment history prior to hire by the Employer on the ETA Form 9098.)
Shogun at Bey Lea , 2006-PER-00059 (Oct. 10, 2006) (Affirming denial)
Newspaper tear sheets for an ad not listed on the Form 9089 do not constitute documentation held under the recordkeeping provisions of PERM. Such tear sheets are evidence not previously submitted, within the meaning of § 656.24(g)(2), and therefore cannot be used in support of a motion for reconsideration.
Romy Buerano Agency , 2009-PER-00085 (Feb. 17, 2009) (Affirming denial)
Where the employer fails to submit a copy of the Notice of Filing requested by the CO during the course of an audit, certification must be denied.
Southern Occasions Catering, LLC , 2009-PER-00011 (Jan. 9, 2009) (Affirming denial)
Under PERM, a CO is not required to permit an employer to cure a deficiency by filing a motion for reconsideration supported by new recruitment conducted after the CO denied the application. Thus, the CO was not required to permit the Employer's failure to comply with the two-Sunday newspaper recruitment requirement to be remedied by running a new advertisement. Rather, the Employer's remedy is to file a new labor certification application.
CO's Letter of Denial Requirements
Kay Mays , 2008-PER-00011 (Aug. 27, 2008) (Affirming denial)
The CO must identify the regulation section or subsection allegedly violated, and the nature of the violation, when notifying the applicant of denial.
Medical Care Professionals, Inc. , 2008-PER-00247 (July 17, 2009) (Amending filing date)
The Board has long recognized that an employer must be provided with adequate notice of the regulatory violations found. See, e.g., Carlos Uy III , 1997-INA-304 (Mar. 3, 1999) (en banc) (pre-PERM BALCA decision).
In this case, the Employer was not provided adequate notice of the additional discrepancies in the applications pointed out by the CO for the first time in his appellate brief. Therefore, the new grounds could not be considered by the Board. Since the grounds upon which the requested priority date was denied were rebutted, the Board held that the certification must be amended to allow the filing date to relate back to the date of the pre-PERM application.
YJ USA Corp. ,2009-PER-00164 (Mar. 30, 2010) (Vacating denial)
Although the Employer did not meet its burden of proving that the Alien's former positions with the Employer were dissimilar to the current position, the Board found that the Employer did not have an adequate opportunity to do so. The CO's denial of certification did not detail the reasons for his denial other than stating that the Alien gained the qualifying experience with the Employer in a substantially similar job. It was not until the CO's appellate brief that the CO first detailed his denial reasons, thus the Employer never had an opportunity to respond to these findings. Therefore, in the interest of fundamental fairness and due process, the Board returned the matter to the CO so that the Employer may have an opportunity to respond to the CO's detailed reasons for denial of certification.
TLH Construction Corp. , 2010-PER-688 (Aug. 19, 2010) (per curiam)
Failure of preparer to sign Section M of the Form 9089 is not a mere technicality. "[T]he Section M signature is not a mere validation of the Employer's attestations. It is an affirmation by the preparer that he or she is not knowingly assisting a party in providing false information, and that the preparer acknowledges that doing so is a federal offense. "
Alpine Store Inc. , 2007-PER-00040 (June 27, 2007) (Affirming denial)
An employer bears the burden of ensuring a complete application. "The CO is under no obligation to gather the information needed to perfect an application."
Bushman Associates Inc. , 2007-PER-00014 (Mar. 8, 2007) (Affirming denial)
Certification will be denied where an employer submits an incomplete ETA Form 9089 for review and fails to correct extensive and material omissions when offering documentation to establish compliance with the regulations.
Best Manufacturing, Inc. , 2007-PER-00080 (Dec. 19, 2007) (Affirming denial)
Where the Employer marks "Yes" for H-6, as to whether or not experience is required for the job opportunity, it must make a subsequent entry for H-6A. Failing to specify the months of experience causes the application to be incomplete, and subject to denial pursuant to 20 C.F.R. § 656.17(a)(1).
North County Cooling , 2007-PER-00093 (June 4, 2008) (Affirming denial)
The CO denied the application because the Employer left Section K-8 blank. The Employer asserted that it was a scrivener's error, made by the DOL data entry clerk, but did not provide evidence sufficient to meet its burden of proof. Since the Employer's original application left Section K-8 blank, the Board found that a DOL data entry clerk did not cause the deficiency in the application.
5th Avenue Landscaping , 2008-PER-00027 (Feb. 11, 2008) (Affirming denial)
The submission of a corrected application to the Board, supplying most of the information omitted in the original application, does not cure the problem because the Board's scope of review is limited to the record upon which the CO made her decision. 20 C.F.R. § 656.27(c). Rather, the Employer's remedy is to file an entirely new application with the Certifying Officer.
Yasmeena Corporation , 2008-PER-00073 (Nov. 14, 2008) (Reversing denial)
Immaterial omissions may be addressed through a motion for reconsideration. In filing a paper application, the Employer signed Form 9089 but omitted the date of signing from Section N-3. The Board held this is an immaterial omission, which the CO has discretion to overlook, given electronically submitted applications contain no date or signature.
Cuellar LLC / Shop Rite , 2008-PER-00164 (Feb. 25, 2009) (Affirming denial)
The mere fact that an Employer writes something in a Section of the Form 9089 does not mean it has completed the application in a meaningful way. Even assuming that the SWA did not provide the Occupational Title on the prevailing wage determination form, the Employer's answer to Section F-3 of "Not Provided" is still an inadequate response.
Conversion of Pre-PERM Applications
B&M Auto Service Inc. , 2008-PER-00122 (Oct. 28, 2008) (Affirming denial)
Where a PERM application differs from the Employer's pre-PERM application as to the educational requirements, it is proper for the CO to assign a priority date based on the PERM application, not the pre-PERM filing. Pre-PERM and PERM Filings must be identical.
M & K Enterprises , 2008-PER-00091 (Oct. 29, 2008) (Affirming denial)
Where a PERM application differs from the Employer's pre-PERM application as to the length of required experience, it is proper for the CO to assign a priority date based on the PERM application, not the pre-PERM filing.
North Forest Independent School District , 2008-PER-00062 (Aug. 27, 2008) (Affirming filing date; vacating denial of reconsideration)
Under the PERM regulation at 20 C.F.R. § 656.17(d)(4), the job descriptions must be identical in order for the employer to retain the filing date from an earlier pending pre-PERM application. In this case, the job title, job description, and job location were all different.
Retention of Pre-Perm Filing Date
Spectrum Building Services, Inc. , 2010-PER-00079 (July 9, 2010) (affirming denial)
An employer that has a pre-PERM application pending is presented with the option to re-file under PERM to try to achieve a more expedient time for processing. However, the provision requires that, in order to retain the filing date from the pre-PERM application, the prior application must have been identical in all material respects to the new application. 20 C.F.R. § 656.17.
In this case, the original filing was deficient for many reasons. It was never amended to correct these deficiencies. While Employer has been properly credited with filing a "correct" application under PERM, it is not entitled to an award of the earlier priority date simply because it could have amended the earlier application to correct deficiencies to conform to its PERM filing. Employer never amended the prior application and therefore its PERM filing is not identical. Accordingly, the CO correctly applied the regulations to set the filing date based on the date that the PERM application was accepted for processing.
Select Imports, Inc. , 2008-PER-00040 (Apr. 28, 2008) (Reversing denial and remanding)
The Employer sent a letter to the SWA prior to withdrawing its pre-PERM application in favor of re-applying under PERM. The letter notified the SWA of several amendments to its application, including a change of address. Under § 656.17(d)(4), the letter to the SWA constitutes an amendment to be included in the pre-PERM filing, rendering the two filings identical for the purpose of establishing a filing date.
Medical Care Professionals, Inc. , 2008-PER-00247 (July 17, 2009) (Amending filing date)
In this case, the Employer was not provided adequate notice of the additional discrepancies in the applications pointed out by the CO for the first time in his appellate brief. Therefore, the new grounds could not be considered by the Board. Since the grounds upon which the requested priority date was denied were rebutted, the Board held that the certification must be amended to allow the filing date to relate back to the date of the pre-PERM application.
Caf� Vallarta , 2007-PER-00029 (June 12, 2007) (Affirming denial)
Under § 656.17(c), the filing date for a mailed application is the date the CO stamps it as received, not the postmark date. An employer who chooses not to use the ETA's electronic process for filing a Form 9089 must build in sufficient time for transmittal by postal service or other courier, and initial processing by the CO's mail room staff to ensure that its recruitment advertisements will comply with the timing requirements of Section 656.17(e).
First Trick Services , 2007-PER-00091 (Mar. 28, 2008) (Affirming denial)
The Employer asserted that it used FED-EX OVERNIGHT to transmit its application; however, it did not provide documentary evidence - such as a copy of the Sender's Copy of the US Airbill affixed to the package - supporting its assertion. A bare assertion without supporting evidence is insufficient to carry the Employer's burden of proof.
Richmond Printing LLC , 2007-PER-00035 (June 12, 2007) (Affirming denial)
A mere difficulty in filing the application on-line does not excuse the Employer's failure to file on time before its recruitment had expired. Further, the timing requirements of pre-filing recruitment under § 656.17(e) should be counted in calendar days, not business days.
Subhashini Software Solutions , 2007-PER-00043 (Dec. 18, 2007) (Reversing denial)
If an Employer resubmits its Form 9089 due to a cosmetic deficiency not required by the regulations, such as missing the DOL logo, the CO should process the application as if filed when first received, using the timestamp on the original application.
- CO's Address on the NOF
Hawai'i Pacific University , 2009-PER-00127 (March 2, 2010) (en banc) (affirming denial of certification)
In Hawai'i Pacific University , 2009-PER-00127 (March 2, 2010) (en banc), the employer listed the address of the regional office at ETA rather than the CO at the NPC in its Notice of Filing. BALCA affirmed the CO's denial, finding that the employer's failure to list the correct address for the appropriate Certifying Officer in its Notice of Filing was not harmless error and violated 20 C.F.R. § 656.10(d)(3)(iii).
Soon Pal Kwon , 2010-PER-00056 (June 1, 2010) (affirming denial)
Employer listed two addresses on the NOF for contacting the CO. Interested persons were instructed to send comments to "either (or both) offices." One address was the appropriate CO address at the Atlanta National Processing Center ("ANPC"). However, the other address was for the Harrisburg Processing Unit. The Harrisburg office does not have jurisdiction over the application and would neither have awareness nor the information necessary to forward any documentation received to ANPC. Had the Employer either omitted the Harrisburg office from the NOF or instructed interested parties to send their submissions to both addresses, rather than "either" address, the result may have been different.
Mascon Restoration, Inc. , 2009-PER-00403 (June 1, 2010) (affirming denial)
Employer indicated in the Form 9089 that it was not required to post a NOF. The CO denied for failure to post a NOF, and the Employer filed a motion for reconsideration contending that it had posted a NOF. The CO issued an audit notification directing Employer to submit a copy of the NOF. The CO again denied certification because the NOF submitted with the audit response did not include the CO's address at the Atlanta National Processing Center, in violation of 20 C.F.R. § 656.10(d)(3)(iii). Employer filed a request for review of the denial, attaching to the request a new version of the NOF that included the name and street address of the Atlanta National Processing Center.
A NOF must be provided between 30 and 180 days before filing the application. The NOF attached to the request for review was apparently created after the denial determination. Thus, it did not cure the failure to post a compliant notice prior to Employer's filing of the application.
Frank's Pizza & Italian Restaurant , 2009-PER-00193 (May 5, 2010) (per curiam) (affirming denial)
Employer failed to provide the correct address of the CO on the NOF, as required by 20 C.F.R. § 656.10(d)(3). The panel affirmed the CO's denial of certification. The NOF requirement cannot be lightly dismissed under a harmless error finding. The enforcement of regulatory requirements does not in itself offend fundamental fairness or procedural due process.
As the Board stated in Hawai'i Pacific University , 2009-PER-00127 (Mar. 2, 2010)(en banc), "it is simply unreasonable for petitioning employers to put the burden on [a state processing unit] to redirect communications about labor certification applications from workers or members of the public when the regulations direct employers to put the proper address on the Notice of Filing in the first instance." Slip op. 14.
In the instant case, the Employer listed an address in New York, rather than the address of the appropriate CO in Atlanta. In contrast to the facts of Brooklyn Amity , the NOF was posted at the Employer's premises over two years after the New York office had stopped processing pre-PERM applications.
Voodoo Contracting Corp. , 2007-PER-00001 (May 21, 2007) (Affirming denial)
Under § 656.10(d)(3), the Employer's Notice of Filing must contain the address for the appropriate CO, even when converting a pre-PERM application, where the appropriate CO's address changed between filings. Reference to a USCIS sample notice does not satisfy this regulation and omitting the CO's address cannot be dismissed as a harmless error.
Tekkote , 2008-PER-00218 (Jan. 5, 2008) (Affirming denial)
Where the Employer's Notice of Filing makes no reference whatsoever to the opportunity to contact a federal Certifying Officer about the labor certification application, and does not include the CO's address, it is clearly in violation of the regulation at § 656.10(d)(3)(iii). The CO is not obligated to permit a re-posting of the Notice of Filing after the Employer files the Form 9089.
Brooklyn Amity School , 2007-PER-00064 (Sept. 19, 2007) (Reversing denial and granting certification)
The Employer, while recruiting for a job opportunity, posted the address of the Regional CO's office in NYC. ETA was in the process of eliminating the NY regional CO office, and had already begun processing all applications in the new national processing centers in Atlanta and Chicago. However, because the NY office was still open during the time of the posting of Employer's Notice of Filing, and because of the major changes engendered by the new PERM regulations, BALCA ruled that the NY CO's office "was at least arguably an appropriate place for a person to provide documentary evidence bearing on the application for a job in Brooklyn."
Therefore, within the context of only these specific facts, the New York CO's office was deemed to be an "appropriate Certifying Officer" under § 656.10(d)(3)(iii).
Centro Cultural Chicano, Inc. , 2008-PER-00053 (Feb. 17, 2009) (Affirming denial)
The Employer listed the old pre-PERM Chicago Regional CO instead of the National Processing center, at a different address. Because the old office was no longer open, ETA had provided the public sufficient notice of the new location and requirements, and because significantly more time had passed since the effective date of the PERM regulations, the Employer's mistake did not fit within the limited exception created by Brooklyn Amity School .
Form-Co Supply, LLC , 2007-PER-00118 (Feb. 17, 2009) (Affirming denial)
Listing the ETA's Washington D.C. headquarters instead of the Atlanta National Processing Center fails to satisfy § 656.10(d)(3)(iii), which requires the Notice of Filing to contain the appropriate CO's address. Since the Employer listed ETA's headquarters address and not a CO's address, it does not fit into the limited exception created by Brooklyn Amity School .
Hawai'i Pacific Univ. , 2009-PER-00127 (March 2, 2010)(en banc) (Affirming denial)
In this case, the Employer listed the address for an office in San Francisco, which had processed labor certification applications arising out of Hawaii before the effective date of the PERM regulations and still listed Hawaii within its jurisdiction on the ETA Region VI's web site. In contrast to Brooklyn Amity School , in this case the PERM regulations had already been in effect for almost two years prior to the Employer's posting of its Notice of Filing, and the CO had provided ample notice of where PERM applications would be processed in the form of Federal Register notices and FAQ postings on its web site. Accordingly, too much time had passed from the effective date of the PERM regulations to attribute the Employer's error to the newness of PERM. Moreover, it is unreasonable for petitioning employers to put the burden on [ETA] to redirect communications about labor certification applications from workers or members of the public when the regulations direct employers to put the proper address on the Notice of Filing in the first instance.
Although the Board has recognized that notions of fundamental fairness and procedural due process are applicable in PERM processing, the Notice of Filing requirement is an implementation of IMMACT's notice/posting requirement that cannot be lightly dismissed under a harmless error finding. The enforcement of the regulatory requirements implementing this statutory purpose does not in itself offend fundamental fairness or procedural due process. Thus, in this case the circumstances do not support a finding either that the Employer's error in listing the wrong ETA office was excusable, or that the statutory and regulatory purpose of the Notice of Filing had been served despite the error in the listing of the CO's address.
- Prevailing Wage on the NOF
Dunkin Donuts , 2008-PER-00135 (Jan. 5, 2009) (Affirming denial)
§ 656.10(d)(4) requires the Employer to state the rate of pay in the Notice of Filing. The Employer's inclusion of the rate of pay in the Form 9089 does not cure the failure to include the rate of pay on the NOF.
Thomas L. Brown Associates, P.C. , 2009-PER-00347 (Sept. 1, 2009) (Affirming denial)
The Notice of Filing is required to contain the information required for advertisements by section 656.17(f). 20 C.F.R. § 656.10(d)(4). Section 656.17(f)(5) provides that an advertisement must �[n]ot contain a wage rate lower than the prevailing wage rate.� But this subsection does not mean that if the actual wage offer is higher, advertisements may only list the lower prevailing wage. Rather, section 656.17(f)(7) provides that the advertisements must �[n]ot contain wages or terms and conditions of employment that are less favorable than those offered to the alien.�
In the instant case, the actual wage offer was substantially higher than the prevailing wage set by the SWA. Because the lower prevailing wage was stated in the Notice of Filing, it contained a wage less favorable than the wage offered to the Alien.
Phoenix Life Insurance Company , 2010-PER-00058 (Mar. 3, 2010) (Affirming denial)
Under the regulations the Notice of Filing must not contain wages or terms and conditions of employment that are less favorable than those offered to the alien. In the instant case, the Employer listed a wage range on its Notice of Filing that included a bottom range which was lower that the wage it offered wage to the Alien.
- Employer's Name on the NOF
Robert Venuti Landscaping , 2009-PER-453 (Oct. 27, 2010) (affirming denial of certification)
The Notice of Filing must include the name of the employer. 20 C.F.R. § 656.10(d)(4); 20 C.F.R. § 656.17(f)(1); Robert Venuti Landscaping , 2009-PER-453 (Oct. 27, 2010). In Robert Venuti Landscaping , the Board held that the hypothetical suggestion in Stone Tech , 2008-PER-187 (Jan. 5, 2008) that there are exceptions to the Notice of Filing requirements is no longer viable.
Global Cabinets LLC , 2009-PER-00364 (June 29, 2010) (affirming denial)
Employer submitted NOF that did not contain its name or job location. In its request for review, Employer stated that due to a clerical error the NOF was not included with the audit response. Employer submitted a new NOF that was facially different from the NOF it had submitted with its audit response. CO determined that the first NOF submitted by Employer was the actual deficient NOF that was used and CO disregarded the later submitted one.
The NOF is not a mere technicality. Employer did not adequately explain why it submitted a deficient NOF with its audit response.
Stone Tech Fabrication , 2008-PER-00187 (Jan. 5, 2009) (Affirming denial)
The Notice of Filing must include the Employer's name. The Employer's President's name and phone number are not an adequate substitute (absent more information about the size of the company, how well the workforce knows the President's name, or the posting location of the Notice of Filing.)
Aramark Corporation , 2008-PER-00181 (Jan. 8, 2009) (Affirming denial)
Posting a Notice of Filing that lacks the CO's address, the wage offered, any mention of the application for alien labor certification, and any statement that persons may provide documentary evidence to the CO, fails to substantially comply with the regulations at § 656.10(d).
Direct Meds, Inc. , 2009-PER-00319 (Mar. 3, 2010) (Vacating denial and granting certification)
As the Board stated in Stone Tech , in certain circumstances, the purpose of the Notice of Filing can be fully served without the name of the company on the Notice if it was nonetheless clear that the Notice applied to the petitioning employer, as for example where a the petitioner is a small company where everyone knows the owner on a first name basis. Slip op. at 4. Specifically, the Board stated, �in order to establish a compelling case for relief from the regulatory requirement that an employer's name must appear on a Notice of Filing, the Employer should have, for example, provided information about the size of the company, how well-known the listed contact name would be among the work force, and whether the place it posts notices is used exclusively for company bulletins.� Id.
In the instant case, the Employer was a small company with only 25 employees, and the Employer asserted that the President's name was well-known by the employees. The Employer also contended that the notice was posted on a segregated bulletin board reserved for legal notices and notices for the employees, and it was posted adjacent to the notice advising employees of the position as part of the employee referral program, which included the same job description and contact name and was printed on company stationary. Thus, the Board found that in these circumstances it was clear that the Notice applied to the petitioning Employer, even though the Employer's name was omitted from the Notice, and that the Employer has demonstrated a compelling case for relief.
- Failure to State That Posting Was Based on Filing of PERM Application
Microland Limited , 2010-PER-685 (Aug. 19, 2010) (per curiam)
Notice of Filing failed to state that it was "being provided as a result of the filing of an application for permanent labor certification for the relevant job opportunity." The Employer blamed its former counsel. "Poor representation is not, standing alone, sufficient reason to reopen an application."
- Location of Job Opportunity on the NOF
Alexandria Granite & Marble , 2009-PER-00373 (May 26, 2010) (affirming denial)
Employer's NOF did not contain the location of the job opportunity. Employer argued that 20 C.F.R. § 656.17(f)(4), "advertisements must indicate the geographic area . . ." deals with only the advertising requirements and not with an employer's internal NOF requirements. This argument does not hold merit. 20 C.F.R. § 656.17 clearly states that the notice "must contain the information required for advertisements by § 656.17(f) . . . ."
Posting of the NOF is not a mere technicality. The purpose of the notice requirement is to allow any person to submit documentary evidence bearing on the Employer's labor certification application. See Voodoo Contracting Corp. , 2007-PER-1 (May 21, 2007); see also Hawai'i Pacific University , 2009-PER-127 (Mar. 2, 2010)(en banc) (holding that notice/posting requirement that cannot be lightly dismissed under a harmless error finding). Notice also informs workers and other persons of the existence of the job opening in the event they would like to apply for the job.
Although the geographic location of a job opportunity may be obvious in the context of the particular Employer's business, it is not administratively feasible for CO to investigate the circumstances of each applicant's business. Therefore, if Employer fails to comply with the regulatory requirements by failing to include all of the required information on the NOF, it has the difficult burden of proving to CO that its error was inconsequential based on the circumstances. Employer did not meet its burden in the instant case.
APPIX, Inc. , 2009-PER-00411 (May 26, 2010) (affirming denial)
CO denied PERM certification due to Employer's failure to include the geographic area of employment on the NOF. The Employer cited to several sections of the Federal Register pertaining to advertisements and asserted that these sections state that "Employers need not specify the job site, unless the job site is unclear." 69 Fed. Reg. 77347 (Dec. 27, 2004). Employer further asserted that since the posting was posted at its job location, "the geographic area of employment must be quite clear to all the people who saw the posting." Employer also argued that the employment location was immediately available online and at the Human Resources Department to anyone who had seen the NOF.
With regard to Employer's citations to the Preamble to the Final Permanent Labor Certification Regulations in the Federal Register pertaining to advertisements, the Preamble only serves to assist in interpreting the final rules, and in this case the issue of including the geographic location on the NOF is specifically addressed by 20 C.F.R. §§ 656.10(d)(1) and 656.17(f)(4).
PERM is an attestation based program that can only be maintained by strictly following the letter of the law. PERM regulations were designed to favor administrative efficiency over dialogue in order to better serve the public interest overall, given the resources available to administer the program. HealthAmerica , 2006-PER-1, slip op. at 19 (July 18, 2006) (en banc). The requirements also were designed to assist the CO in processing a high volume of applications consistently and in a timely fashion in a central location.
Although the geographic location of a job opportunity may be obvious in the context of the particular Employer's business, it is not administratively feasible for CO to investigate the circumstances of each applicant's business. Therefore, if Employer fails to comply with the regulatory requirements by failing to include all of the required information on the NOF, it has the difficult burden of proving to CO that its error was inconsequential based on the circumstances. Employer did not meet its burden in the instant case.
- Posting for 10 Consecutive Business Days
Il Cortile Restaurant , 2010-PER-683 (Oct. 12, 2010) (vacating denial of certification)
For the purposes of the notice of filing requirement under 20 CFR §656.10(d)(1)(ii), a "business day" is any day that employees are working on the premises and can see the notice of filing.
Grasshopper Also Inc. , 2009-PER-00458 (Aug 6, 2010) (affirming denial)
The regulations require an employer to maintain all supporting documentation of all recruitment steps taken and all attestations made in the application for labor certification for five years. A substantial failure by an employer to provide the documentation required by the audit will result in the application being denied.
In this case, Employer's 9089 stated that Employer posted a NOF for ten business days in a conspicuous location at the place of employment. Upon CO's Audit Notification requiring NOF documentation, Employer did not submit a copy of the posted notice. Instead, Employer only submitted a statement in its recruitment report that it posted the position on the company bulletin board. This single statement does not comply with the regulations and does not document Employer's attestation that it posted a NOF for ten consecutive business days.
Franco's Construction , 2008-PER-00128 (Jan. 6, 2009) (Affirming denial)
There is no on-the-job-hire exception to the recruitment requirements of § 656.17(e)(2). The employer must still place a job order and two newspaper advertisements.
- Timing of the SWA Job Order
Blue Ribbon Bakery & Cafe , 2009-PER-00369 (July 13, 2010) (affirming denial)
Employer filed the labor certification application 198 days after the last date of the job order, thereby failing the 180 day requirement found in 20 C.F.R. § 656.17(e)(2). Employer likewise failed the 180 day requirement for posting the newspaper advertisements.
Employer contended that confusion resulted when the SWA mistakenly sent the Employer a Prevailing Wage Report for a different employer because of a similarity in names. The Employer also contended that a similar confusion about the business name at the newspaper used for recruitment created a misunderstanding which resulted in delay.
Employer argued both that the SWA's previous error and a USCIS change in policy regarding the length of job orders excuses the stale filing. This argument is unpersuasive because Employer had ample time, after the SWA corrected its mistake, to file the application. The argument concerning a change in policy by USCIS was not before the CO when the denial determination was made, and therefore cannot be considered by the Board on appeal.
Luyon Corp. , 2007-PER-00027 (June 12, 2007) (Affirming denial)
Submitting an application only 3 days after the end date of a SWA job order does not constitute a harmless clerical error. Instead, it constitutes a substantive violation of § 656.17(e)(1)(i).
Golden Bridge Restaurant LLC , 2007-PER-00099 (Dec. 18, 2007) (Affirming denial)
The purpose of requiring that the SWA job order be completed at least 30 days before the filing of the application is to ensure that the employer has sufficient time to receive resumes, contact and interview applicants, and make decisions regarding U.S. applicants responding to the job order.
The Panel held that filing the application prior to 30 days after the end of the SWA job order is a substantive violation of the regulation at § 656.17(e)(1)(i), and the fact that the job order did not produce qualified candidates after the 30 day period does not excuse the violation of filing the application too early.
Performance Improvement for Industry, Inc. , 2007-PER-00028 (June 12, 2007) (Affirming denial)
Placing a new SWA job order after certification denial by the CO does not cure the error of a job order lasting less than 30 days. The new job order can only support a subsequent filing, as it will not have been placed at least 30 days prior to filing the application.
Syncsort Inc. , 2007-PER-00067 (Dec. 18, 2007) (Affirming denial)
The Employer's violation of § 656.17(e) in filing its application less than 30 days after the end of its SWA job order placement was not cured by the fact that 30 days had passed by the time the Employer requested review.
Ameyovi J. Oyassan , 2007-PER-00068 (Dec. 17, 2007) (Affirming denial)
An employer must file its application at least 30 days, but no more than 180 days, after the end date of its SWA job order, not the start date of the job order.
Dr. Afshin Abdollahi, DMD, Inc. , 2008-PER-00009 (Dec. 19, 2007) (Affirming denial)
Where an employer fails to enter the start and end dates of a SWA job order on its application, certification must be denied.
Maria's Home for the Aged , 2009-PER-00179 (July 13, 2009) (Affirming denial)
It is the employer's responsibility to ensure that it complied with the filing requirements of the job order stated in 20 C.F.R. § 656.17(e). The employer cannot be excused from this violation by blaming its non-compliance on the SWA, even if it was true that a SWA employee informed it that the application could be filed any time after the job order was posted.
Art O Frame , 2009-PER-00150 (June 30, 2009) (Affirming denial)
It is the employer's responsibility to file its PERM application within the filing time period required under 20 C.F.R. § 656.17(e). The Employer's difficultly in registering for the online PERM system does not excuse its failure to file on time, as it could have preserved the timeliness of its recruitment by filing its application by mail.
Lam Garden Chinese Restaurant , 2008-PER-00014 (Dec. 17, 2007) (Reversing denial and granting certification)
The Employer requested the placement of a 30-day job order from the SWA. The SWA ran the placement for the month of February, resulting in a job order lasting only 29 days. BALCA held that the CO need not have focused exclusively on the start and end dates; nothing in the PERM regulations limits the CO's discretion to take into account errors that may have been the SWA's fault and not the Employer's. Under these precise facts, the CO's denial constituted an abuse of discretion.
- Wage Offer on the SWA Job Order
Red Apple Child Development Center , 2009-PER-00472 (June 29, 2010) (affirming denial)
Employer's ETA Form 9089 included a prevailing wage of $47,237. However, on its job order Employer listed a wage range of $35,152 to $47,237. This is a clear violation of regulations, which require the Employer to offer a wage rate of at least the prevailing wage. The Preamble to the Final Rule for labor certifications states that the employer may include a salary range as long as the bottom of the wage range is no less than the prevailing wage rate. 69 Fed. Reg. 77348 (December 27, 2004).
Employer argued that it was advertising for two job opportunities in its job order: a Head Teacher and a Group Teacher, and that the wage range related to the two titles. However, this is not clear from the job order. The job order states that the job title is "Teachers (Head or Group)," then for the salary range it lists $35,152 to $47,237. It is not obvious that the lower range is for a Group Teacher and the higher range is for a Head Teacher. The salary range could be interpreted in several ways, including that the salary is negotiable. Moreover, the occupation title listed on the job order of "Teachers (Head or Group)" is inconsistent with the title listed on the ETA Form 9089 of "Head Teacher."
Jesus Covenant Church , 2008-PER-00200 (Sept. 14, 2009) (Reversing denial)
In Jesus Covenant Church , 2008-PER-200 (Sept. 14, 2009), the Employer listed the offered wage as $16.48 per hour on the Form 9089. The SWA prevailing wage determination was $16.20 per hour. The SWA job order listed the salary as $16.20 per hour and indicated that the salary was not negotiable. The CO denied certification based on 20 C.F.R. §§ 656.10(c)(8) and 656.17(f)(7). The panel noted that section 656.17(f) does not specifically address requirements for SWA job orders, and turned its attention instead to the CO's conclusion under 20 C.F.R. §§ 656.10(c) and 656.10(c)(8) that the Employer's use of the prevailing wage on the SWA job order rather than the higher wage paid to the Alien constituted a failure to advertise the job in a manner reflecting the attestation that the job opportunity is clearly open to any U.S. worker. The panel declined to affirm the denial of certification, finding that the Employer's mistake did not lead to the conclusion that the job opportunity was not clearly open to any U.S. worker. The panel stated that the decision was to limited to the precise circumstances of that particular case. One member of the panel dissented, noting that while the Employer's error had only involved a few cents, hard cases make bad law. The dissent would have found that advertising the job on the SWA job order at a wage lower than that offered to the Alien violated the requirement of section 656.10(c)(8) that the job opportunity be clearly open to the U.S. worker.
MK Enterprise Group , 2007-PER-00019 (May 16, 2007) (Affirming denial)
A weekly newspaper distributed only in Queens does not constitute a paper of general circulation for a New York City employment opportunity.
Virginia General Services , 2007-PER-00022 (Apr. 24, 2007) (Affirming denial)
Running ads in a newspaper's Friday edition that is available on newsstands throughout the weekend does not satisfy the Sunday-edition publication requirement of § 656.17(e). Likewise, running an advertisement for a full week does not satisfy the Sunday requirement.
Dunkin Donuts , 2008-PER-00135 (Jan. 5, 2009) (Affirming denial)
The regulation at 20 C.F.R. 656.17(f)(1) requires that the newspaper advertisement supporting a labor certification application identify the employer. The employer's name allows potential applicants to identify the employer, and applicants will be able to better determine if they wish to apply for the advertised position. Applicants also may be unwilling to submit resumes to a blind advertisement, as they can not tell who will receive their resume.
The Employer's argument that applications would not be misplaced because the fax number provided in its newspaper advertisements ensured the receipt of applications directly by the Employer's owner did not address the reason for inclusion of the Employer's name in the advertisement � to let applicants know what company is offering the job.
Parkside Construction Contractors, Inc. , 2009-PER-00016 (Jan. 9, 2009) (Affirming denial)
The regulation at 20 C.F.R. 656.17(f)(1) requires that the newspaper advertisement supporting a labor certification application identify the employer by name. Including the Employer's location and fax number is not an acceptable substitute.
The Center For Pan Asian Community Services, Inc. , 2009-PER-00352 (Aug. 31, 2009) (Affirming Denial)
The regulation at 20 C.F.R. § 656.17(f)(4) provides that newspaper advertisements must indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity. Including a fax number with a local area code in the advertisement is not sufficient.
Noll Pallet & Lumber Co , 2009-PER-00082 (Dec. 16, 2009) (Affirming Denial)
The regulations at 20 C.F.R. § 656.17(f)(7) state that advertisements placed in newspapers of general circulation or in professional journals must �not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.� In this case, the advertisements contained a requirement for criminal and background checks, which were not listed on Form ETA 9089.
Xpedite Technologies, Inc. , 2010-PER-00100 (Apr. 7, 2010) (Affirming denial)
The regulations at 20 C.F.R. § 656.17(f)(7) state that advertisements placed in newspapers of general circulation or in professional journals must �not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.� In the instant case, the application was denied because the newspaper advertisements contained a requirement for travel, which was not listed on Form ETA 9089.
Control Contractors , 2007-PER-00031 (June 12, 2007) (Affirming denial)
Advertising on a Web site cannot substitute for the mandatory newspaper or professional journal print advertisements.
Credit Suisse Securities (USA) Ltd. , 2010-PER-103 (Oct. 19, 2010) (affirming denial of certification)
All advertisements placed in fulfillment of additional recruitment steps for professional positions must comply with the 20 CFR §656.17(f) content requirements.
Trans Atlantic Systems, Inc. , 2009-PER-00414 (May 26, 2010) (affirming denial)
Employer failed to provide adequate documentation of its own Web site posting and its posting on a job search Web site. Employer merely offered the signed recruitment report as evidence that it fulfilled the requirements. Under the regulations for additional recruitment steps to advertise a professional occupation, an employer can document these steps by providing dated copies of pages from the site that advertises the occupation.
Standing alone, the signed recruitment report does not provide adequate documentation that Employer placed an advertisement on its Web site or on a job search Web site. See Carlos Uy III , 1997-INA-304 (Mar. 3, 1999) (en banc) (Bare assertions without supporting reasoning or evidence are generally insufficient to carry an employer's burden of proof). Under the audit regulation at 20 C.F.R. § 656.20(b), a substantial failure by the employer to provide required documentation will result in that application being denied.
Living Earth Landscape Design, LLC , 2009-PER-00480 (Apr. 15, 2010) (Affirming denial)
The OFLC Web site includes a response to a FAQ, stating that if an employer does not have a copy of the posting from its Web site, �the employer may provide an affidavit from the official within the employer's organization responsible for the posting of such occupations on the web site attesting, under penalty of perjury, to the posting of the job.� In this case, the Board found that a signed statement from a supervisor was not adequate, as there was no indication that this supervisor was an official who is responsible for posting the advertisement on the Employer's Web site.
Despite the Employer's contention that it is unreasonable and unduly burdensome for the CO to require it to produce documentation of the job posting that was on its Web site two years ago, the regulations clearly require the Employer to maintain all documentation in support of its labor certification application for five years after the date of filing. 20 C.F.R. § 656.10(f).
PSI Family Services, Inc. , 2010-PER-00097 (Apr. 16, 2010) (Affirming denial)
If an employer does not have a copy of the posting from its Web site, a FAQ from OFLC's Web site states that it may be acceptable to �provide an affidavit from the official within the employer's organization responsible for the posting of such occupations on the web site attesting to the posting of the job.� However, there is no guarantee that the CO will find such a submission to be adequate documentation of the posting on the Web site.
In the instant case, the Board found that the documentation provided by the Employer, which included the attorney's cover letter stating the dates of posting, a reference by the Employer's Vice President for Human Resources in the recruitment report to the dates of the posting, and an undated document showing a listing of open positions for the Employer's organization, (with the Employer's Web site address at the bottom of each page,) were not adequate. The Board stated that since the statements did not indicate that the attorney or the HR Vice President was the official within the employer's organization responsible for the posting of such occupations on the Web site, the documentation did not establish the dates of posting in the affidavit format specified by the OFLC FAQ.
Edgenet, Inc. , 2010-PER-00003 (July 12, 2010) (affirming denial)
CO denied the application because Employer failed to provide adequate documentation of an additional recruitment step, as outlined in 20 C.F.R. § 656.17(e), by failing to provide documentation of the job advertisement placed on a Web site other than its own. The documentation submitted by Employer was not an advertisement; it was merely a cached results list from a Google search, and it provided no description of the position.
The search results list does not provide any means for the CO to verify that the advertisement contained the same job description, duties, qualification requirements, wage, or any other terms of employment as the position in the Employer's application.
Care Systems, Inc. , 2009-PER-0004 (Apr. 15, 2010) (Affirming denial)
One of the additional recruitment steps an employer can utilize to advertise a professional occupation is to advertise the position on a Web site other than its own. The regulation at 20 C.F.R. § 656.17(e)(1)(ii)(C), provides, that the use of such Web site can be documented by providing dated copies of pages from the Web site.
Here, the Employer did not submit dated copies of the advertisement posted on Craigslist.com, but only provided a letter from its Chief Financial Officer stating that the Employer posted the position on the Web site. Although a response to a FAQ on OFLC's Web site (regarding evidence of advertising on the employer's Web site,) indicates that an employer may provide an affidavit from the official within the employer's organization responsible for the posting of such occupations on the web site, in this case, there is nothing to indicate that the Employer's CFO was responsible for posting the job on Craigslist.com, nor was the CFO's statement in the form of an affidavit.
Ove Arup & Partners Consulting Engineers, PC , 2010-PER-00013 (July 20, 2010) (affirming denial)
One of the three additional recruitment steps that Employer took to advertise its position was to use its employee referral program with incentives. However, Employer failed to adequately document its employee referral program because Employer did not submit any documentation of the specific incentives of the program and because there is no documentation of the dates that Employer advertised the referral program.
Employer's defense that the regulations do not provide enough guidance regarding what constitutes adequate documentation of this recruitment step is unavailing. While the Employer correctly points out that the regulations state that documentation of the employee referral program "can" (as opposed to "shall") be provided by dated copies of employer notices or memoranda advertising the program and specifying the incentives offered, the regulation certainly notifies employers that the specifics of the program's incentives, and the dates that the program was advertised, are elements of adequate documentation.
Clearstream Banking S.A. , 2009-PER-000015 (Mar. 30, 2010) (Reversing denial and granting certification)
An employer which chooses to use an employee referral program with incentives as one of its professional recruitment steps, can document this step �by providing dated copies of the employer notices or memoranda advertising the program and specifying the incentives offered.� 20 C.F.R. § 656.17(e)(1)(ii)(G). Thus, a generic employee referral program with incentives, the description of which is available to employees, may be sufficient to be a step under this regulation, even if the particular job for which labor certification is being sought is not individually promoted under the program.
Appendix A Professional Occupations
Perrault Landscape Contracting, LLC , 2007-PER-00008 (Apr. 6, 2007) (Affirming denial)
When an occupation appears in the Appendix A list of professional occupations, § 656.17(e) requires the employer to recruit using the professional recruitment standard, regardless of whether the employer has required a bachelor's degree for its particular position.
EPI Limited Partnership , 2008-PER-00004 (Apr. 28, 2008) (Affirming denial)
Where a position is listed on Appendix A, it is considered to be a professional occupation, and the regulatory history of the PERM regulations indicates that an employer cannot avoid classifying a position as an Appendix A professional occupation on the ground that it is not requiring that the applicant have a bachelor's or higher degree. Appendix A of the Preamble to 20 C.F.R. Part 656 provides an extensive list of professional occupations, which are defined as "occupation[s] for which the attainment of a bachelor's or higher degree is a usual educational requirement." 20 C.F.R. § 656.3.
A One Auto Center , 2008-PER-00043 (June 17, 2008) (Affirming denial)
While the Appendix A list of professional occupations is made up of jobs customarily associated with the attainment of a bachelor's or higher degree, that education level is not a prerequisite to inclusion on Appendix A and therefore a requirement to recruit using the regulatory standards for professional. The regulatory history makes it clear that the designation of professional occupations on Appendix A is not limited to those requiring a bachelor's degree or higher but may include professionals who qualify by virtue of work experience rather than an educational degree. 69 Fed. Reg. at 77345-46.
Kintop Pictures , 2008-PER-00100 (Apr. 1, 2009) (Affirming denial)
If the employer wishes to dispute an occupational code, it must request review within 30 days of the date of determination by the SWA. Where the employer fails to challenge the classification of an occupation and then fails to conduct the recruitment steps required for a professional occupation, labor certification must be denied.
American Sona Mortgage , 2008-PER-00096 (Apr. 1, 2009) (Affirming denial)
The fact that the Employer is seeking an "Assistant" Creditor rather than a Creditor does not, in itself, make the Assistant Creditor a non-professional position. The Employer is still required to recruit for the position under the regulatory criteria found at 20 C.F.R. § 656.17(e)(1)(i) for a professional position.
Virginia Carolina Construction , 2009-PER-00416 (June 29, 2010) (affirming denial)
The application required 6 months of training as a certified welder, but the application did not show that the Alien had this training. Employer responded that the alien had 13 years of experience in industrial welding. Employer insisted that the alien met every requirement of the posting, including that of a certified welder, with his years of experience and references.
Although Employer indicated in its request for review that the foreign worker was a certified welder and had 13 years of welding experience, it did not submit any evidence to support its claim that the worker was certified. See Matter of Wings Wildlife Productions, Inc. 1990-INA-69 (Apr. 23, 1991) ("An employer's conclusory statement that the alien meets its minimum requirements does not constitute adequate documentation that the alien does meet those requirements.").
W. Pearl Construction, Inc. , 2009-PER-00427 (May 26, 2010) (affirming denial)
Employer required that the applicant have at least 24 months of prior experience in the position of "Painter, Construction and Maintenance." The SVP level assigned to this occupation permits a maximum of total lapsed time of preparation up to and including 1 year. In order to require two years of preparation for the job opportunity, the employer must establish business necessity.
Under the O*NET description, "Painter, Construction and Maintenance" would require essentially the same skills that Employer contends would require two years of experience to perform satisfactorily. Without providing supporting evidence, Employer asserted that "it has been [Employer's] experience that the duties of [Employer's] Painters . . . could be achieved only through, at least, two years of experience." This generalized assertion invites reliance on facts that are outside of the record and fails to demonstrate how Employer's requirements are essential to perform the job in a reasonable manner, as is required for business necessity. See Carlos Uy III, 1997-INA-304 (Mar. 3, 1999) (en banc) (A bare assertion without either supporting reasoning or evidence is generally insufficient to carry an employer's burden of proof). See also Aquarius Enterprises , 1987-INA-579 (Mar. 24, 1988) (en banc) (the employer's statement that he had found it essential for a press operator to have more experience than established by the SVP was not, standing alone, sufficient to establish business necessity).
Rajpoot Mehfil, Inc. , 2010-PER-00320 (June 1, 2010) (affirming denial)
Employer failed to establish the business necessity of a three-year minimum experience requirement that exceeded the SVP level. Although Employer did establish the first part of the business necessity test � that the three-year experience requirement had a reasonable relationship to the occupation�it failed the second part of the test � whether the three-year experience requirement is essential to perform in a reasonable manner the job of Chef � Pakistani Cuisine.
Employer asserted that the job responsibilities were not entry level but rather more similar to "executive chef" and submitted examples from various job Web sites of executive chef positions requesting more than two years experience. "But such documentation does not explain why three years of experience, rather than the two years specified by the O*Net, is essential to perform the duties of Chef � Pakistani Cuisine in a reasonable manner.
Michelle Guervarra Pena PLLC , 2007-PER-00116 (June 4, 2008) (Affirming denial)
Because the Alien's qualifications listed in Section J of ETA Form 9089 did not meet the minimal requirements listed by the Employer on the form, the CO correctly concluded that the Alien did not meet the Employer's actual minimum requirements, as required by § 656.17(i).
Palomino Service , 2009-PER-00068 (Nov. 2, 2009) (Affirming denial)
The instructions to Form 9089 direct employers to list all jobs held by the alien in the past three years as well as all other experiences that qualify the alien for the job opportunity. Here, the Form 9089 submitted by the Employer failed to list any employment by the Alien other than his employment with the petitioning Employer.
Your Employment Service Inc. , 2009-PER-00151 (Oct. 30, 2009) (Affirming denial)
As part of the recruitment process, the job requirements must represent the employer's actual minimum requirements for the job opportunity and the employer must not have hired workers with less training or experience for the job opportunity. 20 C.F.R. § 656.17(i)(1) and (i)(2).
If the alien gained qualifying experience in a position with the employer, the employer must submit documentation to show that the jobs were not substantially comparable. The documentation must show that the job in which the qualifying experience was gained did not require performance of the same job duties as the job for which labor certification was sought more than 50 percent of the time, and/or that it is no longer feasible to train a worker to qualify for the position. Acceptable documentation includes position descriptions, the percentage of time spent on the various duties, organizational charts, and payroll records. In this case, the Employer did not produce sufficient documentation to show the jobs were not substantially comparable.
Globalnet Management L.C. , 2009-PER-00110 (Aug. 6, 2009) (Affirming denial)
In 20 C.F.R. § 656.3, the PERM regulations outline minimum and maximum experience requirements for positions of different levels under the specific vocational preparation (SVP) definition. Field Memorandum No. 48-94 (May 16, 1994) expands on the SVP requirements and offers guidance in determining the appropriate SVP level based on the required experience and level of education. The SVP levels help to ensure that the job requirements are tailored to the position rather than to the alien the employer is seeking to hire. In this case, the requirement of 14 years of experience significantly restricts the applicant pool and contravenes the SVP requirement.
Valentino's Pizza and Restaurant , 2009-PER-00051 (Oct. 30, 2009) (Affirming denial)
The instructions to ETA Form 9089 at Appendix B regarding the training requirement in Section H-5 advise employers not to duplicate the time requirements listed in education or experience in the training requirement. In this case, the Employer required 12 months of training and 12 months of experience, thus requiring 24 months of training and experience, which the Alien did not have.
Duracraft of Georgia , 2008-PER-00149 (Feb. 25, 2009) (Affirming denial)
When an Employer lists a job title and job duties to include supervision, requiring "two years of experience in the job offered," this includes requiring two years of supervisory experience. In the instant case, the Employer required two years of experience in the job offered, for the job of "Construction Supervisor, Carpenter." The Alien possessed two years of experience in construction and carpentry, but none as a supervisor. Thus, the CO properly denied certification on the grounds that the Alien did not meet the Employer's actual minimum requirements.
Date Applicant Completed Relevant Education
Classy Dyeing & Finishing , 2007-PER-00013 (May 21, 2007) (Affirming denial)
Item J-13 (year the Alien completed relevant education) inquires into the applicant's qualifications, specifically the year in which he or she completed the educational requirements for the job opportunity. An answer is required to determine whether the Alien has the required education and therefore meets the Employer's minimum requirements. 20 C.F.R. § 656.17(i)(1). Not providing a date in this section is grounds for denying certification.
Spectrum Foods , 2007-PER-00037 (June 27, 2007) (Affirming denial)
Item J-13 refers to the calendar year in which the Alien completed any relevant education, not the school year (i.e. grade level) in which the Alien achieved the education. (E.g., "7th grade" is an unacceptable answer to Item J-13.)
Alternative Experience Requirements
Agma Systems LLC , 2009-PER-132 (Aug. 6, 2009) (reversing denial)
The Kellogg language requirement is not applicable in this case. A Master's Degree in Computer Science or Engineering and three years of experience in Computer Software Developing and/or Consulting � and a Bachelor's Degree in Computer Science or Engineering and five years of experience in Computer Software Developing and/or Consulting � are substantially equivalent requirements. In this instance, the Employer does not have a "primary" requirement. Rather, it has two sets of requirements that are essentially the same. Because there is no "primary" requirement, section 656.17(h)(4) is not invoked.
See also Agma Systems LLC , 2009-PER-132 (Nov. 6, 2009) (denying CO's request for clarification) (concurring opinion of Chief Judge Vittone stating that although the decision was correct based on the facts and arguments before it at the time it rendered its decision, "I note that the concern raised by the CO in the request for clarification --that the panel decision might be interpreted as permitting applicants to submit multiple sets of primary requirements rather than a primary and alternative set of job requirements in contravention of the intent of the regulation at 20 C.F.R. § 656.17(h)(4) � raises a potentially significant issue.").
St Mobile Aerospace Engineering Co., Inc. , 2009-PER-00429 (July 9, 2010) (affirming denial)
Employer's primary requirements for an Aerospace Engineer position were a Bachelor's degree and no experience. Alternatively, Employer indicated that the applicant could have 12 years of experience and no degree. Applying the PERM regulations and the SVP guidelines set out in the Field Memorandum, the alternative requirement of 12 years of experience for an Aerospace Engineer position is not substantially equivalent to the primary requirement for a Bachelor's degree. Section 8 of the guidelines specifically states that a Bachelor's degree is equivalent to 2 years of experience.
Demos Consulting Group , 2007-PER-00020 (May 16, 2007)(Affirming denial)
If an Alien only qualifies for a position based on alternative experience requirements, then § 656.17(h)(4)(ii) requires the Employer to state that any suitable combination of education, training, or experience is acceptable. See Francis Kellogg , 1994-INA-465 (Feb. 2, 1998).
Federal Insurance Co. , 2008-PER-00037 (Feb. 20, 2009)(Vacating denial vacated and granting certification)
Because there is no reasonable place to write the required Kellogg language on ETA Form 9089, the Board found that the CO could not deny the Employer certification on the ground that it did not include the actual Kellogg language on its application, especially where the Employer sufficiently indicated that it was willing to accept any suitable combination of education, training, or experience, as required by § 656.17(h)(4)(ii). To deny certification on such a ground would offend fundamental due process.
Alpine Store , 2007-PER-00040 (June 27, 2007) (Affirming denial)
Neglecting to provide an answer to Item H-8 on Form 9089, for the Employer's alternative education or experience requirements, is not a "slight error," and the CO's denial of the application is proper.
Misha Carpet Corporation , 2008-PER-00143 (Jan. 6, 2009) (Affirming denial)
A CO is not obligated to grant an Employer's request to amend its application to delete an unduly restrictive job requirement during an audit. Section 656.20(d) empowers a CO to do so at his or her discretion, but opting not to permit an amendment does not constitute reversible error.
Marlenny's Haircutters , 2009-PER-00013 (Jan. 29, 2009) (Affirming denial)
Failure to provide a recruitment report requested by the CO under the audit procedures and section 656.20(b) is clearly a substantial failure to provide required documentation. Without a report, the CO could not determine whether the recruitment complied with the regulations or whether U.S. workers were rejected for lawful job related reasons.
Mildred Schwartz , 2008-PER-00115 (Oct. 28, 2008) (Dismissing appeal)
Although the focus of the CO's Audit Notification letter was the live-in nature of the application, it clearly and specifically directed the Employer to submit its Recruitment Report pursuant to § 656.17(g). Finding the Employer failed to timely submit the recruitment report as directed in the Audit Notification letter, BALCA found that it had no authority to further review the denial.
D & M Leasing Inc. , 2009-PER-00345 (Sept. 1, 2009) (Affirming denial)
An employer must be prepared to provide documentation to show that the published advertisements met all of the regulatory requirements. Acceptable documentation, according to the regulations, would be copies of the newspaper pages in which the advertisements appeared or proof of publication furnished by the newspaper. 20 C.F.R. § 656.17(e)(2)(C) (cross-referencing 20 C.F.R. § 656.17(e)(1)(i)(B)(3)); 20 C.F.R. § 656.17(detailing required elements of advertisements).
In this case, the documentation supplied by the Employer in response to the audit notification only indicated that the Employer had written a letter and a check for the purpose of initiating classified newspaper advertisements. It did not establish that the newspaper advertisements were actually run on the dates specified or whether the text of what was published met the regulatory requirements.
Natural Nature, Inc. , 2009-PER-00337 (Mar. 30, 2010) (Affirming denial)
Applicants are on notice that they must maintain supporting documentation when applying for labor certification. An employer that fails to gather and preserve the documentation contemporaneous with the filing of the application is gambling that it will be able to timely produce the documentation if the CO audits the application. In this case, although the Employer was ultimately able to obtain documentation of the newspaper advertisements, its failure to do so timely required a denial of the application.
Business Necessity of a Foreign Language
Misha Carpet Corporation , 2008-PER-00143 (Jan. 6, 2009) (Affirming denial)
Even when an Employer wishes to amend its application to remove a foreign language job requirement, if it rejected applicants based on an inability to speak the language, it is obligated to establish the business necessity for the requirement. When, during audit, an Employer chooses to request an amendment to its application, removing the language requirement, instead of providing evidence of business necessity, the Employer forfeits its opportunity to present such evidence. Evidence of business necessity offered for the first time during appeal is not timely and cannot be considered.
Los Angeles Center of Commerce , 2008-PER-00167 (Feb. 25, 2009) (Affirming denial)
An Employer's showing that 40% of its customers are foreigners or foreign-owned businesses fails to satisfy the business necessity requirements of § 656.17(h)(2)(ii)(b), which mandates that "a large majority" of customers "cannot communicate in English."
Employer is a Closely Held Corporation
Good Deal, Inc. , 2009-PER-00309 (Mar. 3, 2010) (Affirming denial)
Under 20 C.F.R. § 656.17(l), if the employer is a closely held corporation or partnership in which the alien has an ownership interest, the employer in the event of an audit must be able to demonstrate the existence of a bona fide job opportunity, i.e., the job is available to all U.S. workers�.� In Modular Container Systems, Inc. , 1989-INA-228 (July 16, 1991) (en banc), the Board held that the question of whether a bona fide job opportunity exists turns on an examination of the totality of circumstances and listed a number of factors to examine.
The Employer carries the burden of showing that it has a bona fide job opportunity that is open to all U.S. workers, which it can overcome if it can establish genuine independence and vitality not dependent on the alien's financial contribution or other contribution indicating self-employment. In this case, the Employer did not meet its burden of overcoming the presumption that the Alien has influence and control over the job opportunity.
Your Employment Service Inc. , 2009-PER-00151 (Oct. 30, 2009) (Affirming denial)
The burden of proof to establish eligibility for a labor certification is on the petitioning employer. 8 U.S.C. � 1361; 20 C.F.R. § 656.2(b). The Board has long held that a bare assertion without either supporting reasoning or evidence is generally insufficient to carry an employer's burden of proof. See Carlos Uy III , 1997-INA-304 (Mar. 3, 1999) (en banc). Here, the Employer's assertion that the jobs at issue were not substantially comparable was clearly inadequate, standing alone, to carry the Employer's burden of proof.
Yosef, Inc. , 2009-PER-00296 (Feb. 3, 2010) (Affirming denial)
If an employer uses a private employment firm or placement agency, it must provide documentation sufficient to demonstrate that recruitment has been conducted. 20 C.F.R. § 656.17(e)(ii)(F). For example, this might consist of copies of contracts between the employer and the private employment firm and copies of advertisements placed by the private employment firm for the occupation involved in the application.
An unsigned, undated, unaddressed letter requesting recruitment for thirty days, a certified mail receipt addressed to a private employment firm and a firm Yellow Pages advertisement that advertises the areas where it conducts recruitment is not sufficient documentation under the regulations.
Fundamental Fairness and Due Process
Harper Construction , 2009-PER-00180 (Aug. 6, 2010) (per curiam) (vacating denial)
Employers filed pre-PERM ETA Forms 750 in April 2001. In July 2006, Employers filed ETA Forms 9089 under the PERM regulations for the same Aliens for the same positions, noting that they were seeking to utilize the April 2001 filing dates from the previous ETA Forms 750.
Under 20 C.F.R. § 656.17(d)(3), a copy of the original application, including amendments, must be sent to the appropriate ETA application processing center when requested by the CO in an audit notification. However, "it would violate the principles of fundamental fairness to deny Employers their prior filing dates based on information that is unknown despite the fact that Employers made reasonable, although ineffective, attempts to obtain it."
In two of the three cases here, Employers notified the CO of their problems securing copies of the original filings and provided proof that they had made a reasonable effort to locate them at the Dallas Backlog Elimination Center (BEC). "In light of the problems an employer faces when it seeks to locate its original application, it would be proper in this situation for the Employer to request that the CO seek the original filing because the CO is better equipped to navigate the administrative channels of the BEC."
HealthAmerica , 2006-PER-00001 (July 18, 2006) (en banc) (Vacating denial)
The Board held that the CO should have reconsidered the denial of a PERM application based on a pro forma computer check indicating that the Employer had not complied with the two-Sunday publication rule where newspaper tear sheets conclusively established that the apparent violation was merely an unintentional typographical error on the Form 9089. The Board held that fundamental fairness and procedural due process compelled vacating the denial based on the purported violation of the publication rule.
Subhashini Software Solutions , 2007-PER-00043 (Dec. 18, 2007) (Reversing denial)
If an Employer resubmits its Form 9089 due to a cosmetic deficiency not required by the regulations, such as missing the DOL logo, the CO should process the application as if filed when first received, using the timestamp on the original application. In this case, the Board found that a denial of reconsideration would be an injustice and would not satisfy the requirements of due process. It held that fundamental fairness mandated that the Employer be permitted to have the applications processed as if they were filed when first received by the CO, and therefore to preserve the timeliness of its recruitment efforts under 20 C.F.R. § 656.17(e).
Federal Insurance Co. , 2008-PER-00037 (Feb. 20, 2009) (Vacating denial and granting certification)
Because the ETA Form 9089 provides no reasonable place to write the required Kellogg language, and offers an Employer no instructions on how to do so, denying certification on those grounds offends fundamental due process. In this case, the Employer sufficiently indicated that it was willing to accept any suitable combination of education, training, or experience, as required by § 656.17(h)(4)(ii), in spite of the fact that it did not include the Kellogg language on its application.
Medical Gases, Inc., 2008-PER-00239 (May 7, 2009) (Vacating denial)
It is unfair to deny reconsideration based on the Employer's failure to document an exception concerning actual minimum requirements under § 656.17(i)(3), when the argument was presented as a request for an opportunity to do so.
In this case, the Employer filed a "Request for Review," and not a motion for reconsideration. The request was clearly based on a request that BALCA remand the matter for the CO to reconsider whether one of the regulatory exceptions applied because of a procedural defect in the processing of the case, and was not an attempt to document the substance of the exception.
Ornelas, Inc. , 2009-PER-00246 (June 23, 2009) (Vacating denial)
Because the Employer did not have an opportunity to supplement the record in response to the CO's letter of reconsideration, (and it was not implicit that the original problem with verification of the Employer's bona fides as a business entity was the failure to provide a valid FEIN,) the Panel concluded that fundamental fairness dictated that it return the matter to the CO to provide the Employer an opportunity to clear up the inconsistency between the FEIN used on the current application and the FEIN used in the prior approved application.
Geoffrey Allen Corp. , 2008-PER-00234 (May 7, 2009) (Affirming denial)
The failure of the Employer to complete the work history of the Alien sufficiently to establish compliance with § 656.17(i), was too fundamental an error in draftsmanship to compel reconsideration of the denial. Further, the Panel may not consider an H-1B petition and accompanying LCA application as evidence in an appeal to a PERM certification.
Ralph Basile Construction , 2009-PER-00092 (Mar. 17, 2009) (Affirming denial)
In this case the Employer presented a FEIN in its documentation in support of its request for review that was different from the FEIN in its original application. However, the Employer provided evidence that fully explained why the FEINs were different and confirmed that the Employer was a bona fide entity. Since the application had been denied solely on the ground that the CO was unable to verify the Employer possessed a valid FEIN, the Panel found that consideration of the new evidence was necessary to prevent an unjust result.
Wangs Ming Garden, Inc. , 2008-PER-00065 (Aug. 28, 2008) (Affirming denial)
istakenly filing the application with the wrong office under defunct regulations does not present a compelling case for the application of equitable relief.
Prevailing Wage Determination ("PWD")
J & R Technical Services , 2010-PER-00074 (July 20, 2010) (affirming denial)
CO properly denied Employer's application for labor certification, because the Prevailing Wage Determination listed in Employer's application was for a different job category than the job listed in the labor application. Both the regulations and the Office of Foreign Labor Certification ("OFLC") website give employers notice that they are responsible for ensuring the accuracy of the prevailing wage determination.
Kings Garden 1 Chinese Restaurant Inc. , 2008-PER-228 (April 13, 2009) (affirming denial)
Instead, of providing a PWD issued by the SWA, Employer provided a print out from the FLC Wage Data Center Online Wage Library. Although it is possible that the SWA would have come up with the same wage determination as the Employer did on the FLC Wage Data Center, under the PERM regulations the Employer is not permitted to avoid the SWA in obtaining a PWD.
Reed Elsevier Inc. , 2008-PER-201 (April 13, 2009) (modifying prevailing wage determination)
The SWA � and by extension, the CO � failed to follow the procedures enumerated in the ay 9, 2005, Guidance Letter when making the prevailing wage determination. In this case, the analogy between a master's degree and four SVP years is inapposite. SVP is the amount of time required by a typical worker to learn the techniques and develop the skill set required for average performance in a specific job. The Guidance Letter indicates that an SWA should view SVP as specific, vocation-based training . Here, the Employer is not requiring a vocation-specific degree.
The experience and education requirements were improperly commingled. Accordingly, the prevailing wage should have been classified at wage level 2, rather than 4.
David W. Jackson 2008-PER-00192 (Apr. 9, 2009) (Affirming denial)
The PERM regulations provide that "[t]he employer must request a prevailing wage determination from the SWA having jurisdiction over the proposed area of intended employment. The SWA must enter its wage determination on the form it uses and return the form with its endorsement to the employer." 20 C.F.R. § 656.24(a).
The Employer's argument that it used its own survey information because the SWA failed to respond to its request for a prevailing wage determination is not a valid excuse for the Employer's failure to follow the regulations. If the Employer intends to use its own survey, it must submit it to the SWA for a determination of its adequacy.
A Fresh Perspective, Inc. , 2008-PER-00203 (Mar. 31, 2009) (Affirming denial)
Under § 656.40, an employer must request a prevailing wage determination from the SWA having jurisdiction over the proposed area of intended employment. Without documentation explaining the reason for submitting a PWD from the wrong state, the application cannot be certified.
Heung K. Choe , 2008-PER-00145 (Jan. 5, 2009) (Affirming denial)
Entering only a year, and not a specific date, in answer to Section F-8 (expiration date of the validity period of the prevailing wage determination), does not satisfy the regulations. An entire year is too imprecise to permit the CO to assess whether the Employer's prevailing wage determination was valid within the time parameters of the PERM regulations, thus denial of certification is proper.
Florida Restaurant Group, LLC , 2009-PER-00014 (Aug. 25, 2009) (Affirming denial)
When determining the appropriate prevailing wage rate, the SWA takes into account the required experience. Specifically, the SWA selects one of the four wage levels based on a comparison of the Employer's job requirements to the occupational requirements.
Here, the Employer indicated that no experience was required for the position by leaving the field for �experience years� blank on the SWA prevailing wage request form, but required 24 months of experience on the ETA Form 9089. Accordingly, the CO properly denied certification based on the failure of the Employer to state its experience requirement when requesting the SWA prevailing wage determination.
Superior Landscape, Inc. , 2009-PER-00083 (Aug. 28, 2009) (Reversing denial)
The Immigration and Nationality Act provides that the prevailing wage required to be paid by an employer sponsoring an alien for permanent labor certification shall be 100 percent of the prevailing wage determination. 8 U.S.C. � 1182(p)(3). In this case, the Employer's statement of its wage offer was deficient by 40 cents per week (i.e., $19.70 per hour instead of $19.71 per hour). The stated wage offer was approximately 99.95 % of the prevailing wage. Under these precise circumstances, we are willing to round up to 100%.
Thomas L. Brown Associates, P.C. , 2009-PER-00347 (Sept. 1, 2009) (Affirming denial)
The Notice of Filing is required to contain the information required for advertisements by section 656.17(f). 20 C.F.R. § 656.10(d)(4). Section 656.17(f)(5) provides that an advertisement must �[n]ot contain a wage rate lower than the prevailing wage rate.� But this subsection does not mean that if the actual wage offer is higher, advertisements may only list the lower prevailing wage. Rather, section 656.17(f)(7) provides that the advertisements must �[n]ot contain wages or terms and conditions of employment that are less favorable than those offered to the alien.�
In the instant case, the actual wage offer was substantially higher than the prevailing wage set by the SWA. Because the lower prevailing wage was stated in the Notice of Filing, it contained a wage less favorable than the wage offered to the Alien.
Phoenix Life Insurance Company , 2010-PER-00058 (Mar. 3, 2010) (Affirming denial)
Under the regulations the Notice of Filing must not contain wages or terms and conditions of employment that are less favorable than those offered to the alien. In the instant case, the Employer listed a wage range on its Notice of Filing that included a bottom range which was lower that the wage it offered wage to the Alien.
Diamond Valley Contracting LLC , 2009-PER-00121 (June 23, 2009) (Affirming denial)
Continental Systems USA, Inc. , 2009-PER-00441 (Apr. 7, 2010) (Affirming denial)
As part of the permanent labor certification process, the employer must attest to certain conditions of employment, including that �[t]he employer has enough funds available to pay the wage or salary offered the alien.� 20 C.F.R. § 656.10(c)(3). In determining if an employer has sufficient funds to pay for wages, what is important is not whether the employer's adjusted gross income, taxable income, disposable income or any other measure of income is established, but whether the employer has presented credible evidence that it has enough money available to guarantee the alien's salary. Ranchito Coletero , 2002-INA-105 (en banc).
In this case, the employer did not present credible evidence that it has enough money available to guarantee the Alien's salary. A statement of assets and the Employer's contention that the Alien will generate enough funds through consulting to enable the Employer to pay his salary is not sufficient under the regulations.
A-Plus Masonry, Inc. , 2010-PER-00087 (May 5, 2010) (Affirming denial)
The regulation at 20 C.F.R. § 656.17(a)(1) states, �Applications submitted by mail must contain the original signature of the employer, alien, attorney, and/or agent when they are received by the application processing center.� Omitting the attorney's signature cannot be considered a harmless error, as the Employer argued, but is a fatal omission to the application.
Under 20 C.F.R. §656.10(c), the employer must certify to the conditions of employment in the Application for Permanent Employment Certification under penalty of perjury. Failure to attest to any of the conditions listed results in denial of the application. Where the CO is unable to contact the Employer to confirm the conditions of employment, certification is properly denied.
- FEIN
Maria Gonzales , 2007-PER-00024 (Apr. 25, 2007) (Affirming denial)
The regulations do not permit a domestic Employer to use a social security number as a substitute for a Federal Employer Identification Number (FEIN). Pursuant to § 656.3, an employer must possess a valid FEIN.
Joan M. Bugajski-Lang , 2007-PER-00079 (Dec. 17, 2007) (Affirming denial)
An employer is required to have a FEIN at the time of application for labor certification. Failure to have a FEIN is not a mere typographical or clerical error or innocent oversight, and obtaining a FEIN after filing does not cure the deficiency. Private households are not exempt from the requirement of possessing a FEIN when engaging domestic workers
WWM, Inc. , 2008-PER-00064 (Oct. 28, 2008) (Affirming denial)
Where an application was deficient at the time of filing because the sponsoring employer did not have a valid FEIN, the CO is not required to permit the application to be perfected based on a change in ownership.
Pacific Molding , 2008-PER-00042 (June 12, 2008) (Affirming denial)
The FEIN of an agent offered in lieu of a petitioning employer's own FEIN fails to satisfy § 656.3.
Ralph Basile Construction , 2009-PER-00092 (Mar. 17, 2009) (Affirming denial)
In this case the Employer presented a FEIN in its documentation in support of its request for review that was different from the FEIN in its original application. However, the Employer provided evidence that fully explained why the FEINs were different and confirmed that the Employer was a bona fide entity. Since the application had been denied solely on the ground that the CO was unable to verify the Employer possessed a valid FEIN, the Panel found that consideration of the new evidence was necessary to prevent an unjust result.
