Judges' Benchbook: Alien Labor Certification

Office of Administrative Law Judges
United States Department of Labor

Second Edition - May 1992

CHAPTER 12 -- SUPPLEMENT

Supplement current through January 1997

FINAL DETERMINATION

Return to Main Text .
TABLE OF CONTENTS

I. Regulatory requirements for FD

II. Elements of FD

III. Circumstances where FD inappropriate

I. Regulatory requirements for FD

no new cases

II. Elements of FD

Employers, apparel manufacturers, sought multiple certifications for the position of "duplicate maker" or "sample stitcher." The CO issued a NOF questioning both whether the work was permanent and full-time (given that there seemed to be periods in which workers were forced to take leave without pay) and whether, in view of the number of previous certifications for the same or like positions, Employer had sufficient volume of business to guarantee work for the positions. In regard to the first question, the CO requested documents related to payroll which Employers failed to provide. In regard to the second, Employer was required to provide business contracts that would justify the hiring of more workers. Employers did not provide contracts but did provide tax returns, invoices, contractor agreements and purchase orders. Employers further noted that they had idle sewing machines. The CO denied certification on the basis, inter alia , that Employers' rebuttals were inadequately responsive to the NOF. On appeal, Employers contended that the FD failed to explain why their documentation was rejected and that the denial was based on a subjective determination about the volume of business being able to support additional employees. The Board disagreed, analogizing the quantum of detail in a FD to that found in a NOF. See Miaofu Cao , 94-INA-53 (Mar. 14, 1996) (en banc). It noted that a FD "is not intended to be a decision and order that makes extensive legal findings and discusses all evidence submitted to the file." Instead, it reasoned, the CO's NOF provided Employer with adequate notice of the nature of the violation , the basis for the CO's challenge and instructions for rebutting or curing the deficiencies. Moreover, it noted, "Employers' complaint about the brevity of the CO's FD does not absolve it from the burden to produce sufficient evidence..." Top Sewing, Inc. and Columbia Sportswear , 95-INA-563 and 96-INA-38 (Jan. 28, 1997)

A. Section or subsection violated

no new cases

B. Nature of violation

no new cases

C. Issue must have been raised in NOF

Employer applied for certification for the position of Electronic Technician in an electronics repair business. The job duties included the detection of problems and the repair of microwave ovens. Employer required 2 years of experience. The CO denied certification for, among other things, Employer's failure to document that the Alien had experience with microwave ovens. On appeal, Employer argued that failure to document the Alien's experience was a new issue that should not have been considered by the CO. The Board affirmed the CO's denial of labor certification. Citing Marathon Hosiery Co . , Inc. , 88-INA-420 (May 4, 1989) (en banc), the Board acknowledged that labor certification is improperly denied where the CO raises a definitive issue for the 1st time in the FD. However, the Board reasoned that, here, the CO had merely commented on the Alien's lack of documented experience in microwaves to demonstrate that he was interviewed without the required experience. The Board found that "this issue was not a new grounds for denial which was first stated in the Final Determination, but was an explanation of the CO's findings that the applicant should have been interviewed." Active Electronics, Inc. , 95-INA-160 (Dec. 23, 1996). See also Rousseau Enterprisse, Inc ., 94-INA-501 (Feb.14, 1996).

After the CO denied certification based on the unlawful rejection of a U.S. applicant, Employer filed a "Reply to the Final Determination" in 1 recent case. The "reply" provided additional justifications for the rejection of the applicant. Citing Dr. & Mrs. Frederic Witkin , 87-INA-532 (Feb. 27, 1989) the Board remanded the case. The Board reasoned that the Reply complied with an order in the NOF which required to state with specificity the lawful, job related reasons for the rejection. Moreover, the Board noted that it may have been difficult to understand the CO's directions in the NOF. The Board reasoned, "if the record was reopened the CO would have the opportunity to receive and evaluate the newly supplied job related reasons..." for the applicant's rejection. Given the above, the Board treated the "reply" as a timely motion for reconsideration that introduced new evidence. Palo Alto Electric Motor Corp. , 95-INA-249 (Feb. 3, 1997).

The Board recently cited Duarte Gallery, Inc. , 88-INA-92 (Oct. 11, 1989) (holding that the CO may not raise an issue in the FD not raised in the NOF), in remanding a case to CO with directions to grant certification. Employer had applied for certification for the position of "European Human Resources Specialist" and listed on the ETA 750A the requirement of a B.A. in hotel administration. However, in its advertising for the position, Employer required a "B.A. or its equivalent." The CO denied certification on the basis that the ETA 750A form included the word, "B.A." rather than "B.A. or equivalent," even though a NOF had earlier been issued on the basis that Alien did not possess the minimum requirements for the position. Reversing the CO, the Board reasoned that since "Employer's minor misstep has not been a basis for denial and no other issues have been raised for rejections of certification, we must reverse." Ritz Carlton Hotel , 95-INA-265 (Jan. 29, 1997).

Employer applied for certification for the position of Woodworker and required 3 years experience in the job offered. Employer had 2 positions open and offered 1 to a U.S. applicant. The CO issued a NOF proposing to deny certification on the basis that requiring 3 years of experience was unduly restrictive. After Employer submitted a rebuttal, however, the CO denied certification because Employer had already filled 1 position with a U.S. worker and the CO believed full-time work was no longer available. The Board reversed and remanded the case to the CO. Citing Downey Orthopedic Medical Group , 87-INA-674 9 (Mar. 16, 1988), the Board stated that the "basis for denial appearing in the Final Determination must have first appeared in the NOF." The Board reasoned that the CO erroneously issued a FD rather than a NOF because the CO's basis for denial, that permanent and full-time employment was no longer available, had not been listed in the NOF. A.P.C. Construction , 95-INA-239 (Feb. 7, 1997).

According to the dissent, the CO raised new issues in the FD when it denied Employer's labor certification for the position of "Housekeeper, Live-in." The CO had issued a NOF asking Employer to submit documentation of the nature and location of Employer's business and specific work schedules of adults in the household. Employer rebutted that he owned his own business called "F.B.J.S. Enterprises" at Suite 265 Merrick Road in errick, the purpose of which was to provide home and business maintenance. He stated further that his business required long hours starting at 6:00 A.M., and that, up until present, he attempted several solutions in lieu of a live-in housekeeper (getting a babysitter, getting food from local restaurants, having someone clean the house, and simply dividing up the time between his wife and him). When the CO issued its FD it noted that no business called F.B.J.S. Enterprises had a telephone listed in Merrick and that Post Office Box 265 (suite 265 in the Employer's rebuttal) was not listed as a business address. Citing North Shore Health Plan , 90-INA-60 (June 30, 1992) the dissent argued that the FD wrongfully addressed 2 new issues: no business telephone listing and no post office box number. Normally, the dissent noted, the case should be remanded. However, the dissent argued that "a remand would serve...[no] useful purpose, here, as...the Employer has clearly established that the live-in requirement is essential to perform in a reasonable manner, the duties of the job." Frank Basilicata , 95-INA-283 (Feb. 6, 1997) (Huddleston, J. dissenting).

Employer sought labor certification for the position of accountant. It required on the ETA 750A form for the position a bachelor's degree in business administration or accounting, 5 years experience in the position offered, a CPA certificate from any state or country and experience using Lotus 123 and a 10 key by touch. Employer rejected 2 applicants for the position because they had failed to demonstrate in a written test administered at the time they were interviewed that they had the knowledge to perform the duties of the position. Employer noted that Alien had passed the same exam. In a NOF the CO requested that Employer show the date when Alien took the examination. In rebuttal Employer stated that Alien took the examination on October 7, 1992. The CO denied certification because, inter alia , the "employer failed to document the date and prove that the Alien completed and passed the examination." The Board reversed. Citing arathon Hosiery Co., Inc. , 88-INA-420 (May 4, 1989) (en banc) (reversing a denial of labor certification where the FD raised an issue not previously raised in the NOF), the Board reasoned that the CO never informed Employer that it needed to document the date and prove that Alien completed and passed the examination. Instead, the CO had merely requested that Employer provide the date when Alien passed the examination. Pattern Knitting ills, Inc. , 95-INA-109 (Dec. 2, 1996)

In its recruitment report Employer noted the rejection of 5 applicants for the position of "all around Butcher." One of these applicants was rejected because "he had no experience in preparing sausage, which is an important part of Employer's business." The CO issued a NOF proposing to deny certification on the basis that all 5 applicants appeared qualified for the position, and had been rejected for unlawful reasons. However, in the Final Determination the CO denied certification because the 1 applicant "was rejected for the lack of qualifications and experience not required in either the ETA 750A or Employer's advertising" (i.e. the lack of experience in preparing sausage and Italian style meats). The Board reversed the CO's FD. It reasoned that remand was appropriate because the Board has repeatedly held that raising an issue for the first time in the FD deprives Employer the opportunity to rebut or cure. See Downy Orthopedic Medical Group , 87-INA-674 (Mar. 14, 1988) (en banc). Three Star Beef Co., 95-INA-99 (Nov. 13, 1997)

1. Notice requirement

A CO cannot raise an issue for the first time in the FD. See Marathon Hosiery Co., Inc. , 88-INA-420 (May 4, 1989). The NOF required Employer to address the local job service's allegations that it had referred 4 applicants to Employer and that Employer had subsequently informed it that it had been filled by Alien. The CO's first opportunity to determine the validity of Employer's reasons for rejecting the applicants was not until she had received Employer's rebuttal where Employer discussed its reasons for rejecting the applicants. The CO should have issued another NOF rather than issue a FD to let Employer rebut the CO's finding that Employer had rejected applicants for other than lawful reasons. Mohawk MFG. Corp. , 94-INA-580 (June 5, 1996). See also Wong's Palace Chinese Restaurant , 94-INA-410 (Oct. 12, 1995).

Employer applied for certification for the position of Woodworker and required 3 years experience in the job offered. Employer had 2 positions open and offered 1 to a U.S. applicant. The CO issued a NOF proposing to deny certification on the basis that requiring 3 years of experience was unduly restrictive. After Employer submitted a rebuttal, however, the CO denied certification because Employer had already filled 1 position with a U.S. worker and the CO believed full-time work was no longer available. The Board reversed and remanded the case to the CO. Citing Marathon Hosiery Co., Inc. , 88-INA-420 (May 4, 1989) (en banc) and Dr. & Mrs. Fredric Witkin , 87-INA-532 (Feb. 28, 1989) (en banc), the Board noted that a "CO cannot raise an issue for the first time in the Final Determination because it deprives Employer of the opportunity to rebut or cure the defect, denied due process, and violates § 656.25(c)(20)." The Board reasoned that the CO erroneously issued a FD rather than a NOF because the CO's basis for denial, that permanent and full-time employment was no longer available, had not been listed in the NOF. A.P.C. Construction , 95-INA-239 (Feb. 7, 1997).

2. Disposition of cases where new issue raised in FD

If a CO bases his or her FD on evidence not first discussed in an NOF, then the matter is remanded to the CO for clarification. See Dr. Mary Zumot. , 89-INA-35 (Nov. 4, 1991). The NOF required Employer to address the local job service's allegations that it had referred 4 applicants to Employer and that Employer had subsequently informed it that it had been filled by Alien. The CO's first opportunity to determine the validity of Employer's reasons for rejecting the applicants was not until she had received Employer's rebuttal where Employer discussed its reasons for rejecting the apllicants. The CO should have issued another NOF rather than issue a FD to let Employer rebut the CO's finding that Employer had rejected applicants for other than lawful reasons. Mohawk MFG. Corp. , 94-INA-580 (June 5, 1996). See also Rousseau Enterprisse, Inc ., 94-INA-501 (Feb.14, 1996).

Employer applied for certification for the position of Woodworker and required 3 years experience in the job offered. Employer had 2 positions open and offered 1 to a U.S. applicant. The CO issued a NOF proposing to deny certification on the basis that requiring 3 years of experience was unduly restrictive. After Employer submitted a rebuttal, however, the CO denied certification because Employer had already filled 1 position with a U.S. worker and the CO believed full-time work was no longer available. The Board reversed and remanded the case to the CO. Citing Dr. Mary Zumot , 89-INA-35 (Nov. 4, 1991), the Board remanded the case to "Ensure that the Employer's due process rights are not violated." The Board reasoned that the CO erroneously issued a FD rather than a NOF because the CO's basis for denial, that permanent and full-time employment was no longer available, had not been listed in the NOF. A.P.C. Construction , 95-INA-239 (Feb. 7, 1997).

D. Evidence must have been discussed in NOF

1. Notice requirement

The panel remanded a case where Employer complied with the CO's request for documentation but the CO denied labor certification because he wanted additional information. The panel concluded that the CO should have issued a second NOF. Gibson, Dunn & Crutcher , 91-INA-286 (Dec. 7, 1992).

A case was remanded where the CO failed to place Employer on notice that its reason for rejecting a U.S. worker (the inability to handle the responsibilities of the job) was improper. Topline Fashion , 92-INA-83 (Mar. 24, 1993). See also UMDNJ-New Jersey Medical School , 92-INA-283 (July 19, 1993) (CO raised "experience gained with same employer" objection for the first time in the FD); Tanforan Dental Group , 92-INA-22 (Mar. 25, 1993).

The panel remanded a case where Employer complied with the CO's request that the employer readvertise in a different medium but rejected the three interested applicants. The CO issued a Final Determination denying certification because Employer rejected the three interested applicants without providing any reason. The panel vacated that Final Determination and directed the CO to issue a second NOF affording Employer the opportunity to provide lawful, job-related reasons for rejection of the apparently qualified applicants. National Jewish Center , 93-INA-87 (Apr. 21, 1994). See also Cosmetic Specialties, Inc. , 93-INA-161 (Jun. 2, 1994) (CO cannot base the denial of certification on an issue first raised in the Final Determination).

2. Disposition of cases where evidence first discussed in FD

A case was remanded where the CO challenged receipt of an interview letter sent by certified mail based upon evidence in the form of a Post Office Routing Slip which was attached to the FD. The panel noted that "[s]ince the . . . allegation and evidence was not presented along with the NOF, the CO's reliance on it was inappropriate." Matolek Furniture , 91-INA-227 (May 21, 1992).

The Board held that "[d]enying labor certification in the Final Determination on grounds not first raised in the warning Notice of Findings violates section 656.25 and denies due process." North Shore Health Plan , 90-INA-60 (June 30, 1992) (en banc). See also METCO Consolidated , 91-INA-56 (Aug. 3, 1992) (case remanded to permit Employer an opportunity to address deficiencies cited).

E. Discussion of employer's timely rebuttal evidence and argument

Case remanded where the CO ignored rebuttal evidence establishing that Alien possessed experience required of U.S. applicants. Upon remand CO must discuss this evidence in reaching the Final Determination. Hollywood Auto Sales , 93-INA-123 (Oct. 27, 1994).

Case remanded where the CO did not clearly address Employer's rebuttal argument that the job was improperly classified except in a memo to the file after issuance of the Final Determination that apparently was not sent to Employer. Jose Dasilva Ferreira , 93-INA-212 (Oct. 31, 1994).

Case remanded where the CO did not address Employer's contention that the job is that of a shop tailor rather than a sewing machine operator. Without explanation, and disregarding Employer's arguments, the CO simply asserted that the position had been recoded to a sewing machine operator. T & H Fashions, Inc. , 93-INA-550 through 93-INA-552 (Apr. 6, 1995).

1. Disposition of cases where timely evidence and arguments not discussed in FD

The denial of labor certification was reversed where the CO rejected, without consideration, Employer's rebuttal regarding the experience requirement. Marie's Fashion , 90-INA-499 (Sept. 4, 1992). See also Marjorie Burrows , 91-INA-295 (Dec. 2, 1992) (employer submitted evidence on split-shift requirement).

The panel remanded a case where the CO failed to adequately address Employer's rebuttal and additional documentation regarding business necessity for a live-in requirement. Reepu & Savitrie Singh , 91-INA-110 (Aug. 3, 1992). See also David Volkert & Associates, Inc. , 90-INA-494 (Feb. 4, 1993) (remand proper where CO failed to address employer's arguments on rebuttal regarding "sufficient dissimilarity" test); Connecticut Muffin Co. , 91-INA-16 (Aug. 5, 1992) (failure to consider Employer's rebuttal regarding the "area of intended employment" in prevailing wage case).

The CO's denial of labor certification was reversed where the CO failed to "recognize and respond to the (Employer's) extensive rebuttal." H.P. Laboratories , 91-INA-87 (Mar. 12, 1992). See also Arcadia Guerrero , 91-INA-359 (June 17, 1993) (the CO failed to consider rebuttal regarding alien's qualifications which panel concluded was sufficient and labor certification was granted); Altera Corp ., 90-INA-136 (June 19, 1992); Manna Ranch, Inc ., 91-INA-62 (June 30, 1992). In Teryle J. Beye , 92-INA-8 (Mar. 23, 1993), the case was remanded.

The CO's failure to assess Employer's uncontradicted assertions that a U.S. worker was properly rejected as unqualified resulted in a reversal in the denial of labor certification. Big Brothers Knitting Mills, Inc. , 91-INA-67 (June 4, 1992).

The CO erred in denying labor certification to argue that Employer's driver's license requirement created an adverse wage or working condition where Employer, in its rebuttal, offered to delete the requirement. Sandra Allyn , 90-INA-509 (Aug. 21, 1992).

The CO erred in failing to consider Employer's offer to delete the live-in requirement for the job offered. Akinyele Aluko, M.D. , 91-INA-202 (Aug. 4, 1992).

Failure of the CO to consider Employer's rebuttal evidence regarding good faith efforts to contact a U.S. applicant will result in granting of labor certification as the NOF is deemed successfully rebutted. Fluor Daniel , 90-INA-313 (Dec. 18, 1991).

A case was remanded where the CO mischaracterized the job offered and thus "may not have properly analyzed Employer's rebuttal...." American Jewish Theatre , 91-INA-346 (Dec. 16, 1992).

A CO's failure to address Employer's central rebuttal constitutes ground for reversing the denial of labor certification. See Dr. Mary Zumot , 89-INA-35 (Nov. 4, 1991). The CO failed to address Employer's central rebuttal argument and further failed to present a valid reason for denying certification such that labor certification was reversed. Key Management Group, Inc. , 94-INA-590 (Feb. 26, 1996). See also Rousseau Enterprisse, Inc ., 94-INA-501 (Feb.14, 1996).

In the Final Determination, the CO specifically and unequivocally restricted the sole issue involved to that of the necessity for full-time employment for the position of chef. The issues of unduly restrictive requirements for the job advertised and the business necessity as opposed to preference for a chef knowledgeable in preparing Indian dishes were not addressed. Accordingly, these issues were not considered by the Board because the Final Determination did not respond to Employer's argument or evidence. See Barbara Harris , 88-INA-32 (Apr. 5, 1989). Hunter's Inn , 95-INA-278 (Feb. 19, 1997).

2. Merit of employer's rebuttal evidence and arguments may affect disposition

The Board cited Quincy School Community Counsel , 88-INA-81 (Feb. 21, 1989) (en banc) and reversed the CO's denial of certificaion. The CO had failed to consider one of Employer's central arguments concerning business necessity and the Board found Employer's argument persusasive. Key Management Group, Inc. , 94-INA-590 (Feb. 26, 1996).

F. Harmless error in format of FD

no new cases

III. Circumstances where FD inappropriate

Where an employer responds to deficiencies in NOF by reducing requirements and offering to readvertise, but CO instead denies certification in Final Determination altogether, the case must be remanded to allow employer to readvertise and reinterview to establish good faith efforts. Rosenblum/Harb Architects , 94-INA-525 (March 29, 1996).

Where Employer is told that requirement is restrictive, and Employer subsequently offers to readvertise but without dropping the restrictive requirement, certification was properly denied. GPF Systems, Inc. , 94-INA-301 (June 30, 1995)

Employer's attempt to readvertise a position found to be unduly restrictive failed when the Employer was actually seeking an opportunity for further disputation with the CO rather than amending and readvertising in accordance with the CO's determination. Chemtex International, Inc . - 94-INA-308 (May 31, 1995).

A. Rebuttal contains offer to cure defect and readvertise

See Paragon Imports Corp. , 91-INA-319 (Feb. 4, 1993) (employer offered to readvertise if rebuttal regarding infeasibility to train was unpersuasive); A to Z Vending Services Corp. , 91-INA-14 (Jan. 29, 1993); compare Paragon Computer Professionals, Inc. , 92-INA-49 (Sept. 1, 1993) (employer did not offer to cure basic objections of CO, but merely presented a different mix of specific requirements); Elliot & Frada Pasik , 93-INA-38 (Mar. 21, 1994) (employer's statement in rebuttal that it would only cure advertisement when directed to by BALCA is not an offer to cure and certification properly denied).

Final Determination wrongly issued where in the Notice of Findings the CO stated "should the employer wish to cure the deficiencies of the application by placing the advertisement, job order and posted notice as required in the regulations, the local employment office where the application was originally filed should be contacted before the employer does so". The panel found it understandable that Employer interpreted this in its rebuttal as allowing the deficiencies to be remedied by readvertising. Accordingly, the CO should have issued a second NOF clarifying what actions Employer could take in order to cure the alleged defects. Fepco Tool & Supply, Inc. , 92-INA-287 (May 12, 1994).

Where Employer's rebuttal demonstrates business necessity for a job requirement which as originally advertised violated 656.20(c)(5), and where Employer indicates a willingness to readvertise and clarify the requirement, issuance of FD inappropriate. Accordingly, the case was remanded to allow Employer opportunity to readvertise. Integrated Support Systems, Inc. , 93-INA-211 (Jun. 28, 1994).

Where Employer's rebuttal addresses all the CO's objections and clearly indicated its intention to correct the job posting deficiencies noted in the NOF, the case was remanded back to the CO for further consideration. The panel noted that Employer's failure to change the four year experience requirement originally listed in the job posting to two years as required was a "typographical error". Belgrove Major Appliance , 93-INA-237 (Jul. 18, 1994).

Case remanded to the CO to allow Employer to reduce requirements and readvertise as Employer alternatively agreed in its rebuttal. Century 21 Construction Corp. , 93-INA-192 (Oct. 24, 1994). See also E.M. Warburg, Pincus & Co., Inc. , 93-INA-343 (Jan. 26, 1995).

If a matter is first raised in the FD, Employer should get the opportunity to respond. See E.M. Warburg, Pincus & Co., Inc. , 93-INA-343 (Jan. 26, 1994). Universal Medical System, Inc ., 94-INA-458 (Feb. 23, 1996).

1. Offer to cure may be conditional

Where Employer offers to readvertise without the restriction, such offer must be unconditional, and not dependant on the CO establishing the truth of the CO findings. A Smile , 89- INA-1 (Mar. 6, 1990). Career Blazers Service Co., Inc ., 94-INA-291 (June 29, 1995).

The Board remanded a case where Employer informed the CO that it would readvertise if the CO found its rebuttal unpersuasive, where the CO in fact found Employer's rebuttal arguing the business necessity of a live-in requirement for the position of housekeeper was unpersuasive, but where the CO denied certification without giving Employer the opportunity to cure the defects. Mr. and Mrs. Robert H. Blumberg , 94-INA-244, (July 19, 1995).

Where the CO found that for the position of Research Writer, Baby Care, that Employer listed unduly restrictive job requirements, where Employer demonstrated a clear intent to delete those requirements, where Employer expressed willingness to amend its application if its proposed changes were not accepted, and where Employer specifically requested that CO respond to proposed changes before issuing a FD, then the certification was improperly denied because the CO failed to give Employer the opportunity to address deficiencies found by the CO or to further amend the requirements. Fernando A. Guerra, M.D. , 94-INA-217 (June 27, 1995).

An offer to cure a defect may be conditioned on a finding that its rebuttal evidence is not persuasive because an employer cannot predict whether his rebuttal will be persuasive. See Sharon Babb , 92-INA-068 (Mar. 31, 1993). For the position of Secretary, Employer required typing at 100 words per minute and shorthand at 100 words per minute. A NOF found a requirement of 100 words per minute to be excessive and the short hand requirement unduly restrictive. After the NOF, Employer ammended each requirement to 70 words per minute but insisted that the shorthand requirement was necessary. Employer agreed to re-advertise but the CO denied certification on the basis that 1 applicant met the ammended requirements. The Board reasoned that the CO should have given Employer the opportunity to re-advertise once the CO was unconvinced by the rebuttal. Rosenblum/Harb Architects , 94-INA-525 (Mar. 29, 1996).

The CO issued a NOF to Employer proposing to deny certification on the basis of unduly restrictive job requirements. In a cover letter to a rebuttal Employers' counsel informed the CO that if she disagreed that the requirements had been justified, she should issue a second NOF whereupon Employer would delete any objectionable requirements and re-advertise. The CO denied certification. On appeal Employer argued that A Smile, Inc., 89-INA-1 (Mar. 6, 1990) mandated that Employers be given an opportunity to re-advertise before denial of certification because an offer to cure a defect may be conditioned on the CO's finding that its rebuttal evidence is not persuasive. However, the Board affirmed the denial of certification. It noted that offers to re-advertise must be unequivocal and include concrete proposals as to how the employer intends to amend it job offer and re-advertise. Here, the Board noted that Employer had been forewarned by both the New Jersey Department of Labor and the CO that its job requirements were problematic. In addition, Employer offered nothing concrete to amend its requirements. Compare this case, Amikam , 94-INA-474 (Aug. 17, 1995) and Career Blazers Service Co. , 94-INA-291 (June 29, 1995) with A. Smile, Inc. 89-INA-1. Wings Manufacturing Corp., 95-INA-98 (Jan. 27, 1997).

2. CO should grant extension of time to complete readvertisement

no new cases

3. CO should allow readvertisement if employer's request for waiver denied

no new cases

B. Employer reasonably misinterprets NOF

A case was remanded where the CO "technically" gave Employer notice of the basis for his denial in the NOF but such notice was in "a catch-all statement" which "masked" the CO's objection. Motorola Communications & Electronics, Inc. , 91-INA-278 (Feb. 23, 1993).

A case was remanded where Employer's "failure to fully rebut the CO's Notice of Findings may have been due, in part, to the CO's lack of specificity . . .." Gobi Primak, Inc. , 92-INA-161 (Mar. 11, 1993).

C. Employer misinterpretation under other circumstances [new]

The panel remanded a case where Employer misinterpreted a local job service's recommended change in its job requirements which resulted in the job being advertised without a necessary requirement. Advanced Machinery & Engineering Co. , 91-INA-221 (Feb. 1, 1993).

D. CO failed to receive documentation [new]

The panel remanded a case where the CO "was not aware of the Employer's amendment to the (ETA-750) application . . . when the NOF was issued . . . as no reference was made to the Employer's amendment" because Employer mailed it to an incorrect address. Montessori Academy , 92-INA-66 (Feb. 17, 1993).

The denial of labor certification was reversed where the CO erroneously concluded that Employer did not provide certified mail receipts demonstrating its contact of U.S. workers. As noted in Employer's motion for reconsideration before the CO, copies of the receipts were submitted along with its recruitment report to the state job service which should have, in turn, been forwarded to the CO. The panel concluded that the CO abused her discretion in denying the motion and not using the "opportunity to correct her erroneous belief that the receipts were not provided with the report of recruitment" from the state job service. The panel concluded that, with the receipts evidencing contact of the applicants, labor certification should have been granted. Injectron Corp. , 92-INA-359 (July 12, 1993).

Where CO issued Final Determination prior to expiration of the rebuttal period and where employer submitted additional rebuttal prior to expiration of rebuttal period, case remanded since rebuttal may be submitted in stages as long as it is completed prior to the due date provided in the NOF. W.R. Beach , 93- INA-307 (Jun. 28, 1994).

Where the CO specified in the NOF that Employer did not document lawful job related reasons for rejection of U.S. workers, and in rebuttal Employer maintained that its reasons for rejection were sent to the State agency, never reached the file and attached a copy to the rebuttal, denial vacated and case remanded for issuance of supplemental NOF. The CO reviewed the reasons but rather than issue a supplemental NOF, improperly issued a FD denying certification on the basis of unlawful rejection of U.S. workers, thereby denying employer the opportunity to rebut. Chatwal Hotel & Restaurants, Inc. , 93-INA-69 (Jun. 27, 1994).

E. CO provides erroneous analysis [new]

A case was remanded where the CO improperly limited Employer's rebuttal to require that it document that its "position presently constitutes an offer of permanent, full-time employment (emphasis in original)" and failed to advise the employer that, in accordance with H.R. Enterprises, Inc. , 89-INA-279 (June 25, 1990), Employer could also submit evidence of a definite plan for expansion. Star City Video , 92-INA-67 (Mar. 8, 1993).

A case was remanded where the CO erroneously concluded that Employer failed to file a recruitment report. The CO also asserted that Employer failed to contact U.S. workers, yet Employer "furnished certified mail receipts about which the CO made no comment." Employer, on the other hand, failed to advertise the job with a referral to the state employment service. The panel noted that the confusing posture of the case supported a remand "so that the CO and the Employers may determine what their actual respective positions are . . .." Hasmukh R. & Ranjan H. Parekh , 92-INA-53 (Mar. 24, 1993).

Labor certification was granted where the record supported a finding that Employer documented its recruitment effort for the job offered where "[t]he CO's objections in both Notices of Findings appear to be based on the mistaken assumption that Employer had conducted only one recruitment effort." The CO acknowledged this error in the FD but stated that the advertisement "did not conform to the usual circulation given city vacancy announcements." The panel noted that this assertion was not supported by the record and that Employer was not given any opportunity to rebut the allegation. City of Los Angeles, Dept. of Public Works , 91-INA-336 (Aug. 4, 1993).

Where CO merely lists duplicitous and erroneous regulatory citations, labor certification improperly denied. Moreover, where it was evident that Employer did adequately document its recruitment efforts, the Final Determination was reversed and certification was granted. In the NOF the CO required that Employer provide various "missing data" including placement of advertisements, job postings and recruitment results (number of applicants and the reason each was rejected). Employer complied and stated that no applicants' names were received. Charly's Auto Radio , 93-INA-126 (Jun. 7, 1994).

F. Employer fails to receive documentation [new]

A denial of labor certification was vacated and the case remanded where a U.S. applicant was rejected without an interview because his resume did not list hand sanding experience, but a cover letter from the applicant, which Employer denied receiving, did list such experience. The CO challenged Employer's rejection based upon the applicant's resume but likewise did not mention the cover letter. The panel noted that the applicant's resume did not list any qualifying experience, but the cover letter did. Thus, it concluded that, as neither Employer nor the CO received the applicant's cover letter, the case was remanded to permit readvertisement of the position. Best Developing Co. , 92-INA-276 (Apr. 28, 1993).

Denial of certification based on failure to document rejection of one U.S. applicant out of 22 inappropriate where Employer claims never to have received resume of that U.S. applicant and: (1) there was another applicant with the same last name; (2) Employer's rebuttal statements were consistent with it being unaware of second applicant with identical last name; (3) state employment agency sent transmittal noting only "21 refs"; and (4) Employer included all other U.S. applicants in its recruitment report. The panel concluded that it was unlikely that Employer purposefully "withheld its report" on the applicant in question. Moreover, because there was no evidence that the U.S. applicant at issue was qualified for the position, and Employer exhibited a good faith recruitment effort otherwise, certification was deemed appropriate. William B. Tabler Architects , 93-INA-52 (Dec. 16, 1993).

G. Employer not served with decision [new]

A panel granted Employer's motion to reopen and reconsider where Employer persuasively contended that neither it nor its counsel was served with copies of the panel's decision and order vacating the CO's Final Determination and remanding the case to allow employer 60 days to comply with the CO's Notice of Findings. Because Employer and counsel were not served with that decision and order they did not comply with that decision and order and the CO issued another Final Determination denying certification. The panel again remanded the case to allow Employer another 60 days to comply with the NOF. International Paper , 91-INA- 333 (Mar. 17, 1994).