PERM Decisions of the Board of Alien Labor Certification Appeals
February 2016


Godoy Insurance and Financial Services, Inc. , 2012-PER-01078, (Feb. 2, 2016)

Issue - Content of the NOF; information on how to contact CO

Decision - CO affirmed

The CO denied the application because the content of the NOF did not comply with the regulations. On reconsideration the employer unsuccessfully argued that its statement in the NOF saying an “[a]pplication for permanent employment confirmation pending with the U.S. Department of Labor” satisfied the regulatory requirement.

The Board (Henley, Almanza and Davis) affirmed. While acknowledging the NOF does not have to repeat the regulation verbatim ( Riya Chutney Manor, LLC , 2010-PER-177 (Apr. 7, 2010)), the Board concluded the employer’s NOF was deficient since it was silent concerning an individual’s ability to contact the CO to provide information regarding application.


Kim & Bae, P.C. , 2012-PER-1067 (Feb. 2, 2016)

Issue - Failure to supply resumes; audit notification letter contained insufficient notice

Decision - CO reversed

The CO denied because the employer did not supply the resumes of the domestic applicants with its recruitment report. On reconsideration the employer unsuccessfully argued that the audit notification letter was confusing with respect to the employer’s obligation to supply the resumes at that time.

The Board (Henley, Almanza and Davis) reversed. The panel agreed with the employer that the audit notification letter was formatted in a manner that “hid the [CO’s] directive from even a reasonably attentive employer.” The panel reversed and remanded to permit the CO to evaluate the resumes which the employer had submitted with its reconsideration request.


KS Textile, Inc. , 2012-PER-01065 (Feb. 2, 2016)

Issue - Failure to include PWD with audit response

Decision - CO affirmed

The CO denied the application because the employer failed the supply the PWD that was requested in the audit notification. On reconsideration, the employer supplied the PWD saying it had been omitted inadvertently and asking that it be considered under the principles set forth in Luigi’s Restaurant , 2009-PER-00357(Aug. 31, 2009) and Washington Hospital Center , 2010-PER-00720 (May 13, 2011). The CO reaffirmed the denial.

The Board (Henley, Davis and Merck) affirmed distinguishing both Washington Hospital Center and Luigi’s as involving situations where the CO had in fact considered the new evidence submitted with the reconsideration request which this CO had not done.


Autodesk, Inc. , 2012-PER-01059 (Feb. 2, 2016)

Issue - Failure to disclose travel in advertising; argument that business travel is inherent

Decision - CO affirmed

The CO denied the application because the employer indicated on the application that the job required travel up to 25% of the time but no such information was included in the newspaper ads. The employer argued on reconsideration that the regulation did not require business travel to be listed or, alternatively, that the travel was inherent to the position and its extent could not be predicted.

The Board (Henley, Almanza and Davis) affirmed. The decision rejected the employer’s interpretation of § 656.17(f) noting there was no basis for the argument that it did not cover business travel. The decision also observed that the fact that the travel might seem obvious to the employer did not relieve it of the obligation to include the requirement in the ads.


Prologin Technologies Inc. , 2012-PER-01058 (Feb. 2, 2016)

Issue - Content of advertising; sufficiency of recruitment report; new documentation during reconsideration

Decision - CO reversed

The CO denied on several grounds. The employer included in its application a list of six substantive areas where applicants needed to be experienced. It also indicated that the job required a Bachelor’s degree or its “functional equivalent.” Its recruitment materials contained a much longer list of areas of experience including the six listed on the application. The ads indicated that applicants much have experience in at least six of these areas. As part of the audit notification, the CO asked the employer to clarify its alternate experience requirement. The CO denied on three grounds: (1) that the employer violated § 656.17(f)(6) by advertising job requirements in excess of what was on the application; (2) the employer failed to respond to the request for a clarification of the alternate experience requirement.; and (3) the recruitment report failed to adequately explain the grounds for the rejection of 5 domestic applicants. The CO reaffirmed the denial on reconsideration.

The Board (Henley, Almanza and Merck) reversed. With respect to the recruitment material, the decision concluded that the inclusion of additional qualifying experience in the ads did not violate § 656.17(f)(6) since it did not function to exclude any workers. With respect to the clarification of its alternate experience, the Board concluded that the CO’s request was ambiguous and the employer’s response was sufficient in that context. As to the last issue, the panel concluded that the CO had misread the recruitment report. To the extent the CO treated the clarification of the recruitment report contained in the reconsideration request to be additional evidence submitted in violation of § 656.24(g), the panel concluded that the regulation precluded the submission of new documentation not the submission of legal arguments or explanations.


Mangel Electric, Inc. , 2012-PER-01053 (Feb. 2, 2016)

Issue - Content of recruitment report; failure to identify recruitment source

Decision - CO affirmed

The CO denied the application because the recruitment report did not identify all the sources the employer used in its recruiting. On reconsideration the employer argued that it had advertised in Monster.com and it included proof of that advertising. The CO sustained his denial noting that the employer had failed to identify Monster as a recruitment source in its recruitment report as required by the regulation.

The Board (Rosenow, Kennington and Romero) affirmed for the grounds utilized by the CO.


Abundant Life Evangelical Community , 2012-PER-00663 (Feb. 2, 2016)
River Towns Real Estate Inc. , 2012-PER-00641 (Feb. 3, 2016)
XCELTECH, Inc. , 2012-PER-00811 (Feb. 3, 2016)
Alta Bates Summit Medical Center , 2012-PER-01700 (Feb. 25, 2016)

Issue - Content of the job order - Symantec

Decision - CO reversed

The CO denied these applications because the job order contained information not found on the application.

The Board (Henley, Davis and Merck) reversed based on Symantec Corp. , 2011-PER-1856 (July 20, 2014) ( en banc ).


Johns Hopkins Health Systems Corp. , 2012-PER-01751 (Feb. 2, 2016)

Issue - Duplicate labor cert; proof of receipt of original labor cert; presumption of delivery

Decision - CO reversed

The CO granted the employer labor cert request in May 2011. The employer allegedly only found out that the cert had been granted when it submitted a status inquiry in February 2012. While the CO indicated his willingness to issue a duplicate certification, he noted that it would contain the original issuance date and therefore could not be used to support a visa petition. The CO refused to reissue the cert with a new validity period.

The Board (Henley, Davis and Merck) reversed. Relying on well-established precedent, most recently cited in High Performance Floors, Inc. , 2012-PER-900 (July 15, 2015), the panel concluded that the CO could not rely on the presumption that the certification had actually been mailed because the CO had failed to document its internal mail procedures, a necessary pre-requisite to invoking the presumption. Even if properly invoked, the decision concluded it was rebutted by multiple affidavits and circumstantial evidence. The Board ordered the CO to issue the labor cert with a validity date that would support a visa petition.


Michael K. Rosner , 2012-PER-01711 (Feb. 3, 2016)

Issue - Wage advertised below offered wage

Decision - CO affirmed

The CO denied the application because the wage described in the newspaper ads ($10.23 per hour) was less than the wage offered to the foreign worker ($10.30) as set forth on the application. On reconsideration, the employer submitted an amended application that lowered the offered wage. The CO reaffirmed the denial.

The Board (Henley, Almanza and Davis) affirmed concluding that the provisions of 20 C.F.R. § 656.11(b) precluded the employer from modifying the application. In addition the Board observed that even if the application could be modified, it would not cure the deficiency since the advertising would still have been deficient.


Turkish American Society , 2012-PER-00216 (Feb. 3, 2016)

Issue - Timeliness of motion for reconsideration; presumption of delivery of denial letter

Decision - CO reversed

The CO denied the application because he concluded that job order contained a Turkish language requirement not contained in the application. The employer filed for reconsideration arguing that there was no language requirement and the CO was misreading the job order. The employer filed the reconsideration almost six months after the date on the denial letter. The employer alleged that it filed for reconsideration in a timely manner when it became aware of the denial after a status inquiry. The CO refused to reconsider concluding that the request was untimely.

The Board (Henley, Davis and Merck) reversed. Applying established case law, most recently articulated in High Performance Floors, Inc. , 2012-PER-0900 (July 15, 2015) the Board concluded that the CO was unable to invoke the presumption of delivery absent proof of the internal mail procedures. Even if the presumption had been invoked, the decision concluded that presumption would have been rebutted. The Board therefore vacated the denial and remanded to permit the CO to address the merits of the employer’s request for reconsideration.


Biohorizons Implant Systems , 2012-PER-01150 (Feb. 8, 2016)

Issue - Failure to respond to audit notification; presumption of delivery

Decision - CO reversed

The CO denied the application because the employer failed to respond to the audit notification. The employer argued on reconsideration that neither the employer nor its attorney had received the notice. The CO affirmed the denial.

The Board (Henley, Davis and Merck) reversed. Applying established case law, most recently articulated in High Performance Floors, Inc. , 2012-PER-0900 (July 15, 2015), the Board concluded that the CO was unable to invoke the presumption of delivery absent proof of the internal mail procedures. Even if the presumption had been invoked, the decision concluded that presumption would have been rebutted. The Board therefore vacated the denial and remanded to the CO for further processing.


Oneplace LLC , 2012-PER-01818 (Feb. 10, 2016)

Issue - Failure to include recruitment report in audit response; inadvertent omissions

Decision - CO affirmed

The CO denied the application because the employer failed to include a copy of the recruitment report in its audit response. On reconsideration the employer unsuccessfully argued that it had intended to include the report and noted the reference to it in the cover letter. The CO reaffirmed the denial.

The Board (Henley, Davis and Merck) affirmed. The decision rejected the employer’s reliance on the decisions in Forest View Nursing Home , 2010-PER-106 (Feb. 11, 2011) and Luigi’s Restaurant , 2009-PER-357 (Aug. 31, 2009) which provided relief to employers in analogous situations in favor of the reasoning in Sandy Run Farm , 2011-PER-2305 (June 5, 2014) that rejected that approach.


Sky Foundation , 2012-PER-01570 (Feb. 10, 2016)
UST Global Inc. , 2012-PER-01661 (Feb. 10, 2016)
Brocade Communications Systems, Inc. , 2012-PER-1659 (Feb. 11, 2016)

Issue - Failure to provide PWD

Decision - CO affirmed

The Board (Henley, Davis and Merck) affirmed the denials based on the employers failure to supply the PWD in their audit response.


Dream Enterprise 2, LLC , 2012-PER-01129 (Feb. 11, 2016) Issue - Attorney signing recruitment report

Decision - CO affirmed

The Board (Henley, Almanza and Merck) affirmed the denial based on the fact the attorney, and not the employer, signed the recruitment report. The decision noted that the fact that no domestic workers applied did not relieve the employer of its obligation to sign the recruitment report.


Calandra’s Italian & French Bakery , 2012-PER-03280 (Feb. 18, 2016)

Issue - Incomplete recruitment report; new evidence on reconsideration

Decision - CO affirmed

The Board (Henley, Almanza and Merck) affirmed the denial where the employer failed to submit a complete recruitment report. The employer argued that the missing documents had been left out inadvertently and had been supplied as part of the reconsideration request. The CO refused to consider the submission because of the evidentiary limitation of 20 C.F.R. 656.24(g). The decision, relying on Simply Soup Ltd. , 2012-PER-0940 (Jan. 13, 2015) (en banc) noted that the CO had not abused his discretion by requiring employer compliance with the regulations.


Limitbusters Coaching & Training, Inc. , 2012-PER-01914 (Feb. 18, 2016)
Jubilee Health Care Management, Inc. , 2012-PER-01695 (Feb. 18, 2016)
Ingemerca Group Inc. , 2012-PER-01670 (Feb. 18, 2016)
Universal Dying and Printing , 2012-PER-01956 (Feb. 26, 2016)

Issue - PWD validity period; modification of application

Decision - CO affirmed

The Board (Henley, Almanza and Merck) affirmed denials where neither the employer advertising nor the application filing took place within the PWD validity period. Although the employers argued there was a typographical error in the applications, the decision noted that § 656.11(b) precluded the amending of applications after filing.


JAJ Residential Care for Elderly , 2012-PER-01913 (Feb. 18, 2016)

Issue - Recruitment report not signed by employer

Decision - CO affirmed

The Board (Henley, Almanza and Merck) affirmed a denial where the employer failed to sign the recruitment report. The employer’s effort to correct the deficiency on reconsideration was precluded by the evidentiary limitation contained in 20 C.F.R. § 656.24(g).


Malakan Diamond Co. , 2012-PER-01564 (Feb. 18, 2016)

Issue - Missing recruitment report and PWD

Decision - CO affirmed

The Board (Henley, Almanza and Davis) affirmed the denial where in its audit response the employer failed to supply the recruitment report or the PWD.


Bahwan Cybertek Inc. , 2012-PER- 01147 (Feb. 18, 2016)

Issue - Wage offer on job order below prevailing; job not clearly open to U.S. workers standard; $1 wage offer

Decision - CO reversed

The CO denied the application because the job order listed the prevailing wage to be $1 per year. On reconsideration the employer argued that it normally did not advertise its wage and the $1 per year was a placeholder because the job order system required a wage to be included. The employer pointed out that in a free text field on job order it stated: “Competitive Salary. Will be discussed with the Candidate.” CO reaffirmed the denial concluding that the language in text field was not “demonstratively specific enough to overcome the potential chilling affect arising from advertising $1 as an annual salary.” The CO cited both 20 C.F.R. § 656.10 and 20 C.F.R. § 656.17 (f) in support of the denial.

The Board (Henley, Davis and Merck) reversed. Since the decision in Symantec Corp. , 2011-PER-01856 (July 30, 2014) (en banc) foreclosed the CO’s reliance on § 656.17(f), the panel analyzed the case under § 656.10 (c) assessing whether the employer’s actions rendered the position not clearly open to U.S. workers. While the Board has found wage disparities between the PWD and the job order resulting in violations of § 656.10(c), e.g., The China Press , 2011-PER- 2924 (Aug. 20, 2015) vacated on other grounds (Nov. 30, 2015), the Board concluded that standard was not met here. The Board agreed with the employer that no reasonable job seeker would have been discouraged from applying for the job.


Global TPA LLC. , 2012-PER-00847 (Feb. 18, 2016)

Issue - Advertisements in additional professional recruitment

Decision - CO reversed

The CO denied the application based on a number of advertising deficiencies; the website advertising did not contain the name of the employer and or identify the job location and it contained an experience requirement not listed on Form 9089. The CO cited both §§ 656.10(c) and 656.17(f) as support for the first two deficiencies but only § 656.17 for the last.

The Board (Henley, Almanza and Merck) reversed. In light of Symantec Corp. , 2011-PER-1856 (July 30, 2014) ( en banc ), in which the Board held that § 656.17 does not regulate the content of additional professional recruitment steps, the Board evaluated the first two denial grounds under § 656.10(c). The Board accepted the employer’s explanation as to content and structure of the web ads, and agreed that the missing information could be easily found by someone looking at the posting online. On these facts, the Board found that it could not be determined that the job was not clearly open to domestic workers. With respect to question of required experience, the panel noted that, under Symantec , the web ad merely had to encompass the occupation involved in the application and that criteria was satisfied.


P. Sharma & Associates, PLLC , 2012-PER-01119 (Feb. 23, 2016)

Issue - Wage rate on NOF below wage offered to the alien

Decision - CO affirmed

The Board (Henley, Almanza and Davis) affirmed a denial where the wage offer contained in the NOF was below both the prevailing wage and the wage offered the alien as reflected on the application. The Board rejected the employer’s argument that it acted in good faith in trying to anticipate what the PWD would be.


DGN Technologies Inc. , 2012-PER-01647 (Feb. 25, 2016)

Issue - Job clearly open; job location on website

Decision - CO reversed

The CO denied the application, because the website ad did not identify the geographic location of the position. The denial referenced both 20 C.F.R. § 656.17(f) and 20 C.F.R. § 656.10(c)(8).

The Board (Henley, Almanza and Merck), in consideration of the decision in Symantec Corp. , 2011-PER-1856 (July 30, 2014) (en banc), in which the Board held that § 656.17 does not regulate the content of additional professional recruitment steps, relied exclusively on § 656.10(c)(8) and concluded that the omission of the job location did not so misinform the potential applicants of the job opportunity as to support a determination that the job was not clearly open citing SWDWIL LLC , 2012-PER-00887 (Jan. 29, 2016) and The China Press , 2011-PER-2924 (Aug. 29, 2015) vacated on other grounds (Nov. 30, 2015).