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

Quemere International, LLC , 2012-PER-01727 (Mar. 2, 2016)

Issue - Signed recruitment report; excusable errors; fundamental fairness

Decision - CO affirmed

The CO denied the application because the employer submitted an unsigned recruitment report. On reconsideration the employer submitted the signed report and asked the CO to consider it relying on several Board cases, including Luigi’s Restaurant , 2009-PER-00357(Apr. 31, 2009), which suggest that certifications could be granted based on substantial compliance with the regulatory requirements. The CO reaffirmed the denial.

The Board (Henley, Almanza and Davis) affirmed. The Board rejected the employer’s reliance on Luigi’s Restaurant in favor of subsequent case law rejecting that approach e.g., Florida Holocaust Museum , 2011-PER-2861 (July 10, 2014). The Board also refused to follow the reasoning in Yasmeena Corp. , 2008-PER-73 (Nov. 14, 2008); and Subhashini Software Solutions , 2007-PER-43, 44, 26 (Dec. 18, 2007), where the Board concluded that “fundamental fairness” mandated certification. The panel stated: “We decline to hold that the CO’s enforcement of a substantive provision of the applicable regulations violates notions of fundamental fairness.”

 


Charles E. Churchwell , 2012-PER-01662 (Mar, 2, 2016)

Issue - Advertising below the prevailing wage

Decision - CO affirmed

The Board (Henley, Almanza and Davis) affirmed a denial where the employer’s newspaper advertisement contained a wage range the low end of which was below the prevailing wage.

 


Akbar & Associates, Inc. , 2012-PER-01207 (Mar. 3, 2016)

Issues - Job requirements on job order exceed application; job clearly open; employee referral program

Decision - CO affirmed

The CO denied the application because the job order referenced a licensure requirement not contained in the application in violation of 20 C.F.R. § 656.17(f)(6) and because the employer failed to adequately document the use of its employee referral program. The employer’s request for reconsideration was rejected by the CO.

The Board (Johnson, Bergstrom and Markley) affirmed. With respect to the first denial ground, the Board observed that while § 656.17(f)(6) did not apply to the content of the job order, denial could still be sustained under § 656.10(c)(8) - the employer’s attestation that the job was clearly open to U.S. workers. While the CO did not rely upon that regulation, the Board, citing Xceed Technologies , 2010-PER-80 (July 27, 2010), concluded that the language in the denial letter was sufficient to give the employer notice of the issue to be presented before the Board and could “reasonably interpreted as denying the application for labor certification because the job was not clearly open to any U.S. worker.” The Board also agreed with the CO that a handwritten note from the employer was insufficient documentation that the referral program was in effect during the relevant period.

 


Children’s Big Apple , 2012-PER-00700 (Mar. 7, 2016)

Issue - Job clearly open; degree requirements

Decision - CO reversed

The CO denied the application because the application listed the minimum educational requirement as “foreign equivalent of a Bachelor’s degree.” The CO determined that such a requirement violated 20 C.F.R. § 656.10(c)(8) because “by definition, a foreign degree equivalency requirement makes it impossible for most U.S. workers to qualify for the job.”

The Board (Henley, Almanza and Davis) reversed, observing that “When interpreting § 656.10(c)(8), the Board has generally reviewed the nature of an employer’s recruitment efforts, not the content of an employer’s Form 9089. See East Tennessee State University , 2010-PER-38 (Apr. 18, 2011) (en banc) (finding § 656.10(c)(8) imposes a burden on employers to conduct a good faith recruitment effort, such that the recruitment does not ‘chill a potentially qualified applicant’s interest in the position or otherwise restrict the pool of potential applicants’)-.” In this case, a foreign degree requirement found in the Form 9089 would not have dissuaded applicants. With respect to the CO’s argument that § 656.10(c)(8) governed the evaluation of the application, the Board concluded that nothing per se would have precluded the foreign degree requirement if supported by business necessity, and since the application was denied without an audit the employer was never given an opportunity to make such a showing. The panel noted that “[w]hile the CO likely had other regulatory provisions at his disposal to address the Employer’s error, we find that § 656.10(c)(8) does not support the CO’s determination.”

 


Siemens Medical Solutions USA, Inc. , 2012-PER-01069 (Mar. 7, 2016)

Issue - Alien qualification for position; correction of typos; reliance on FAQ

Decision - CO affirmed

The CO denied the application because the alien did not possess the 96 months of experience required by the application. On reconsideration the employer contended that the missing information was omitted through an oversight and asked to CO to consider the applicability of a 2009 ETA Frequently Asked Question (FAQ) that provided that in some limited circumstances errors on applications could be corrected during reconsideration. The CO affirmed the denial noting that 20 C.F.R. § 656.11(b) precluded changes to an application after filing.

The Board (Henley, Almanza and Merck) affirmed, concluding that on the face of the application the employer was in violation of 20 C.F.R. § 656.17(i)(1) by demanding a level of experience not possessed by the alien. With respect to the FAQ, the Board concluded that “The FAQ answer - does not change the regulations at 20 C.F.R. § 656.11(b). As this regulation supports the denial of certification in this matter, we need not further discuss the FAQ answer.”

 


Thomas Natale & Nichcolas Delli Santi , 2012-PER-01043 (Mar. 7, 2016)

Issue - Rejection of qualified applicants

Decision - CO affirmed

The CO denied the application because the employer rejected domestic applicants who lacked “superintendent” experience, a requirement not contained in the application. On reconsideration the employer argued that “superintendent experience” merely referred to the required experience of plumbing, landscaping, carpentry, electrical work and painting listed on the ETA Form 9089.

The Board (Romero, Price and Kennington) affirmed. The Board reviewed the employer’s rationale for rejecting each of the domestic applicants and concluded that “the added superintendent experience requirement used to evaluate applicants unlawfully excluded U.S. workers who met the minimal requirements of the position-.” The panel noted that the Application Form did not demonstrate that the alien possessed any superintendent experience.

 


Frank Bradford Seale/Three S Ranch , 2012-PER-01101 (Mar. 7, 2016)

Issues - Incomplete application; employer responsible for getting SWA to correct errors; panel declines to find waiver by CO merely because he was silent in regard to similar deficiencies

Decision - CO affirmed

The CO denied the application because the application form did not contain the specific date for the expiration of the PWD; instead it listed the month and year. On reconsideration, the employer argued that it used the date provided by the SWA and that the CO had accepted the entry for the PWD determination date which was also just included month and year.

The Board (Henley, Almanza and Merck) affirmed. The panel, citing a number of cases, concluded that the employer was responsible for the accuracy of the PWD and should have requested the SWA to correct the date. With respect to the inconsistent treatment of determination date versus the expiration date, decision concluded that the CO’s silence concerning the issuance date did not constitute of waiver of the violation regarding the expiration date. The panel cited United States v. Fleet Bank , 288 F.3d 22, 39, 41 (1st Cir. 2002) (bankruptcy court will rarely imply waiver from mere silence; whether silence constitutes waiver requires inquiry on all the facts of the case).

 


Stryker Medical , 2012-PER-01776 (Mar. 11, 2016)

Issue - Requirement in advertisements but not on Application; Symantec

Decision - CO reversed

The CO denied the application because the website advertising included travel and educations requirements not included on the Form 9089. The Board (Henley, Davis and Merck) reversed relying on the holding in Symantec Corp. , 2011-PER-1856 (July 30, 2014) (en banc).

 


Everest Production Corp. , 2012-PER-01304 (Mar. 7, 2016)

DMPRO, Inc. , 2012-PER-01985 (Mar. 24, 2016)

Issue - Signed recruitment report; new evidence on recon; inadvertent omissions

Decision - CO affirmed

The Board (Henley, Almanza and Davis) affirmed denials where the employer first submitted a signed recruitment report with its motion for reconsideration. The Everest Production decision rejected the employer’s reliance on Luigi’s Restaurant , 2009-PER-357 (Aug. 31, 2009) to justify the late submission.

 


DGN Technologies Inc. , 2012-PER-01242 (Mar. 8, 2016)

Issue - Alternate experience equivalence

Decision - CO affirmed

The Board (Markley, Rosen and Johnson) affirmed the denial involving alternate experience in which each missing year of college could be substituted for with 3 years of work experience. The Board concluded that under this formulation the alternate experience would fall within a higher SVP level than the principle experience and therefore would not be substantially equivalent. The Board rejected the argument that the employer’s approach was consistent with DHS regulations.

 


The Palms at Indian Head , 2012-PER-01211 (Mar. 9, 2016)

Issue - Offered wage less than prevailing; proper reg cite; proper NOF

Decision - CO affirmed

 

The Board (Johnson, Bergstrom and Markley) affirmed the denial of certification on two grounds. First, the wage offer on the application was below the prevailing wage in violation of 20 C.F.R. § 656.10(c)(1). The Board affirmed the denial even though the CO incorrectly cited 20 C.F.R. § 656.41(i). In addition, the Form 9089 did not indicate that the NOF had been posted. While the employer supplied a copy of the NOF with its motion for reconsideration, it did not establish the dates that it was posted.

 


Spring Branch Independent School District , 2012-PER-01160 (Mar. 10, 2016)

Issue - Failure to supply web advertising text

Decision - CO affirmed

The CO denied the application on the ground that the employer failed to adequately document the advertising on its own website because it did not supply copies that contained texts of the advertisements. On reconsideration the employer contended that it supplied the content required by the regulations. The CO denied reconsideration noting that “the Employer is required to provide the content of the job opportunity or dated copies of its website advertisement under section 656.17(e)(1)(ii)(B),demonstrating a logical nexus between the job opportunity identified in the application and the job advertised.”

The Board (Geraghty, Calianos and McGrath) affirmed. While noting that pursuant to the Symantec Corp. , 2011-PER-01856 (July 30, 2014) ( en banc ) the website advertisement did not need to contain the information required by 20 C.F.R. § 656.17(f), the CO still needed to see the content of the advertisement to determine if the job opportunity was clearly open to U.S. workers under 20 C.F.R. § 656.10 (c)(8).

 


Roma Rays Italian Bakery Inc. , 2012-PER-01187 (Mar. 10, 2016)

Issue - Supplying alien’s resume during supervised recruitment

Decision - CO affirmed

The Board (Calianos, Geraghty and McGrath) affirmed the denial based on the employer’s failure to timely supply a copy of the alien’s resume sought during supervised recruitment. The Board rejected, as speculative, the argument that the CO had mistakenly requested the resume where the information concerning the alien’s qualifications were contained on the application. It also concluded that the failure to supply the document could not be overcome based on the fact that the alien did not possess a resume, noting the that the employer failed to seek clarification from the CO as to whether alternative documentation would suffice.

 


King of Sweets Corp. , 2012-PER-01186 (Mar. 10, 2016)

Issue - Failure to follow recruitment instruction in supervised recruitment

Decision - CO affirmed

The Board (Calianos, Geraghty and McGrath) affirmed a denial where the employer failed to use the advertising language approved by the CO in all its supervised recruitment advertising. Specifically, the job order did not contain the prevailing wage. The fact that other elements of the advertising did contain the wage did not overcome the deficiency.

 


Broken Hill Proprietary (USA) Inc. , 2012-PER-01728 (Mar. 11, 2016)

Issue - Job location in newspaper advertisement

Decision - CO affirmed

The Board (Henley, Almanza and Davis) affirmed the denial where the newspaper advertisements did not contain the job location. The Board rejected the employer’s argument that the preamble to the regulations suggested that a statement of location was not needed for an employer with one location. The decision noted that such an argument had been rejected in Family, Inc., 2010-PER-1166 (Sept. 27, 2011) and Alexandria Granite & Marble , 2009-PER-373 (May 26, 2010). The Board also rejected the employer’s reliance on Dr. Deza’s Dental Office , 2010-PER-113 (Feb. 11, 2011) for the proposition that the necessary geographic information could be found through a web link. The decision concluded that principle only operated with web based advertisements where the link was included in the advertisement.

 


State of New York, Department of Health , 2012-PER-01151 (Mar. 14, 2016)

Issue - Rejection of qualified applicants for experience requirements not listed on Form 9089; employer’s contention that the requirements were self-evident for the position rejected on the ground that the CO is not positioned to make such a determination

Decision - CO affirmed

The CO denied the application because he concluded that 5 domestic applicants had been rejected improperly. The job opportunity was for a “Research Scientist 2 Biostatistics.” Five domestic applicants were rejected because they lacked “experience with large data sets, personal or home healthcare services, Medicaid or Medicare data or SQL.” The CO noted that none of these types of experience were listed on the application. On reconsideration, the employer argued that given the nature of the position these requirements were self-evident. The CO refused to reconsider noting that the domestic applicants’ resumes demonstrated that they had sufficient training and experience to perform the core duties.

The Board (Geraghty, Calianos and McGrath) affirmed noting that the domestic applicants met the educational requirements for the position and that no specific prior experience was specified. The Board observed that while the requirements of the position might be obvious to knowledgeable individuals in the field, the CO was not positioned to make such a determination.

 


Inteliops, Inc. , 2012-PER-01099 (Mar. 25, 2016)

Issue - Actual minimum requirements - degree requirements

Decision - CO affirmed

The Board (Henley, Almanza and Davis) affirmed the denial where the application required the worker to possess a Master’s Degree, and the alien was granted that degree after he was hired. The Board rejected that argument that the reference in § 656.17(i) to training and experience did not preclude the CO from educational requirements that the alien did not satisfy.