April 2016
The Peddie School , 2012-PER-01042 (Apr. 1, 2016)
Issue - On-campus recruiting; internal posting at high school does not qualify
Decision - CO affirmed
The Board (Romero, Daly and Price) affirmed a denial where the employer had failed to document the on-campus recruiting it identified as one of its additional recruitment steps. The CO had concluded that the school’s internal posting did not constitute on campus recruiting since the employer was high school not a college.
C2S Technologies, Inc. , 2012-PER-02911 (Apr. 6, 2016)
Issue - Recruitment during PWD validity period
Decision - CO affirmed
The Board (Henley, Davis and Merck), relying on Karl Storz Endoscopy-America , 2011-PER-00040 (Dec. 1, 2011) (en banc), affirmed a denial where the employer did not begin its recruitment during the PWD validity period.
Latina Radio , 2012-PER-01780 (Apr. 6, 2016)
Issue - Unsigned recruitment report
Decision - CO affirmed
The Board (Henley, Davis and Merck) affirmed a denial where the employer submitted an unsigned recruitment report. The employer’s submission of a signed report along with its motion for reconsideration ran afoul of 20 C.F.R. § 656.24(g).
IT Cats, LLC , 2012-PER-01762 (Apr. 6, 2016)
Issue - Unsigned 9089 submitted in responding to audit
Decision - CO affirmed
The Board (Henley, Davis and Merck), applying the analytical framework provided by SAP America, Inc. , 2010-PER-1250 (Apr. 18, 2013) (en banc), affirmed the CO’s determination that the employer’s failure to submit a signed copy of the 9089 in its audit response constituted a substantial failure to comply with the audit request.
AA Hodde
, 2012-PER-01813 (Apr. 13, 2016)
Horizon Science Academy-Cincinnati
, 2012-PER-01788 (Apr. 13, 2016)
Kiran M. Dewan CPA PA
, 2012-PER-01927 (Apr. 26, 2016)
Issue - Content of the job order; Symantec
Decision - CO reversed
The Board (Henley, Almanza and Davis) relying on Symantec Corp. , 2011-PER-01856 (July 30, 2014 (en banc), reversed denials which were predicated on deficiencies in the job order.
DGN Technologies, Inc. , 2012-PER-01873 (Apr. 13, 2016)
Issue - Content of web advertising; geographic area of employment not stated; whether job clearly open
Decision - CO reversed
The CO denied the application because the web site advertising did not contain the geographic area of employment in violation of 20 C.F.R. §§ 656.10 (c)(8) and 656.17(f)(4).
The Board (Henley, Almanza and Davis) reversed the CO on both grounds. Reliance on § 656.17(f) was precluded by Symantec Corp. , 2011-PER-01856 (July 30, 2014 (en banc). In addressing the § 656.10(c)(8) issue, the Board applied the principles described in SWDWII, LLC , 2012-PER-887 (Jan. 29, 2016) and The China Press , 2011-2924 (Aug. 20, 2015), vacated on other grounds , by order of Nov. 30, 2015 and concluded that the advertisement did not so misinform, or fail to inform, potential applicants about the job opportunity to support a finding that the job was not clearly open.
Cintel Systems, Inc.
, 2012-PER-01964 (Apr. 14, 2016)
Sumo Hibachi Steakhouse & Sushi Bar
, 2012-PER-03065 (Apr. 14, 2016)
Issue - Failure to supply PWD in audit response
Decision - CO affirmed
The Board (Geraghty, Calianos and McGrath) affirmed denials where the employer failed to supply the PWD in its audit response. Efforts to correct the deficiency on reconsideration ran afoul of the evidentiary restrictions contained in 20 C.F.R. § 656.21(g).
Century Dental Lab, Inc. , 2012-PER-03030 (Apr. 14, 2016)
Issue - Adequacy of recruitment report
Decision - CO affirmed
The Board (Geraghty, Calianos and McGrath) affirmed a denial where the employer failed to supply a description of the recruitment steps. The decision relied on the Simply Soup , 2012-PER-00940 (Jan. 13, 2015) (en banc) that reaffirmed the employer’s obligation to fully comply with the requirement of 20 C.F.R. § 656.17(g). The panel found that merely supplying documentation of the recruitment was insufficient.
International Trade Imports LLC , 2012-PER-02322 (Apr. 21, 2016)
Issue - Documentation of radio advertisement; new evidence submitted with reconsideration
Decision - CO affirmed
The Board (Henley, Almanza, and Merck) affirmed a denial where the employer failed to submit the text of its radio advertising with its audit response. The employer’s effort to submit the missing information with its request for reconsideration ran afoul of 20 C.F.R. § 656.21(g).
Maritech Commercial, Inc. , 2012-PER-01804 (Apr. 21, 2016)
Issue - Wage rate on NOF below the prevailing wage
Decision - CO affirmed
The Board (Henley, Almanza and Merck) affirmed a denial where the NOF described a wage range below the prevailing wage listed on the Form 9089. Its effort to submit what it claimed was the correct NOF with its request for reconsideration ran afoul of 20 C.F.R. § 656.21(g).
Case Farms Processing, Inc. , 2012-PER-01797 (Apr. 21, 2016)
Issue - Incomplete recruitment report; failure to list all applicants
Decision - CO affirmed
The Board (Henley, Almanza and Davis) affirmed a denial where the employer submitted a recruitment report that did not encompass all the workers for whom resumes were provided. Its effort to submit a corrected recruitment report with its request for reconsideration ran afoul of 20 C.F.R. § 656.21(g).
VLS IT Consulting, Inc. , 2012-PER-01769 (Apr. 26, 2016)
Issue - Employer’s address not in Web posting; job not clearly open
Decision - CO reversed
The Board (Henley, Almanza and Merck) reversed a denial where the CO determined that the Web ad did not include the employer’s address. The Board analyzed the denial under 20 C.F.R. § 656.10(c)(8). The Board concluded that the missing information did not so misinform or fail to inform domestic applicants as to justify a finding that the job was not clearly open. The decision also noted that the job location could be easily found through a hyperlink on the web site.
Erik Sussman , 2012-PER-01339 (Apr. 28, 2016)
Issue - U.S. applicant rejection; implicit requirements; background checks
Decision - CO affirmed
The CO denied the application on the grounds that the employer had improperly rejected a qualified U.S. applicant. The employer had rejected the applicant because a “background check on the applicant included a disclosure that resulted from a customer complaint at her previous employment. ” The CO found the explanation unacceptable since the application did not list passing a background check as precondition for the position.
The Board (Daly, Romero and Price) affirmed rejecting the employer’s contention that background checks were “implicit” in the industry citing the decision in New York City Dep’t of Education , 2012-PER-03049 (Dec. 21, 2015) which concluded that the PERM process essentially precluded the existence of implied requirements since it is not feasible for the CO to investigate the circumstances of each employer’s business. The Board also refused to consider additional arguments concerning the reason for the rejection where these arguments were raised for the first time in the motion for reconsideration.
St. Landry Parish School Board , 2012-PER-01135 (Apr. 28, 2016)
Issue - Proof of web site advertising; CO can require proof of content of the ad
Decision - CO affirmed
The CO denied the application because the employer failed to supply adequate documentation of its web site advertising. On reconsideration the employer submitted an affidavit from an account executive at the web site affirming that the employer had posted an ad for a French teacher. The CO considered the affidavit, but deemed it inadequate since it did not establish the full content of the advertisement. The Board (Henley, Almanza and Merck) affirmed. The decision noted that 20 C.F.R. § 656.17(e)(1)(ii)(C) requires employers to document web advertising with “dated copies of the pages. ” While some decisions have acknowledged the need for flexibility in the assessment of the adequacy of documentation, “such alternative documentation must, however, be reasonably equivalent to the primary form of proof specified in the regulation.” The decision also cited Spring Branch Independent School District , 2012-PER-1160 (Mar. 10, 2016) for the proposition that the CO can demand proof of the actual content of the web ad. The Board concluded that the affidavit did not establish the full content of the ad and therefore was insufficient.
Calcasieu Parish School System , 2012-PER-01096 (Apr. 28, 2016)
Issue - Proof of web site advertising
Decision - CO affirmed
The Board (Henley, Davis and Merck) affirmed a denial where the employer failed to supply documentation to prove its web site advertising. Its effort to correct this deficiency on reconsideration ran afoul of the evidentiary restrictions contained in 20 C.F.R. § 656.21(g).