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


Valassis Direct Mail, Inc. , 2012-PER-01823 (June 1, 2016)

Issue - Wage offer not in the NOF submitted with audit response; submission of different NOF with motion for reconsideration; rejection of Luigi’s Restaurant

Decision - CO affirmed

The Board (Henley, Almanza and Merck) affirmed a denial where the NOF submitted with the audit response did not contain a wage offer. On reconsideration the employer submitted what it claimed to be the NOF that had actually been posted and which contained the wage rate, and asked that it be considered citing Luigi’s Restaurant , 2009-PER-00357 (Aug. 31, 2009) and Core Solutions, Inc. , 2010-PER-01013 (Aug. 22, 2011). The Board, citing Simply Soup , 2009-PER-00940, slip op. at 7 and 10 (Jan. 13, 2015) (en banc), concluded that the submission of the new NOF was barred by 20 C.F.R. § 656.24(g)(2). The Board, citing Sandy Run Farm & Nursery LLC , 2011-PER-02305, slip op. at 3 (June 5, 2014), stated that the reasoning in Luigi’s and Core Solutions had been rejected.


Scenic Landscaping LLC , 2012-PER-00989 (June 1, 2016)

Issue - Substantial failure to provide audit response materials; proof of contact for applicants; phone logs

Decision - CO affirmed

The Board (McGrath, Geraghty and Calianos) affirmed a denial where the audit response did not contain the phone logs that the CO had requested in the audit letter. Applying SAP America Inc. , 2010-PER-1250 (Apr. 18, 2013) (en banc), the panel found that “the CO’s request for documentation evidencing contact with the U.S. applicants reasonable, and the Employer’s failure to comply with this request is material enough to constitute a substantial failure. Documentation evidencing contact with U.S. applicants should be retained by the Employer. - Evidence establishing the Employer’s contact with interested U.S. applicants during the recruitment process is necessary for the CO to consider in determining whether U.S. applicants were properly rejected for a job opportunity. Thus, the CO’s request was reasonable as documentation of contact with interested U.S. applicants was ‘tailored to the CO’s review’ of the Employer’s application and ‘reasonably available’ to the Employer. Accordingly, we find that CO?s denial of certification for a substantial failure to comply with the audit under section 656.20(b) was appropriate.” Slip op. at 4. The panel rejected the Employer’s argument on motion for reconsideration that the applicants in question were unqualified on the face of their resumes was “irrelevant to the issue in this case.” Id . at 4, n.3.


Cessna Aircraft Co. , 2012-PER-03663 (June 1, 2016)

Issue - Proof of Employee Referral Program (ERP)

Decision - CO affirmed

The Board (Henley, Almanza and Davis) affirmed a denial based on the employer’s failure to adequately document its use of an employee referral program (ERP) for recruitment. In its audit response, the Employer had presented as proof of its ERP, an intranet copy of its notice of filing (NOF) which specified that the job opportunity was eligible for a “Level 1 Bonus” in the ERP. Citing Summit Helicopters , 2011-PER-02300 (June 13, 2015), the Board affirmed the CO’s finding that the statement in the NOF referencing the availability of a “Level 1 Bonus” did not adequately establish the specific incentives being offered as part of the ERP.


Avepoint, Inc. , 2012-PER-02286 (June 7, 2016)

Issue - Employer’s name in the NOF

Decision - CO affirmed

The Board (Henley, Almanza and Davis) affirmed these denials where the employer’s name was not included in NOF. In Avepoint , the employer cited to Luigi’s Restaurant , 2009-PER-00357 (Aug. 31, 2009), for the proposition that an inadvertent mistake is excusable. The panel noted that the panel in Luigi’s Restaurant had limited its decision to the precise facts and circumstances of that case, and that subsequent BALCA panels have consistently rejected the analysis in Luigi’s Restaurant . See Sandy Run Farm & Nursery LLC , 2011-PER-02305, slip op. at 3 (June 5, 2014) (listing cases where the panel has rejected the analysis in Luigi’s Restaurant ). The panel found two panel decisions cited by the employer to be inapposite, Hawthorn Suites Golf Resorts, LLC , 2009-PER-00200 (Jan. 12, 2011), having been decided under an older version of the regulations, and Subhashini Software Solutions , 2007-PER-00043 (Dec. 18, 2007), being based on lack of notice of the requirement at issue, whereas the regulations specifically require the employer’s name to be stated on a NOF. Finally, the panel rejected the Employer’s citation of Aero Parts Mgmt. , 2011-PER-00704 (May 25, 2012), finding that it was in no way supportive of the Employer’s position.

Also affirming denials based on failure of the NOF to state the name of the employer:


Burns Bros. , 2012-PER-01934 (June 1, 2016)

Issue - Proof of newspaper advertising; new evidence during reconsideration

Decision - CO affirmed

The Board (Henley, Almanza and Davis) affirmed a denial where the audit response did not contain proof of the newspaper advertising. The employer’s belated submission of the missing documentation ran afoul of 20 C.F.R. § 656.24(g) and 656.26(a).


Dilesse & Demeglio LLC , 2012-PER-01438 (June 2, 2016)

Issue - Wage on NOF lower than wage listed on Form 9089

Decision - CO affirmed

The Board (Rosen, Johnson and Markley) affirmed a denial where the wage identified in the NOF ($34,240) was below the wage listed on the Form 9089 ($34,240 to $34,250). The fact the wage contained in the in the NOF was above the prevailing wage did not cure the 20 C.F.R. § 656.17(f)(7) violation, which had not been addressed by the employer in its response to the CO’s denial .


Sky Foundation , 2012-PER-01907 (June 7, 2016) (radio ad did not mention travel requirement)

First Tek Technologies, Inc. , 2012-PER-01980 (June 8, 2016) (SWA job order did not list primary worksite or travel requirement)

Softpath System, LLC , 2012-PER-03118 (June 9, 2016) (advertisement with private recruitment firm listed wage higher than the wage offer on the Form 9089)

Naughty Dog, Inc. , 2012-PER-02169 (June 21, 2016) (advertisement on corporate website did not identify job location)

Zosima Rillera , 2012-PER-03629 (June 27, 2016) (SWA job orde4r did not list live-in requirements)

Issue - Symantec ; § 656.17(f) does not regulate the content of SWA job orders or additional professional recruitment steps

Decision - CO reversed

The Board (Henley, Almanza and Merck) reversed several denials based on CO’s application of the advertising content provisions of 20 C.F.R. § 656.17(f) to recruitment in SWA job orders and additional professional recruitment steps. The panel relied on relied on Symantec , 2011-PER-01856 (July 30, 2014)(en banc), in which the Board held that § 656.17(f), by its own terms, only applies to advertisements in newspapers or professional journals.


Merkle Inc. , 2012-PER-01815 (June 7, 2016)

Issue - Failure to disclosure option to work at home

Decision - CO affirmed

The Board (Henley, Almanza and Davis) affirmed a denial where the NOF failed to disclose that the employment opportunity did not require the worker to live at any particular location. Relying on the reasoning contained in JDA Software , 2011-PER-02661 (Sept. 27, 2012), the Board agreed with the CO that the employer violated 20 C.F.R. § 656.17(f)(7) by not disclosing on the NOF that job opportunity could be performed from home. The decision rejected the employer’s argument that it was not required to advertise all the terms of employment based on OFLC FAQ guidance. The panel stated that the “the FAQ guidance does not relieve an employer from its obligation to ensure that the NOF does not contain terms and conditions of employment that are less favorable than those offered to the alien pursuant to 20 C.F.R. § 656.17(f)(7).” Slip op. at 3. The Board also rejected the employer’s reliance on Emma Willard School , 2011-PER-01101 (Sept. 28, 2011), noting that in the instant case the ability to work from home was more than a benefit but represented a condition of employment that had been tailored to the alien’s home address.


Blue Wolfe Group, LLC , 2012-PER-03123 (June 16, 2016)

Issue - Failure to disclose option to work at home

Decision - CO affirmed

The Board (Henley, Almanza and Davis) affirmed a denial where the NOF failed to disclose that the employment opportunity did not require the worker to live at any particular location, relying on the reasoning contained in JDA Software , 2011-PER-02661 (Sept. 27, 2012). The panel stated: “applicants are not restricted to living in the same geographic area as the Alien; an applicant is afforded much more flexibility and could work from anywhere in the U.S. so long as he/she could perform the job duties from the location just as the Alien does from her residence. Because the NOF failed to disclose a more favorable geographic condition, we affirm the CO’s denial of certification.” Slip op. at 3 (footnote omitted).


Palm Cafe Restaurant , 2012-PER-01446 (June 7, 2016)

Issue - Bona fide job opportunity; alien control

Decision - CO reversed

The Board (Markley, Johnson and Bergstrom) reversed the denial that was based on the CO’s determination that the job opportunity was not bona fide because of the alien’s connections to the employer. The decision applied the multi-factor test originating in Modular Container Systems , 1989-INA-00228 (July 16, 1991) ( en banc ), and which is referenced in the preamble to PERM regulation. The decision concluded that the alien did not exercise any control over the business operation and was not involved financially in the employer’s business. The decision also noted that the employer had recruited in good faith and that no domestic applicants had applied.


Netflix , 2012-PER-02315 (June 8, 2016)

Issue - Alien not qualified for the job opportunity

Decision - CO affirmed

The Board (Henley, Almanza and Merck) affirmed a denial where the Form 9089 did not demonstrate that the alien possessed sufficient experience to qualify for the position. The employer required 72 months of experience, but only listed 70 months of qualifying experience for the alien. The decision rejected the employer’s efforts to address the deficiency during reconsideration noting that 20 C.F.R. § 656.11(b) precluded the correcting of applications.


Palacios Flower Design , 2012-PER-01375 (June 9, 2016)

Issue - Proof of advertising; affidavit of publication did not include raised seal

Decision - CO affirmed

The Board (Romero, Daly and Kennington) affirmed a denial where the employer did not supply proper proof of the placement of its newspaper ads. The CO denied the application because the employer did not submit an affidavit of publication with its audit response. The employer claims it had submitted such an affidavit of publication and included a copy of it with its reconsideration request. The CO refused to accept it because it did not contain the raised seal that was necessary for its validity. The Board affirmed despite the fact that the employer supplied tear sheets documenting the placement of the advertisements.


Renters Legal Liability, LLC , 2012-PER-01341 (June 9, 2016)

Issue - Proof of online component of newspaper advertising as directed in a supervised recruitment report instructions letter

Decision - CO affirmed

The Board (Romero, Daly and Kennington) affirmed a denial where the employer failed to provide documentation of the online component of its newspaper advertising as directed in a supervised recruitment report instructions letter. Its effort to cure this deficiency during reconsideration ran afoul of 20 C.F.R. § 656.24(g)


Cisco Systems, Inc. , 2012-PER-01179 (June 9, 2016)

Issue - Alien not qualified for the job opportunity; due process; CO inquiry regarding qualification of the alien

Decision - CO affirmed

The Board (Henley, Almanza and Merck) affirmed a denial where the Form 9089 did not establish that the alien had the now required 24 months of experience prior to being hired by the employer. The decision rejects a claim that DOL lacked the legal authority to inquire into the alien’s qualification, see Muse Design Inc. , 2012-PER-1088 (Jan. 15, 2016) (citing Madany v. Smith , 696 F.2d 1008, 1012 (D.C. Cir. 1983)). In the instant case, the alien’s qualifications were relevant to the question of whether the Form 9089 reflected the employer’s actual minimum requirements for the position. The decision also rejected the employer’s argument that the CO’s refusal to allow modifications to the application violated due process and fundamental fairness because the proposed modifications were supported by evidence that demonstrate the employer was in actual compliance with regulations. The panel decision contains a several page discussion of due process under PERM, and a finding that the CO’s processing of the application in this matter was in compliance with the regulations.


NSN, LLC , 2012-PER-01672 (June 14, 2016)

Color Tex Inc. , 2012-PER-01651 (June 14, 2016)

Issue - Failure to supply alien’s resume as required by recruitment report instructions letter

Decision - CO affirmed

The Board (McGrath, Geraghty and Calianos) affirmed denials based on the employer’s failure to supply the alien’s resume which had been requested in the recruitment report instruction letter. In NSN , the employer’s effort to supply the document with its motion for reconsideration ran afoul of 20 C.F.R. § 656.24(g).


Hampton Chutney Co. Inc. , 2012-PER-01645 (June 15, 2016)

Issue - Incomplete recruitment report

Decision - CO affirmed

The Board ( McGrath, Geraghty and Calianos) affirmed a denial where the recruitment report did not contain a list of the recruitment steps undertaken as required by 20 C.F.R. § 656.17(g)(1). See Simply Soup Ltd. , 2012-PER-940 (Jan. 13, 2015) (en banc). The panel noted that the recruitment report also omitted several other elements required by § 656.17(g)(1).


Ohio Farmers Insurance Co. , 2015-PER-00634 (June 21, 2016)

Issue - Experience required on NOF less than on application; understatement of requirement might lead applicants to think they were overqualified

Decision - CO affirmed

The Board (Henley, Davis and Merck) affirmed a denial where the application indicated that job required 36 months of experience whereas the NOF indicated that only18 month was necessary. The CO had found that this discrepancy rendered the job description not specific enough comply with 20 C.F.R. § 656.17(f)(3). The decision agreed with the CO that the understatement of the required experience might dissuade some applicants from applying because they might think they were overqualified. The panel also found that the NOF would not have informed interested persons who might have information bearing on the application that the employer could reject applicants who seemed qualified based on the experience requirements stated on the NOF. The decision rejected the employer’s reliance on ETEAM , 2013-PER-00424 (Dec. 1, 2015), noting that in that case the NOF had simply failed to contain some the detailed information found in Section H-14 of the application whereas in the present case the NOF contained language that was inconsistent with the NOF.


Hanover Apartments , 2012-PER-02145 (June 21, 2016)

Issue - Employer’s name in newspaper advertisement

Decision - CO affirmed

The Board (Henley, Davis and Merck) affirmed a denial where the employer’s name did not appear in the newspaper advertising as required by § 656.17(f)(1).


Purchasing Partners Inc. , 2012-PER-01663 (June 21, 2016)

Issue - Infeasibility to train; new evidence on reconsideration

Decision - CO affirmed

The Board (McGrath, Geraghty and Calianos) affirmed a denial where the alien gained some of his qualifying experience with this employer and the employer failed to demonstrate that it was infeasible to train a domestic worker. The application was denied without an audit and the employer contended that under 20 C.F.R. § 656.24(g)(2)(ii) it was precluded from introducing evidence on that issue because the documentation did not exist at the time the application was filed. The Board rejected that argument observing that the decision in Denzil Gunnels , 2010-PER-00628 (Nov. 16, 2010) established the principle that § 656.24(g) needed to be given a broader interpretation in order to ensure that employers be given a fair opportunity to submit information to rebut a denial.


Citrix Systems, Inc. , 2012-PER-03216 (June 27, 2016)

Issue - CO’s address not in the NOF

Decision - CO affirmed

The Board (Henley, Davis and Merck) affirmed a denial where the NOF submitted by the employer in its audit response did not contain the CO’s address. The decision, relying on § 656.24(g)(2) rejected the employer’s efforts to submit what the employer alleged was the correct NOF and also affirmed the CO’s refusal to accept affidavits to demonstrate that a different, compliant NOF was actually posted, since this would have been part of the audit retention file and the employer had the opportunity to submit it with the audit response.


IT & Ebusiness Consulting Services Inc. , 2012-PER-03071 (June 27, 2016)

Issue - Advertising during the PWD validity period

Decision - CO affirmed

The Board (Henley, Davis and Merck) affirmed a denial where the employer began recruiting before the beginning of the PWD validity period and filed its application after it ended. The Board rejected the employer’s effort to rely on the panel decision in Horizon Computer Servs. , 2010-PER-00746 (May 25, 2011), which was superseded by the en banc decision in Karl Storz Endoscopy-America , 2011-PER-00040 (Dec. 1, 2011).


Integrated Flow Solutions, LLC , 2012-PER-02303 (June 26, 2016)

Issue - Failure to submit signed Form 9089 as directed by audit notification; no violation of due process despite the fact that the CO’s first cited the precise regulation at issue in the transmittal letter, where the denial letter described the regulatory violation, and the employer addressed that issue in its request for reconsideration

Decision - CO affirmed

The Board (Henley, Barto and Davis) affirmed the denial where the employer failed to submit a signed copy of the Form 9089 with its audit response. The Board agreed with the employer’s argument that the regulation at 20 C.F.R § 656.17(a) only requires an employer to sign the Form 9089 upon certification, but nonetheless affirmed the denial under 20 C.F.R. § 656.20(b), applying the SAP America, Inc. , 2010-PER-01250 (Apr. 18, 2013) (en banc), test for documentation whose retention is not mandated by the regulation. The Board also concluded that although the CO’s first direct citation of § 656.20(b) was in the transmittal letter to the Board, because “[a]lthough the CO did not specifically mention § 656.20(b) in his denial letter, the narrative portion of the ‘Denial Reason’ did state that the Employer had failed to provide all the documentation requested by the CO in accordance with 20 C.F.R. § 656.20” and because “the Employer acknowledged in its request for reconsideration that the actual basis for the denial included § 656.20 and argued that the CO did not have the authority to require submission of Form 9089 with original signatures during the audit process.” Slip op. at 4.


Basso Landscaping, Inc. , 2012-PER-02287 (June 27, 2016)

Issue - Recruitment report signed by attorney

Decision - CO affirmed

The Board (Henley, Davis and Merck) affirmed a denial where the employer’s attorney rather than the employer signed the recruitment report in violation of the plain language of § 656.10(b)(2)(i)-(ii). The decision also noted that a letter signed by the employer and submitted with the audit response was inadequate since it did not contain all the elements required to be included the recruitment report.


Anthony Kirk , 2012-PER-02285 (June 27, 2016)

Issue - Failure to submit recruitment report

Decision - CO affirmed

The Board (Henley, Barto and Davis) affirmed a denial where the employer failed to submit a recruitment report along with its audit response. The employer’s efforts to cure the deficiency during reconsideration ran afoul of 20 C.F.R. § 656.24(g)


California Knives & Sharpening , 2012-PER-02440 (June 30, 2016)

Issue - Advertising outside PWD validity period

Decision - CO affirmed

The Board (Henley, Barto and Merck) affirmed a denial where the employer began recruiting prior to the commencement of the PWD validity period and filed its application after the period expired. See Karl Storz Endoscopy-America , 2011-PER-00040, slip op. at 16 (Dec. 1, 2011) (en banc).


Kyyba, Inc. , 2012-PER-02841 (June 30, 2016)

Issue - Web site ads did not identify employer; Symantec ; job not clearly open

Decision - CO reversed

The Board (Henley, Davis and Merck) reversed a denial where the CO found that the employer’s website ad did not identify the employer. The CO relied both 20 C.F.R. § 656.17(f)(7) and 656.10(c)(8). The Board held that CO’s reliance on § 656.17(f) was precluded by Symantec . With regard to the § 656.10(c)(8) ground, the Board discussed the case law concerning the use of that section, noting that generally such a violation required a finding that advertising in question misinformed or failed to inform workers of the job opportunity. The Board found that standard had not been met here. Likewise, the Board noted a reluctance to rely on § 656.10(c)(8) where a more specific regulation governed the activity in question. In this case § 656.17(1)(ii)(C) directly governs the sufficiency of job search website documentation.