PERM Decisions of the Board of Alien Labor Certification Appeals
August 2015

Hoffman Enclosures , 2011-PER-01754 (Aug. 5, 2015)

Issue – Choice of Newspaper

Decision – CO Reversed

The employer advertised in the Express-News in San Antonio TX. The job opportunity was located more than four hours away in Pharr TX. The CO denied the application concluding that the Express-News was not a "newspaper of general circulation in the area of intended employment.” On reconsideration the employer submitted evidence establishing that the Express-News was circulated in Pharr. The CO acknowledged the wide circulation of the Express-News but reaffirmed the denial on the ground that San Antonio was outside normal commuting distance from Pharr and thus outside the area of intended employment.

The Board (Almanza, Henley, and Johnson) reversed. The Board concluded that the CO erred in focusing only on where the newspaper was published versus whether it was circulated in the area where the job opportunity was located. Having established that the Express-News , was a newspaper of general circulation in Pharr, the employer met its responsibility to use a newspaper in the area of intended employment. The decision noted that the CO had based his decision exclusively location of publication and did not rely upon the related requirement that the employer choose the "most appropriate” newspaper and therefore the Board would not address that matter.

MPHASIS Corp. , 2011-PER-00207 (Aug. 10, 2015)

Issue - Timing of Recruitment; PWD validity period

Decision – CO Reversed

Certification was denied because the Form 9089 indicated that one of the additional recruitment steps, the use of an Employee Referral Program (ERP), began six days prior to the beginning of the PWD validity period. The employer argued in a motion for reconsideration that the ERP had been in place since 2003 and that the violation amounted to harmless error and was not "due to a substantive deficiency in recruitment methods…." The CO found that the denial was valid.

The Board (Henley, Davis and Merck) reversed. Under the decision in Karl Storz Endoscopy-America , 2011-PER-40 (Dec. 1, 2011) (en banc) an employer who does not file its application within the PWD validity period, must begin all of its recruitment within that period. The Board has recognized, however, that for some on-going recruitment activities, like an ERP, determining the start date for that recruitment may be difficult. Patni America , 2011-PER-1127 (May 15, 2012). In MPHASIS , Board concluded that despite the fact that the Form 9089 indicated that the ERP had been initiated before the effective date of the PWD, the record as a whole supported a conclusion that it had actually started later.

Lawrence P. Flanagan , 2012-PER-00828 (Aug. 10, 2015)

Issue – Proof of timely filing audit response

Decision – CO Affirmed

Certification was denied because the employer did not respond to the audit notification. The employer filed for reconsideration attaching a copy of the response and asserting it had been timely submitted. The CO refused to reconsider determining that the employer had failed to prove that the response had been timely submitted.

The Board (Henley, Davis and Merck) affirmed concluding that the attorney’s statement, standing alone, did not constitute sufficient proof of timely submission

Merck & Co., Inc. , 2012-PER-00826 (Aug. 10, 2015)

Issue - Alien qualifications at time of hire; additional evidence during reconsideration

Decision – CO Affirmed

Certification was denied because the Form 9089 did not indicate that the alien had obtained the required Doctorate degree prior to its initial hire by the employer. On reconsideration the employer submitted a copy of transcript showing that the alien had completed his course work and passed his preliminary exams before hire. The CO reaffirmed the denial concluding that the regulations forbade employers from changing their applications after filing and therefore the employer’s new evidence could not be considered.

The Board (Henley, Davis and Merck) affirmed. The Board noted, as an initial matter, that employer’s submission of the transcript was appropriate since it was provided to support a legal argument and did not purport to amend the application. Consideration of the transcript, however, did not resolve the underlying deficiency in the application since the transcript simply confirmed that the alien was awarded his Doctorate degree well after he was hired by the employer.

Goryosam Inc. , 2012-PER-00818 (Aug. 10, 2015)

Issue - Incomplete audit response – missing PWD; inadvertence as a defense

Decision – CO Affirmed

Certification was denied because the employer failed to include a copy of the PWD in its audit response. The employer sought reconsideration submitting a copy of the PWD and asserting that it had been inadvertently left out of the audit response. The CO reaffirmed the denial.

The Board (Henley, Davis and Merck) affirmed. After reviewing the applicable case law, the Board concluded that the employer’s failure to submit the PWD did constitute a substantial failure to respond to the audit thus warranting a denial. With respect to the inadvertence, the Board refused to utilize the reasoning from Luigi’s Restaurant , 2009-PER-00357 (Aug. 31, 2009) and Washington Hospital Center , 2010-PER-00720 (May 13, 2011) which suggested that deficient audit response could be cured on reconsideration. Rather the decision relied on contrary rulings in Florida Holocaust Museum , 2011-PER-02681 (July 10, 2014) and Steps Children’s Center , 2011-PER-2856 (Mar. 14, 2012) as well as the evidentiary limits contained in 20 C.F.R. § 656.24(g)(2)(ii).

Kams Automotive, Inc. , 2012-PER-00805 (Aug. 13, 2015)

Issue - Prevailing Wage validity period; correction of typos

Decision – CO Affirmed

Certification was denied because the prevailing wage validity period listed on the Form 9089 exceeded the one year maximum provided in the regulations. On reconsideration the employer contended that there was a typographical error on the 9089 and included a copy of the PWD which complied with the regulations. The CO reaffirmed the denial noting that 20 C.F.R. § 656.11(b) precludes the modification of applications after filing.

The Board (Henley, Davis and Merck) affirmed, accepting the reasoning in Rutgers, the State University of New Jersey , 2012-PER-00327 (May 21, 2014) and Sushi Shogun , 2011-PER-02677 (May 29, 2013) which held that 20 C.F.R. § 656.11(b) was added to the regulations to explicitly preclude employers from changing applications after filing even if the change merely corrects a typographical error.

SDG Post Oak, LP , 2011-PER-01576 (Aug. 17, 2015)

Issue -Job requirements in ads exceeding Form 9089; errors not under employer’s control

Decision – CO Reversed

Certification was denied because the employer’s on-line advertisement placed in supervised recruitment required experience in excess of what was described on the application. The employer, on reconsideration, arguing that the experience requirement in body of the advertisement was correct and that the erroneous information was in the header to the advertisement, which was created by the on-line host over which the employer had no control. The CO rejected this argument concluding that the employer could have previewed the ad, identified the error and had it corrected. The CO further noted that the excessive experience requirement in the header might have a chilling effect on the willingness of qualified workers to apply.

The Board (Henley, Davis and Merck) reversed. The Board initially determined that the file contained no evidence supporting the CO’s assertion that the employer could have previewed to ad before it ran. In rejecting this determination, the Board observed that in the context of supervised recruitment the employer was under tight time constraints for placing the ad. It also noted that all the other advertising was proper. The Board ultimately concluded that under the particular facts of the case "it would be fundamentally unfair to deny certification based on circumstances that could not reasonably be found to be under the Employer’s ability to prevent or cure, and where the chances are remote that the error materially impacted the recruitment effort or the CO’s ability to adjudicate the application."

Deen Marketing, Inc. , 2012-PER-00021 (Aug. 17, 2015)

Issue – Alien qualification at time of hire; correction of application on reconsideration

Decision – CO Affirmed

Certification was denied because the Form 9089 did not establish that the alien had the HS diploma required for the position. The employer had entered "N/A" in the section of the Form where the date of the alien’s completion of the required education should have been provided. On motion for reconsideration the employer argued that this was a clerical error and that the alien had completed high school in 1982. The CO affirmed the denial both on the grounds that reconsideration cannot be granted when the denial is based of disregard of a direct instruction (20 C.F.R. § 656.24(g) (3)) and on the provision forbidding the changing of applications after filing (20 C.F.R. § 656.11(b)).

The Board (Almanza, Henley and Johnson) affirmed on both grounds. The decision rejected the Employer’s argument that § 656.24(g)(3) did not apply to applications filed on-line since that section also referenced "other direct instruction" in this case the instruction on the Form requiring Section J-13 to be filled out in "yyyy" format. The Board also determined that the Employer’s submission of a new Form 9089 ran afoul of 20 C.F.R. § 656.11(b).

Chemical Abstracts Service , 2011-PER-02787 (Aug. 17, 2015)

Issue – Documentation of use of 3rd party Web site advertising

Decision – CO Affirmed

The Certification was denied because the employer did not adequately document its use of a 3rd party Web site in its recruitment. In this case, the Web site was associated with the Columbus Dispatch , the newspaper where the employer placed its print ads. The CO determined that the employer had failed establish the job opportunity was actually posted on that site. On reconsideration, the employer argued that the Columbus Dispatch bundled its ads and ads which appeared in the print edition automatically appeared on the web site. The CO rejected this argument noting that "the advertisement rate schedule submitted by the employer does not establish or confirm that the employer used one of the advertisement packages listed…"

The Board (Henley, Davis and Merck) affirmed focusing on the requirement that employers submit copies of their advertising including dated copies of any web pages which the employer failed to supply. The Board concluded that "the regulations contemplate proof of actual posting, and not merely circumstantial evidence that requires [the] drawing of assumptions or inferences."

Marathon Line N.Y., Inc. , 2012-PER-00803 (Aug. 18, 2015)

Issue – Recruitment reports in supervised recruitment

Decision – CO Affirmed

Certification was denied because the employer’s recruitment report, submitted as part of the Supervised Recruitment process, did not contain a list of the names and addresses of the all the domestic applicants. On motion for reconsideration the employer argued it did not have to provide the names and addresses because the resumes of these workers had been supplied by the CO. It also argued that the missing list was immaterial. The CO rejected these contentions.

The Board (Geraghty, Calianos and McGrath) affirmed relying on a lengthy line of cases holding that 20 C.F.R. § 656.21(e)(3) requires "a discrete statement of all U.S. applicants’ names and addresses in the body of the supervised recruitment report, even if the applicants’ resumes were forwarded by the CO." The Board rejected the employer’s materiality argument and also noted the "special scrutiny" applied to cases in Supervised Recruitment.

Doloma, Inc. , 2012-PER-00606 (Aug. 20, 2015)

Issue – Wage rate on NOF below the offered wage

Decision – CO Affirmed

Certification was denied because the wage described on the NOF ($16 per hour) was less than the offered wage identified on the Form 9089 ($15.78 - $18.00 per hour). Reconsideration was denied.

The Board (Henley, Davis and Merck) affirmed. While noting the Appeal File did not contain information concerning the wage being offered the Alien (he was working for a different employer at the time the application was filed), the Board drew the inference that the Alien was being offered the ability to earn up to $18 per hour and thus the wage range on the NOF ran afoul of the 20 C.F.R. § 656.17(f)(7) which provides that the NOF "[n]ot contain wages, or terms and conditions of employment that are less favorable than those offered to the alien."

Avnet, Inc. , 2012-PER-00188 (Aug. 20, 2015)

Issue – Travel requirements not in ads; remands to address new legal theory

Decision – Remanded to the CO

The Certification was denied because the Form 9089 contained a reference to travel (Section H-14 included the language "High Mobility required") that was not reflected in the newspaper advertising. On reconsideration the employer argued that omitting the travel requirement would likely increase the number of workers who would apply and that employer was not compelled to include all job requirements in the newspaper ads. The CO affirmed the denial concluding that "not listing the opportunity to travel in the advertisement could artificially exclude qualified U.S. workers who would otherwise apply for the position as listed on the Form 9089."

After the case was docketed, the CO moved to remand the case for the purpose of shifting his legal theory for denial from 20 C.F.R. 656.17(f)(7) — the obligation to offer domestic applicants job terms no less favorable than offered the alien — to 20 C.F.R. § 656.17(4) — the obligation for advertisements to describe any travel requirements. The Employer opposed the motion.

The Board (Henley, Davis and Merck) granted the CO’s motion. The Board relied heavily on the reasoning in the pre-PERM ruling in Daisy Schimoler , 1997-PER-218 (May 3, 1999) (en banc), which holds that the Board may remand cases so that the CO can address a new issue raised by the Board. The Board quoted the decision in International Division, Inc. , 2012-PER-553 (June 21, 2012) which noted that such remands were appropriate "where there appears to have been a clear violation of the regulations"

DGN Technologies Inc. , 2012-PER-00854

Issue – Proof of web advertising-handwritten date

Decision - CO reversed

Certification was denied because the copies of the web posting contained handwritten notations purporting to establish when the ads ran, which the CO found insufficient.

The Board (Henley, Merck and Davis) reversed relying on the reasoning from an earlier decision involving the same employer, DGN Technologies, Inc. , 2011-PER-1366 (July 31, 2015), which held that the requirement of 20 C.F.R. § 656.17(e)(1)(ii)(B) for "dated copies" of job posting did not require that the dates be electronically generated. The decision noted that noted that there had been a number of other cases from the same employer where denials on the same ground had been affirmed, but respectfully disagreed with those decisions.

Golden Biz, Inc. , 2012-PER-00830 (Aug. 21, 2015)

Issue – Complete response audit – missing resumes

Decision – CO affirmed

The application was denied because in response to the audit notification, the employer failed to supply resumes of two domestic applicants. The employer asserted the resumes had been misplaced. The employer subsequently secured the resumes and submitted them with its motion for reconsideration. The CO refused to consider them because of the evidentiary bar in 20 C.F.R. § 656.21(g)(2), and affirmed the denial.

The Board (Henley, Merck and Davis) affirmed, observing that the employer had reported the loss on the resumes in the audit response but did not make any effort seek an extension of time for its audit response in order to secure them.

Dream Enterprises Inc. , 2012-PER-01157 (Aug. 24, 2015)

Issue – Recruitment Report not signed be employer

Decision – CO Affirmed

Certification was denied because the attorney rather that the employer signed the recruitment report. On reconsideration the employer acknowledged the error but argued it was harmless because there were no applicants for the position and thus there was nothing to report. The CO rejected this argument.

The Board (Henley, Merck and Davis) affirmed, noting that one of the principle purposes of requiring the employer signature was to ensure that the employer "personally be involved in the statements averred to in the report and essentially vouch for the accuracy of those statements." The decision also noted the special scrutiny applied to cases in supervised recruitment.