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


Town and Country Children’s Montessori, Inc. , 2012-PER-03624 (Oct. 6, 2016)

Issue - Proof of timely submission of application; due dates falling on Saturday

Decision - CO reversed

The CO denied the application because the job order was placed more than 180 days before the application was filed. On motion for reconsideration the employer argued that the 180th day fell on a Saturday and therefore the actual deadline should extend to Monday—and that, in any case—the application was sent by overnight mail on the Thursday before and should been delivered on Friday. The CO reaffirmed the denial noting that the employer could have chosen to file the application earlier and that it could have chosen to file on line.

The Board (Henley, Almanza and Davis) reversed. Initially the panel rejected the Employer’s effort to rely on the OALJ Rules of Practice and Procedure which provides that deadlines which fall on Saturday or Sunday are extended to Monday, noting that those rules do not apply to filings made to the CO and that online filing could have been accomplished at any time. The decision, however, accepted the Employer’s argument that it had complied with the filing deadline by sending in the application by overnight mail which was scheduled to be delivered on Friday. The decision distinguished earlier cases which had rejected that argument, noting that in those cases the employer had merely asserted the document had been sent by overnight courier whereas here the Employer supplied proof.

[Editor's note: This decision may be partly inconsistent with Caf- Vallarta , 2007-PER-00029 (June 12, 2007), insofar as that panel held that under - 656.17(c), the filing date for a mailed application is the date the CO stamps it as received, not the postmark date.]


Kelly Group Enterprises Corp. , 2012-PER-02324 (Oct. 6, 2016)

Issue - New information about grounds for rejection of U.S. applicant may be submitted with reconsideration request where recruitment report was facially adequate

Decision - CO affirmed

The CO denied the application because he concluded that the language in the recruitment report describing the grounds for rejecting the domestic applicants was too general. On motion for reconsideration, the Employer supplied a more detailed explanation. The CO reaffirmed the denial concluding that he could not consider the additional information concerning the grounds for rejecting this applicants based the evidentiary bar contained in 20 C.F.R. § 656,21(g)

The Board (Henley, Barto and Hillson) concluded that the CO had erred in refusing to consider the additional information contained in the reconsideration request, noting that the initial recruitment report was facially adequate. While the CO was free to seek clarification, such a determination constituted a new issue to which the employer was entitled to respond. The panel then proceeded to evaluate the new information and conclude that the domestic applicant had been improperly rejected.


HTC Global Services, Inc. , 2012-PER-02084 (Oct. 6, 2016)

Issue - Documentation of participation in job fair; BALCA panel accepts that evidence as a whole established participation

Decision - CO reversed

The Board (Henley, Barto and Merck) reversed the CO concluding that the Employer had adequately documented its participation in a job fair. “We recognize that the CO may be correct in finding that no single piece of the documentation establishes the Employer’s participation in the job fair. However, all of the evidence in the Employer’s audit response of communications with the job fair sponsor company leading up to the job fair taken together with the recruitment report, which provided that approximately 40% of the applicants for the job opportunity were sourced from the job fair, leads to a conclusion that the Employer did, in fact, recruit at the job fair.”


Aldana & Associates, PSC, Ltd. , 2012-PER-01224 (Oct. 6, 2016)

Issue - Incomplete audit response; documents allegedly lost by CO; presumption of regularity

Decision - CO affirmed

The Board (Henley, Barto and Merck) affirmed a denial where the Employer did not respond fully to the audit. The panel rejected the Employer’s argument that the documents had been submitted but had been lost by the CO. First, the panel found the argument that the CO lost the document in question had been first raised on appeal, and cited caselaw ruling that the Board permits general legal argument in briefs, but will not consider wholly new arguments not made before the CO. Even assuming that argument had been timely presented, the panel noted that the presumption of regularity argued against readily assuming that the CO had lost the documents. Moreover, in the instant case, the record suggested that the Employer submitted the wrong document with its audit response rather than it having submitted the correct document which the CO then lost.


Jamshid Ehsani , 2012-PER-02129 (Oct. 12, 2016)

Issue - Experience required on application not reflected on PWD

Decision - CO affirmed

The Board (Geraghty, Calianos and Sutton) affirmed a denial where the PWD provided by the SWA did not reflect the two years of experience that was stated in the application form. The decision rejected the Employer’s argument that its letter to the SWA requesting the PWD had included the required experience. “The CO rejected the Employer’s apparent attempt to blame the SWA for any discrepancy between the PWD and the job requirements listed in the Form 9089, noting that it is the Employer’s responsibility to ensure that a PWD is accurate. We agree.”


Aptek Solutions Inc. , 2013-PER-00193 (Oct. 21, 2016)

Issue - Incomplete audit response found not to be a “substantial failure” under § 656.20(b) where the CO’s audit notification letter was missing the final page

Decision - CO reversed

The CO denied the application because the employer did not respond to the third item in the audit request. On motion for reconsideration the Employer argued that the final page of audit letter had not been supplied. The Employer acknowledged that it may have been negligent in not noticing that the page was missing. The CO affirmed the denial on reconsideration.

The Board (Henley, Almanza and Davis) reversed. The decision relied upon the affidavit from the Employer president stating that he had not noticed that third of the audit letter was missing. The panel concluded that the “preponderance of the evidence” supported a conclusion that the employer’s failure to fully respond to the audit resulted from the CO’s failure to supply to complete audit notification letter and, in that context, there was no “substantial failure to provide - documentation” so as to support a violation of 20 C.F.R. § 656.20(b).


Norman W. Fries, Inc. , 2012-PER-03743 (Oct. 21, 2016)

Issue - Job not clearly open based on SWA job order containing a wage lower than the wage offer on the Form 9089

Decision - CO affirmed

The Board (Henley, Barto and Davis) affirmed a denial where the job order contained a wage lower than that offered to the alien on the application form. The CO had denied in reliance on both 20 C.F.R. §§ 656.17(f)(7) and 656.10(c). While the Symantec decision prevented reliance on § 656.17(f), the panel agreed that the Employer’s actions rendered the job not clearly open to domestic workers since the job order affirmatively mischaracterized the position by understating the wage.


Tyrrell Limited , 2012-PER-01920 (Oct. 21, 2016)

Issue - Bona fide job opportunity; alien influence and control; application of Modular Container ’s totality of the circumstances test; employer’s good faith compliance as a significant factor

Decision - CO reversed

The Board (Henley, Almanza and Guthridge) reversed a denial despite the Alien being the son of the owner of a nine person company. Applying the multifactor test derived from Modular Container Systems, Inc. , 1989-INA-228 (July 16, 1991) (en banc), the panel concluded that the totality of the evidence supported the conclusion that a bona fide job opportunity existed. In several places the decision relied upon the Employer’s good faith compliance with its recruiting obligations as a significant component of the analysis.


Amneal Pharmaceuticals LLC , 2012-PER-03266 (Oct. 21, 2016)

Issue - Documentation of placement of website advertisement; statement of consultant that is not in form of affidavit or under penalty of perjury

Decision - CO affirmed

The Board (Henley, Barto and Hillson) affirmed a denial based on the Employer’s failure to adequately document the placement of an advertisement on its website. The decision largely turned on a letter from the Employer’s consultant who explained how the documentation of the placement could be established based on the operation of the Employer’s website. The panel rejected the argument noting that the fact that “the marketing consultant did not provide his statement in the form of an affidavit or under penalty of perjury is a critical factor in our analysis.”


Johnman U.S.A., Inc. , 2012-PER-03149 (Oct. 21, 2016)

Issue - Bona fide job opportunity; alien influence and control; close familial relationship; application of Modular Container ’s totality of the circumstances test

Decision - CO affirmed

The Board (Henley, Davis and Guthridge) affirmed a denial based on the Alien’s relationship with the sponsoring employer. The panel applied the multifactor test derived from Modular Container Systems, Inc. , 1989-INA-228 (July 16, 1991) (en banc), while it determined that a number of the factors weighed in favor of the Employer it ultimately concluded that the Alien’s close familial relationship with both the CEO and the sole shareholder as well as his role in the HR department overcame them and warranted a denial.


Lifehouse Touring, Inc. , 2012-PER-02653 (Oct, 26, 2016)

Issue - Documentation of use of campus placement offices; documentation that employer contracted with private company to supply advertisements to campus placement offices insufficient; lack of documentation that advertisements had actually been supplied to those offices

Decision - CO affirmed

The Board (Henley, Barto and Sutton) affirmed a denial based on the Employer’s failure to document its use of campus placement offices a recruitment step. The Employer relied upon a company, MonsterTrak, that it asserted supplied its ads to campus placement offices. The Board concluded that even though the Employer demonstrated that it had contracted with MonsterTrak, there was no documentation that anything had actually been supplied to any institution.


Gibson Applied Technology , 2012-PER-03441 (Oct. 26, 2016)

Issue - Single publication for all advertisements

Decision - CO reversed

The Board (Henley, Almanza and Merck), relying on its earlier opinion in Bank of America , 2012-PER-02227 (Sept. 13, 2016), reversed the denial of certification concluding that the same publication can be used to satisfy the requirement for both the Sunday advertisements and the local newspaper advertisement.


Karma Hospitality, LLC , 2016-PER-00064 (Oct. 28, 2016)

Issue - Documentation of radio advertisements; regulations expressly require proof of content

Decision - CO affirmed

The Board (Henley, Barto and Merck) affirmed a denial based on the Employer’s failure to supply the text of its radio advertisement. The panel rejected the Employer’s reliance on A Cut Above Ceramic Tile , 2010-PER-00224 (Mar. 8, 2014)(en banc), on the ground that the regulation governing documentation of job orders did not require any proof of content whereas the regulation governing radio advertisements specifically does.


Advent Global Solutions , 2013-PER-02141 (Oct. 28, 2016)

Issue - Additional recruitment steps for professional occupation; failure to document one step insufficient to support denial where application also identified three other additional recruitment steps

Decision - CO reversed

The Board (Henley, Almanza and Davis) reversed a denial based on the Employer’s failure to adequately document its advertisement in a professional journal while the application identified three other recruitment steps that the CO did not reject.


Genworth North American Corp. , 2012-PER-02980 (Oct. 28, 2016)

Issue - Rejection of domestic applicant; CO’s determination that skills could be acquired through a reasonable on-the-job training insufficient where based on mere surmise: and refuted by employer’s documentation

Decision - CO reversed

The Board (Henley, Almanza and Hillson) reversed the denial, rejecting the CO determination that a domestic applicant had been unlawfully rejected. The panel concluded that the applicant did not meet the training and experience requirements set forth in the application and that the CO’s determination that these skills could be acquired through a reasonable on-the-job training was “mere surmise, and refuted by the Employer’s detailed description of the complex duties of the position.”


McKinsey & Co., Inc. , 2012-PER-02771 (Oct. 28, 2016)

Issue - Documentation of on-campus recruiting; whether documentation must come from campus placement office, or whether other evidence may suffice

Decision - CO reversed

The Board (Henley, Almanza and Barto) reversed the denial, concluding that the Employer had adequately documented its use on-campus recruiting. The decision largely turns on whether the documentation for on-campus recruiting must include documentation from the college placement office. In this case the employer supplied considerable company generated information regarding its efforts on campus but nothing actually generated by the college placement office. The panel agreed with the employer that the language in the regulation referencing documentation from college placement offices was only suggestive and that the substantial amount of information submitted by the employer was sufficient.


Los Angeles Ort Technical Institute , 2012-PER- 02697 (Oct. 28, 2016)

Issue - Special procedures for college and university teachers; definition of college and university for PWD purposes found not applicable

Audit response; error to deny based on failure to supply alien’s CV where the CV was not requested in the audit notification and regulations do not require maintenance of CV

Decision - CO reversed

The Board (Henley, Almanza and Hillson) reversed a denial based on the CO’s determination that the Employer was not entitled to utilize the special procedures for college and university teachers. The panel rejected the CO’s conclusion that the definition of college and university used for prevailing wage purposes under 20 C.F.R. § 656.40 also applied to the special procedures for college and university teachers found at 20 C.F.R. § 656.18. The decision noted that the § 656.40 procedures were adopted in response to specific legislative directions regarding prevailing wage determinations. The decision noted that the preamble to the special procedure regulation references different statutory provisions. The decision also rejected the CO’s conclusion that the Employer failed to respond to the audit request for the Alien’s CV. The decision noted that the audit request had not requested the CV and the regulation did not require such documentation to be maintained.


Automatic Data Process Inc. , 2012-PER-02661 (Oct. 28, 2016)

Issue - CO’s denial of extension of time for audit response is reviewed under an abuse of discretion standard

Decision - CO affirmed

The Board (Henley, Almanza and Barto) affirmed a denial where the CO refused to grant an extension of time for the Employer to respond to audit. The panel noted that such CO actions were reviewed based on an abuse of discretion standard and that the CO could not be found to have abused his discretion where the Employer offered no reason for the requested extension.


HTC Global Services, Inc. , 2012-PER-02387 (Oct. 28, 2016)

Issue - Sufficiency of recruitment report; no requirement that report be signed by same person who signed the application; report that included a separate document for each step, while unconventional, found to have met technical requirements of the regulations

Decision - CO reversed

The Board (Henley, Barto and Davis) reversed a denial where the CO concluded that the Employer had not provided a sufficient recruitment report in part because the report was not signed by the same person who signed the application. As to who signs, the panel noted that the regulations do not require that the two documents be signed by the same person. As to the broader question, the decision concluded that the report while “unconventional” met the technical requirements of the regulation. “The Employer submitted a separate document for each recruitment step it took. In addition to the step taken, each document listed the number of applicants and the lawful job-related reasons for rejection-”


Broadridge Financial Solutions, Inc. , 2012-PER-01834 (Oct. 28, 2016)

Issue - Job clearly open; advertisement misleading where it contained a wage below the PWD

Decision - CO affirmed

The Board (Henley, Almanza and Merck) affirmed a denial based on 20 C.F.R. § 656.10(c)(8) where the advertising contained a wage below the prevailing wage.


Intent Design Ltd , 2012-PER-01692 (Oct. 28, 2016)

Issue - Undefined alternative experience; CO could not penalize employer for describing its alternative experience requirement as “as any combination of education training and experience,” language that is verbatim from § 656.24(b)(2)(ii)

Decision - CO reversed

The Board (Henley, Almanza and Davis) reversed a denial where the CO found that the Employer had failed to describe its actual minimum requirements because it described its alternative requirement as any combination of education training and experience. The Employer established the Alien’s qualification through a credentials evaluation that the CO did not challenge. The panel concluded that the CO could not penalize an Employer for using as its alternative experience a formulation taken verbatim from the regulation at 20 C.F.R. § 656.24(b)(2)(ii)