November 2015
Polo Ralph Lauren Corp. , 2012-PER-01568 (Nov. 4, 2015)
Issue – Wage incorrect on NOF; wrong NOF submitted but no substitution permitted
Decision - CO Affirmed
The CO denied the application because the wage rate contained in the NOF was below the prevailing wage on the application. On reconsideration the employer contended that the incorrect NOF had been supplied in response to the audit. The employer supplied a copy of a NOF with the correct wage and other documentation regarding its posting. The employer argued the submission of the incorrect NOF was a clerical error that could be overcome citing, inter alia , Luigi's Restaurant , 2009-PER-00357 (Aug. 31, 2009). The CO affirmed his decision noting that 20 C.F.R. § 656.24(g)(2) precluded his accepting the new NOF.
The Board (Almanza, Henley and Merck) affirmed. The panel rejected the reasoning from Luigi's , and several other cases, and rather opted for the analysis provided in First Steps Children Center , 2011-PER-02856 (Mar. 14, 2012) which held that the CO did not abuse his discretion by not considering information submitted for the first time on reconsideration. The panel noted that the facts in Luigi's were different since in that case the CO had actually reviewed the substituted NOF and, in any case, the decision in Luigi's was inconsistent with § 656.24(g)(2).
CSI International, Inc. , 2012-PER-00614 (Nov. 4, 2015)
Issue – Travel requirement not included in newspaper ads; violation of § 656.17(f)(4)
Decision – CO Affirmed
The CO denied the application because the Form 9089 indicated a travel requirement that was not reflected in the newspaper advertising or the job order. On reconsideration the employer argued that the regulation, 20 C.F.R. § 656.17(f)(4), dealt only with workers needing to relocate for the job. It also argued that the absence of a discussion of travel might increase the number of workers who would apply for the position. The CO affirmed the denial.
The Board (Almanza, Henley and Merck) rejected the employer's interpretation of the regulation. While agreeing the employer that ads do not need to describe all job requirements, this employer had a distinct travel requirement that needed to be disclosed. The fact the travel was only 20% of the time was irrelevant since the regulation requires disclosure of "any" travel requirement.
La Hacienda Meat Market, Inc. , 2012-PER-01105 (Nov. 4, 2015)
Issue – Sponsorship denial; submission of signed Form 9089 is itself a demonstration of sponsorship
Decision – CO Reversed
The CO denied the application on the grounds that the employer's sponsorship of the application could not be established based on three unsuccessful attempts to contact the employer by telephone. The employer's motion for reconsideration was denied by the CO in large measure because the employer, allegedly, ignored a letter from the CO asking for a signed statement from the employer indicating the employer was sponsoring the applicant.
The Board (Almanza, Henley and Merck) reversed, relying on prior decisions including Jankin, LLC , 2012-PER-01049 (Aug. 27, 2013) and Pickering Valley Contractors Inc. , 2010-PER-01146 (Aug. 23, 2011), in which it was held that the submission of a signed Form 9089 is an adequate demonstration of sponsorship. Based on that signature and other information in file demonstrating the employer's bona fides, the Board reversed. With respect to the CO's letter, the panel noted that there was no proof the letter had actually been sent and, in any case, the letter did specify that the application would be denied if it was not responded to.
Applied Safety, LLC , 2012-PER-01097 (Nov. 4, 2015)
Issue – Incomplete recruitment report; report must describe all recruitment steps
Decision – CO Affirmed
The CO denied the application because the recruitment report did describe all the recruitment steps. On reconsideration the employer included the missing information and asked the CO to use his discretion to overlook the error in the initial response. The CO reaffirmed the denial relying on the restriction on the submission of new evidence on reconsideration.
The Board (Henley, Almanza, and Merck) affirmed noting several deficiencies in the original recruitment report including the failure to reference the SWA job order.
United Sports Academies, Inc. , 2012-PER-00914 (Nov. 4, 2015)
Issue – Travel requirements in advertising not on Form 9089; violation of § 656.17(f)(7)
Decision – CO Affirmed
The CO denied the application because the employer included a travel requirement in its advertisements that was not included on the Form 9089. On reconsideration the employer argued that the existence of a travel requirement could be extrapolated from the use of the word "international" in the job title as well as the job requirement of "hands on experience in the international arena." The CO disagreed and affirmed the denial.
The Board (Henley, Almanza and Merck) affirmed, adopting the reasoning in prior cases, Birlasoft Inc. , 2010-PER-01216 (May 11, 2012) and Xpedite Technologies , 2010-PER-00100 (Apr. 7, 2010) which held that the inclusions of travel requirements in advertisements that were not contained on the Form 9809 violated the employer's obligation under 20 C.F.R. § 656.17(f)(7) to not offer terms of employment less favorable than those offered the alien. The panel agreed with the CO that the travel requirement could not be extrapolated from the content of the 9089.
Hospitality Partners, LLC
, 2012-PER-00859 (Nov. 6, 2015)
E.R. Auto Service, Inc.
, 2012-PER-00885 (Nov. 6, 2015)
Issue – Complete recruitment report; "documenting" recruitment steps is not the same as "describing" those steps
Decision – CO Affirmed
In these virtually identical cases, the CO denied certification because the recruitment report failed to provide a description of all the recruitment steps taken. On reconsideration the employer argued that it had provided copies of all the recruitment steps and that this documentation was self-explanatory. The CO affirmed the denial.
The Board (Almanza, Davis and Henley) affirmed. The decision relied on the language in 20 C.F.R. § 656.17(g)(1) that requires the recruitment report include documentation "describing the recruitment steps taken." The decision also noted the ruling in Simply Soup, Ltd. , 2012-PER-00940 (Jan. 13, 2015) (en banc) which held that "documenting" the recruitment steps was not the equivalent of "describing" them.
Hankins, Charles , 2012-PER-00912 (Nov. 6, 2015)
Issue – Defective recruitment report; harmless error
Decision – CO Affirmed
The CO denied the application because the recruitment report stated that the ads and job order had been placed in Florida but the documentation indicated that these activities had actually taken place in Illinois. On reconsideration the employer argued that the recruitment report had been prepared in error and asked that the error be viewed as harmless since the documentation showed that the advertising had been properly conducted in Illinois. The employer relied upon the decision in Luigi's Restaurant , 2009-PER-00357 (Aug 31, 2009) as standing for the proposition that inadvertent oversights could be corrected during the reconsideration process. The employer also submitted a corrected recruitment report. The CO refused to reconsider citing the evidentiary limitation contained in 20 C.F.R. § 656.24 (g) (2).
The Board (Almanza, Davis and Henley) affirmed. The panel rejected the employer's reliance on Luigi's noting that the decision itself stated that it was limited to those precise facts. The decisions also noted other cases that refused to follow Luigi's .
Top Cucina Corp. , 2012-PER-01025 (Nov. 6, 2015)
Issue – Applicant addresses in recruitment report
Decision – CO Affirmed
The CO denied the application because the recruitment report did not include a discrete list containing the names and addresses of the domestic applicants. On reconsideration the employer argued that the regulation only required that it supply the names and addresses for applicants whose resumes had not be provided to the CO. The CO affirmed the denial.
The Board (Almanza, Davis and Henley) affirmed, relying on the substantial body of precedent holding that the requirement that the employer provide in the Recruitment Report a discrete list of names and addresses of domestic applicants would be strictly enforced.
GPRR, Inc. , 2012-PER-00904 (Nov. 16, 2005)
Issue – Failure to supply PWDR
Decision – CO Reversed
Relying on the en banc decision in SAP America Inc. , 2010-PER-01250(Apr. 18, 2013) (en banc), the Board, (Davis, Henley and Merck) summarily reversed a denial that was based on the employer's failure to supply the Prevailing Wage Determination Request.
Oakwood Construction, Inc. , 2012-PER-01056 (Nov. 16, 2015)
Issue – Complete recruitment report; report must describe the recruitment steps undertaken
Decision – CO Affirmed
The Board (Henley, Davis and Merck), affirmed the denial based on the employer's failure to submit a recruitment report that described the recruitment steps taken. The panel affirmed the CO's refusal to consider a new recruitment report submitted on reconsideration based on the evidentiary restrictions found at 20 C.F.R. § 656.24(g)(2).
North Coast Cardiology Inc. , 2012-PER-00958 (Nov. 16, 2015)
Issue – Submission of complete recruitment report
Decision – CO Reversed
The certification was denied because the CO concluded that the recruitment report contained only a generalized statement that the recruitment was unsuccessful and did not list the number of workers rejected categorized by the reasons for rejection. On reconsideration the employer contended that the recruitment report had stated that no applications had been received. The CO reaffirmed the denial concluding that information supplied for the first time in the motion for reconsideration could not be considered.
The Board (Davis, Henley, and Merck) reversed. The decision noted that the employer had submitted a document, albeit not titled a recruitment report, that contained all the essential elements of such a report. The decision also rejected the CO's determination that the recruitment report had been submitted for the first time on reconsideration.
A & J Partnership , 2012-PER-00674 (Nov. 16, 2015)
Issue – Failure to display name of employer on NOF; submission of different version of NOF with motion for reconsideration barred by § 656.24(g)(2)
Decision - CO Affirmed
The CO denied the application because the NOF did not contain the name of the employer. On reconsideration the employer contended that the NOF supplied with the audit response was computer generated and that the actual NOF, which it supplied with the motion, was on the employer's letterhead. The CO affirmed the denial noting that the NOF submitted on reconsideration could not be considered because of the evidentiary restrictions in 20 C.F.R. § 656.24(g)(2).
The Board (Henley, Davis and Merck) affirmed relying on two well established principles: New information cannot be submitted for the first time on reconsideration and that the requirements regarding the content of the NOF will be strictly applied.
Jose A. Jimenez , 2012-PER-00367 (Nov. 18, 2015)
Issue - FEIN; authority of CO to require proof of FEIN; timeliness of submission of proof
Decision – CO Affirmed
The CO affirmed because the employer did not timely submit proof of its FEIN.
The Board (Henley, Davis and Merck) affirmed. While the case had a long and somewhat convoluted procedural history, in the end, the employer did not supply proof of the validity of its FEIN until it submitted its request for reconsideration. The panel concluded that the CO could properly require proof of validity of the FEIN and that such information cannot be submitted for the first time on reconsideration.
JP Morgan Chase & Co. , 2012-PER-00693 (Nov. 18, 2015)
Issue – Rejection of qualified applicant; credibility choices
Decision – CO Affirmed
The CO denied the application because he concluded that the employer had failed to consider a qualified domestic applicant. The CO rejected the employer's argument that the individual in question had withdrawn his application. The CO actually had contacted the domestic applicant, whose written recollection of the events differed from the employer's description set forth in several affidavits.
The Board (Calianos, Geraghty and McGrath) affirmed the CO. The decision contains a lengthy discussion of the substantial factual record and concluded that the preponderance of the evidence supported the CO's version of the events.
Vatica Contracting, Inc. , 2012-PER-00944 (Nov. 18, 2015)
Issue – Alien unqualified for position
Decision – CO Affirmed
The CO denied the application because the alien lacked the 24 months roofing experience required for the position. On reconsideration the employer argued that the alien had other related experience that he obtained while working for the employer as a construction laborer. The CO rejected the request noting that the Form 9089 did not indicate that experience in an alternative occupations was acceptable.
The Board (Davis, Henley and Merck) affirmed, noting that the employer's argument that the construction laborer position was not substantially comparable to the roofer position was unavailing since that experience did not qualify the alien for the position in question.
NYC Seafood Restaurant
, 2012-PER-00983 (Nov. 18, 2015)
L.V.A. Foods, Inc.
, 2012-PER-00994 (Nov. 19, 2015)
Issue – Name of the employer in the NOF
Decision – CO Affirmed
The Board (Davis, Henley and Merck) summarily affirmed the CO's denials based on the fact the NOF did not precisely contain the name of the employer. The decisions rely on the en banc ruling in Tera Technologies , 2011-PER-2541(Aug. 28, 2014) (en banc), and the district court decision in Country Landscaping & Supply, Inc. , 12-cv-04309 (N.D. Ill. Jan. 31, 2013), reaffirming the principle that the requirements concerning the content of the NOF will be strictly enforced.
DGN Technologies Inc. , 2015-PER-00093 (Nov. 19, 2015)
Issue - Job requirements in the NOF exceeded the 9089
Decision – CO Affirmed
The CO denied the application because the NOF indicated that a Master's degree was required for the position whereas the Form 9089 only referenced a Bachelor's degree. On reconsideration the employer argued that it was including multiple positions within this recruitment and that the NOF listed both Master's degree and Bachelor's degree plus 5 years' experience as alternative requirements. The CO reaffirmed the denial.
The Board (Henley, Davis and Merck) affirmed concluding that NOF indicated that Master's degree was the "baseline" requirement which was not the requirement set out on the 9089.
SDG Corp. , 2012-PER-00678 (Nov. 19, 2015)
Issue – Content of the NOF; wage offer below that on the 9089
Decision – CO Affirmed
The Board (Henley, Davis and Merck) affirmed the denial of certification where the wage rate contained in the NOF was $941 per year less than the offered wage on the Form 9089. The decision rejected the employer's suggestion that the wage difference was too small to impact the recruitment.
Milleniumsoft , 2012-PER-00636 (Nov. 23, 2015)
Issue – Advertising in the Washington Examiner
Decision – CO Affirmed
The CO denied the application because the employer had placed its mandatory newspaper ads in the Washington Examiner , which the CO concluded was not circulated in Fairfax County, Va., the area of intended employment. The employer sought reconsideration noting that it had successfully used the Examiner in the past, and providing information concerning the Examiner 's circulation in Virginia. The CO denied again this time concluding that the Examiner was not the publication "most likely" to reach the target audience because of the limited number and scope of the classified advertising it contained. The employer again sought reconsideration this time including a letter from the Examiner addressing the question of whether it constituted a newspaper of general circulation. The CO again denied concluding that the Examiner was not the publication "most likely" to get responses. The CO's decision on reconsideration contained a lengthy comparison of the nature and extent of the classified advertising in the Examiner versus the Washington Post .
The Board (Henley, Morris and Merck) affirmed. The panel discussed two prior Board rulings addressing the use of the Washington Examiner as a recruiting vehicle: I Intercontinental Enterprises , 2011-PER-02756 (July 30, 2012) (CO affirmed) and Capital Building Services , 2012-PER-01971 (Feb. 2, 2013) (CO reversed). While the panel in Capital approved the use of the Examiner , the decision distinguished Intercontinental on the ground that the case involved a professional position. That panel concluded that Examiner could be used for non-professional positions. Since the instant case involved a professional position, the panel adopted the reasoning from Intercontinental and affirmed. The decision also expressed some skepticism about the use of the Examiner for any occupation.