Cite as: 324 Seventh Avenue Restaurant Corp., 2011-PER-00981 (BALCA 09-17-2012)U.S. Department of Labor Board of Alien Labor Certification Appeals 800 K Street, NW, Suite 400-N Washington, DC 20001-8002 (202) 693-7300 (202) 693-7365 (FAX) Issue Date: 17 September 2012 BALCA Case No.: 2011-PER-00981 ETA Case No.: A-10005-80259 Since your [immigration or labor] attorney is NOT even supposed to coach In the Matter of: you about how to disqualify American workers in favor of an alien worker, (s)he 324 SEVENTH AVENUE RESTAURANT CORP., sure has absolutely no business signing Employer off as the interviewer or person who considers job applicants! on behalf of No immigration or labor attorney (or lay specialist in dealing with PERM filings CROWLEY, KEVIN JOHN, for labor certifications) should ever sign Alien. the recruitment reports! The controlling DOL regulation at 20 C.F.R. § 656.10(b) Certifying Officer: William Carlson (2)(i) specifically highlights the Atlanta National Processing Center Employers attorney as an unsuitable Appearances: Richard A. Burke, Esq signatory to the recruitment report. Read Law Office of Richard M. Burke that regulation as an express New York, New York PROHIBITION. For the Employer Gary M. Buff, Associate Solicitor Louisa M. Reynolds, Attorney Office of the Solicitor Division of Employment and Training Legal Services Washington, DC For the Certifying Officer Before: Sarno, Bergstrom, Krantz Administrative Law Judges DECISION AND ORDER AFFIRMING DENIAL OF CERTIFICATION This matter arises under Section 212 (a)(5)(A) of the Immigration and Nationality Act, 8 U.S.C. §1182(a)(5)(A), and the “PERM” regulations found at Title 20, Part 656 of the Code of Federal Regulations (“C.F.R.”).
BACKGROUND On March 19, 2010, the Certifying Officer (“CO”) accepted for filing the Employer’sApplication for Permanent Employment Certification for the position of “Cook” (AF 88). 1 OnApril 22, 2010, the DOL sent a Notification of Supervised Recruitment letter which required theEmployer to create a draft advertisement for approval. Once the advertisement was approved, theEmployer would receive specific instructions on where to publish; additionally the CO wouldpoint the Employer to any candidates who responded to the advertisement. The Employer wouldalso have to submit a final recruitment report to the CO. (AF 83-86). On May 24, 2010, the Employer asked for a 30 day extension which was granted. (AF80). On June 21, the Employer sent the advertisements to the CO for approval. (AF 72-73). On June 28, 2010, the CO approved the advertisements and sent a RecruitmentInstructions letter. (AF 69-71). On July 13, 2010, the Employer requested another extension, andthe CO granted the request on July 16, 2010. (AF 66). The Employer responded twice to the Recruitment Instructions letter. First in an email onJuly 27, 2010, the Employer advised the CO of the steps being taken towards compliance (AF64), and then finally on September 10, 2010 the Employer submitted the required documents.(AF 46-63). Once the Employer’s recruitment period ended, the CO sent a Recruitment ReportInstructions letter on October 21, 2010. (AF 43). The Employer responded with a recruitmentreport signed by the Employer’s attorney on November 22, 2010. (AF 27-28). On December 3, 2010, the CO denied certification because (1) the Notice of Filing didnot contain the address of the appropriate Certifying Officer in Atlanta, and (2) the recruitmentreport was signed by the Employer’s attorney – not the person who normally interviews jobapplicants. 20 C.F.R. § 656.21(e). (AF 26).1 In this decision, AF is an abbreviation for Appeal File. -2-
The Employer requested reconsideration on January 4, 2011, attaching a recruitmentreport signed by the Employer as well as a Notice of Filing with the proper address. (AF 2-20)On March 31, 2011 the CO accepted the address listed on the Notice of Filing, but deniedcertification on the basis of the recruitment report’s faulty signature citing § 656.21(e). (AF 1) The CO forwarded the case to BALCA on March 31, 2011, and BALCA issued a Noticeof Docketing on June 14, 2011. The Employer filed a Statement of Intent to Proceed on June 27,2011, and filed a brief arguing that the amended signature is not new evidence and that theoversight was harmless error. The Employer argues he never intended to willfully orintentionally exclude a properly signed recruitment report. The Employer believed in good faiththat his attorney’s signature, as the Employer’s representative, would be sufficient for therecruitment letter. The Employer also emphasizes that he has otherwise conformed to everyinstruction given by the CO. On July 14, 2011, the CO filed a letter indicating they would not be filing a brief. DISCUSSIONThe regulation at 20 C.F.R. § 656.17(g)(1) requires that the Employer prepare a recruitmentreport. The report must be signed “by the employer or the employer’s representative” andotherwise comply with the following requirements: The employer must prepare a recruitment report signed by the employer or the employers representative noted in §656.10(b)(2)(ii) describing the recruitment steps undertaken and the results achieved, the number of hires, and, if applicable, the number of U.S. workers rejected, categorized by the lawful job related reasons for such rejections. Section 656.10(b)(2)(ii) describes who qualifies as an employer’s representative andtherefore, who can sign the recruitment report. The employers representative who interviews or considers U.S. workers for the job offered to the alien must be the person who normally interviews or considers, on behalf of the employer, applicants for job opportunities such as that offered the alien, but which do not involve labor certifications.The rationale is given in § 656.10(b)(2)(i): “[I]t is contrary to the best interests of U.S. workersto have the alien and/or agents or attorneys for either the employer or the alien participate in -3-
interviewing or considering U.S. workers for the job offered the alien.” 20 C.F.R. §656.10(b)(2)(i). The regulation specifically highlights the Employer’s attorney as an unsuitablesignatory to the recruitment report. Therefore in this case the recruitment report included in theAudit Response which was signed by the Employer’s attorney fails to comply with the regulatoryrequirements. Additionally, BALCA may not consider the amended recruitment report filed for the firsttime in the Employer’s Request for Reconsideration. The regulations at § 656.24(g)(2) limits thetype of documentation that can be included in the request for reconsideration to: (i) Documentation that the Department actually received from the employer in response to a request from the Certifying Officer to the employer; or (ii) Documentation that the employer did not have an opportunity to present previously to the Certifying Officer, but that existed at the time the Application for Permanent Labor Certification was filed, and was maintained by the employer to support the application for permanent labor certification in compliance with the requirements of §656.10(f).Further, the PERM regulations restrict BALCA’s review of a denial of labor certification toevidence that was part of the record upon which the CO’s decision was made. 20 C.F.R. §§656.26(a)(4)(i) and 656.27(c). In this case the Employer does not argue that the CO actually received thedocumentation, nor does the Employer argue it had no opportunity to present the documentation.Therefore this new evidence may not be considered by BALCA as it was not before the CO anddoes not fit one of the regulatory exceptions. Finally, the Employer argues that the incorrect signature on the recruitment report washarmless error. However PERM is an exacting process in which the Employer bears the burdenof proof. 8 U.S.C. § 1361; 20 C.F.R. § 656.2(b). PERM is designed to favor administrativeefficiency over back-and-forth dialogue in order to better serve the public interest overall, giventhe resources available to administer the program. HealthAmerica, 2006-PER-1, slip op. at 19(July 18, 2006) (en banc). Errors, even small ones, can be fatal in this process. As discussed -4-
above the Employer failed to comply with clear regulatory requirements at § 656.17(g)(1). Thisfailure is not harmless error. Accordingly, we affirm the CO’s denial of certification. ORDER IT IS ORDERED that the denial of labor certification in this matter is herebyAFFIRMED. For the Panel: This is copy downloaded off the DOL website. Some commentary and highlights have been added and are easily discernible. There is a link at the top of page one to the DOL posted Decision. DANIEL A. SARNO, JR. District Chief Administrative Law JudgeDAS,JR./AMJ/jcbNewport News, Virginia -5-
NOTICE OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Order will becomethe final decision of the Secretary unless within twenty days from the date of service a party petitions forreview by the full Board. Such review is not favored and ordinarily will not be granted except (1) whenfull Board consideration is necessary to secure or maintain uniformity of its decisions, or (2) when theproceeding involves a question of exceptional importance. Petitions must be filed with: Chief Docket Clerk Office of Administrative Law Judges Board of Alien Labor Certification Appeals 800 K Street, NW Suite 400 Washington, DC 20001-8002Copies of the petition must also be served on other parties and should be accompanied by a writtenstatement setting forth the date and manner of service. The petition shall specify the basis for requestingfull Board review with supporting authority, if any, and shall not exceed five double-spaced pages.Responses, if any, shall be filed within ten days of service of the petition, and shall not exceed fivedouble-spaced pages. Upon the granting of a petition the Board may order briefs. -6-