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U.S. Department of Labor Board of Alien Labor Certification Appeals
800 K Street, NW, Suite 400-N
Washington, DC 20001-800...
- 2 -
application for audit. (AF 354). On May 28, 2009, Employer responded to the Audit
Notification. (AF 320).
On October...
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responded to the recruitment. Employer’s recruitment report did not satisfy the requirements of
20 CFR § 656.21(e)(2...
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Asahina Sayaka v_Mitsubishi_Imaging_2011-PER-02913_(BALCA Apr_05_2013)

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Asahina Sayaka v_Mitsubishi_Imaging_2011-PER-02913_(BALCA Apr_05_2013)

  1. 1. 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: 05 April 2013 BALCA Case No.: 2011-PER-02913 ETA Case No.: A-08312-03517 In the Matter of: MITSUBISHI IMAGING, Employer on behalf of ASAHINA, SAYAKA Alien. Certifying Officer: Atlanta National Processing Center Appearances: Peter Jensen, Esquire New York, NY For the Employer Gary M. Buff, Associate Solicitor Office of the Solicitor Division of Employment and Training Legal Services Washington, DC For the Certifying Officer Before: Sarno, Bergstrom and Malamphy 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 20 C.F.R. Part 656. The Employer filed an Application for Permanent Employment Certification for the position of “Account Specialist.” (AF 358-367).1 On May 4, 2009, the Certifying Officer (CO) selected the 1 In this decision, AF is an abbreviation for Appeal File.
  2. 2. - 2 - application for audit. (AF 354). On May 28, 2009, Employer responded to the Audit Notification. (AF 320). On October 25, 2010, the CO sent Employer a Notification of Supervised Recruitment. (AF 314). On December 20, 2010, Employer requested an extension to respond to the supervised recruitment. (AF 302). On December 21, 2010, the CO granted Employer’s request for an extension. The CO provided Employer with an additional 15 days to submit the required supervised recruitment documentation. (AF 301). On January 5, 2011, Employer provided a schedule detailing the placement of ads for the position. (AF 300). On January 20, January 27, and February 4, 2011, the CO sent Employer resumes received in response to Employer’s advertisements. (AF 286-367). On May 4, 2011, Employer submitted its Response to the Recruitment Report. (AF 13). On May 18, 2011, the CO denied the Application for Permanent Employment Certification. The CO stated three reasons for denial. The CO’s first reason for denial was that the “employer failed to list the total number of U.S. workers who responded to the advertisements placed during the Supervised Recruitment period as requested in the Recruitment Report Instructions letter.” (AF 10). On June 16, 2011, Employer submitted a Request for Reconsideration. (AF 3). Employer argued that the recruitment chart sufficiently indicated the number of workers who responded to its recruitment effort. On September 19, 2011, the CO submitted a letter indicating that the request for reconsideration did not overcome the deficiencies stated in the determination letter. (AF 1). The CO explained that Employer’s recruitment report failed to identify the number of U.S. applicants. The CO forwarded the case to BALCA on September 19, 2011. (AF 1). BALCA issued a Notice of Docketing on January 4, 2012. Employer submitted a Statement of Intent to Proceed on January 10, 2012. Neither the CO nor Employer submitted a Statement of Position. DISCUSSION As part of the supervised recruitment process, the employer must “provide to the certifying officer a signed, detailed written report of the employer’s supervised recruitment.” 20 CFR § 656.21(e). The recruitment report must “[s]tate the number of U.S. workers who responded to the employer’s recruitment.” 20 CFR § 656.21(e)(2). In denying the application, the CO explained that Employer failed to state the number of U.S. applicants in its recruitment report. (AF 10). In its Request for Review, Employer stated that it provided “a detailed Recruitment Chart with a complete list of applicants who responded to the advertisements. . .” (AF 3). Employer argued that the chart was “plainly sufficient to state the number of U.S. workers who responded to employer’s recruitment effort.” (AF 3). Employer’s chart provided applicant names, addresses, recruitment sources, actions taken, and reasons for disqualification. (AF 19). However, neither the recruitment chart nor the recruitment report letter stated the number of workers or indicated that the chart covered every worker who responded to the recruitment. Therefore, the recruitment chart did not adequately demonstrate how many U.S. workers
  3. 3. - 3 - responded to the recruitment. Employer’s recruitment report did not satisfy the requirements of 20 CFR § 656.21(e)(2). Accordingly, IT IS ORDERED that the denial of labor certification in this matter is AFFIRMED. For the panel: DANIEL A. SARNO, JR. District Chief Administrative Law Judge DAS,JR./ECD/jcb Newport News, Virginia NOTICE OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Order will become the final decision of the Secretary unless within twenty days from the date of service a party petitions for review by the full Board. Such review is not favored and ordinarily will not be granted except (1) when full Board consideration is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding 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 20001-8002 Copies of the petition must also be served on other parties and should be accompanied by a written statement setting forth the date and manner of service. The petition shall specify the basis for requesting full 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 five double-spaced pages. Upon the granting of a petition the Board may order briefs. Digitally signed by Daniel Sarno DN: CN=Daniel Sarno, OU=Administrative Law Judge, O=Office of Administrative Law Judges, L=Washington, S=DC, C=US Location: Washington DC

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