U.S. Department of Labor Board of Alien Labor Certification Appeals
800 K Street, NW, Suite 400-N
Washington, DC 20001-8002
(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:
on behalf of
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
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
In this decision, AF is an abbreviation for Appeal File.
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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
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.
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
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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
For the panel:
DANIEL A. SARNO, JR.
District Chief Administrative Law Judge
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