Hanchett Park House 2011 PER-02533 (Dec-13-2012) (BALCA)
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: 13 December 2012 BALCA Case No.: 2011-PER-02533 ETA Case No.: A-08316-04183 In the Matter of: BALCA agreed with the CO that a weekly HANCHETT PARK HOUSE, entertainment newspaper was inappropriate Employer, for recruitment of home health aides. on behalf of CLARITA MATIAS PASCUA, Alien. Certifying Officer: William Carlson Atlanta Processing Center Appearances: Evelyn D. Alfonso, Esq. Law Office of Evelyn Dela Cruz Alfonso San Mateo, CA 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: McGrath, Geraghty, Calianos Administrative Law Judges TIMOTHY J. McGRATH Administrative Law Judge 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 governing alien labor certification found at Title 20, Part 656 of the Code of Federal Regulations (“C.F.R.”).
BACKGROUND On November 14, 2008, the Certifying Officer (“CO”) accepted for filing the Employer’sApplication for Permanent Employment Certification for the position of “Home Health Aides.”(AF 39).1 On May 11, 2009, the CO sent the Employer an Audit Notification Letter requestingthat the Employer provide certain information in accordance with 20 C.F.R. § 656.20. (AF 39).On June 8, 2009, Employer responded to the Audit Notification Letter. (AF 12). On December 21, 2010, the CO denied the application because the newspaper used by theEmployer to advertise the job opportunity “is not a newspaper of general circulation most likelyto bring responses from available U.S. workers” in violation of 20 C.F.R. § 656.17(e)(2)(ii)(A).(AF 11). “Specifically, the newspaper used has limited circulation; is an alternative newspaperand does not appear to be likely to bring responses from available U.S. workers.” (AF 11). On January 4, 2011, the Employer requested that the CO reconsider his denial, arguing:“The SAN JOSE METRO NEWSPAPER used by the employer is of GENERALCIRCULATION.” (AF 3) (emphasis in original). The Employer further argued “[u]nder theFINE PRINT . . . Declared a legal newspaper of general circulation by the superior Court ofSanta Clara County Decree No. 651274 on April 7, 1988.’” (AF 3) (emphasis in original). TheCO forwarded the case to BALCA on August 24, 2011, noting the newspaper “is a weeklypublication used by locals “to gain perspective on their communities and make decisions abouttheir entertainment activities and consumer spending.” As such it is not appropriate for use torecruit for medical positions such as home health nurses.” (AF 1). The CO did not cite where thequoted description originated from. The CO further argued “since San Jose is part of the SanJose – Sunnyvale – Santa Clara, California Metropolitan Statistical Area (CA MSA), and doesnot meet the United States Census Bureau definition of rural area, the employer is required topublish its advertisements on two different Sundays.” (AF 1).21 In this decision, AF is an abbreviation for Appeal File.2 We cannot consider this argument as it was not presented as a reason for denial in the CO’s Denial Letter. Anemployer must be provided with adequate notice of the regulatory violations found. Medical Care Professionals,Inc., 2008-PER-00247, PDF at 6 (July 17, 2009). The Board has found that “an employer needs to know the basisfor a denial in order to file a meaningful motion for reconsideration. Thus . . . the CO must identify the section orsubsection allegedly violated and the nature of the violation, when notifying the applicant of a denial.” Kay Mays,2008-PER-00011, PDF at 5 (Aug. 27, 2008) (emphasis added). -2-
The Board issued a Notice of Docketing on November 30, 2011, which allowed theEmployer and the CO forty-five days to file briefs in support of their positions. The Employerfiled a Statement of Intent to Proceed on December 13, 2011, but did not file an appellate brief.The CO did not file a Statement of Position in the matter. On September 14, 2012, the Employercertified via e-mail that the job identified in the PERM application is still open and available andthat the alien identified in the PERM application is ready, willing and able to fill the position. DISCUSSION PERM is an attestation-based program. 20 C.F.R. § 656.10(c). Among other attestations,an employer must attest that the job opportunity listed in the application for permanentemployment certification has been and is clearly open to any U.S. workers. 20 C.F.R.§ 656.10(c)(8). Accordingly, the regulations require an employer to conduct mandatoryrecruitment steps and make a good-faith effort to recruit U.S. workers prior to filing anapplication for permanent alien labor certification. See 20 C.F.R. § 656.17(e); LaborCertification for the Permanent Employment of Aliens in the United States; Implementation ofNew System, 69 Fed. Reg. 77326, 77348 (Dec. 27, 2004). One of the mandatory recruitmentsteps that an employer is required to conduct is the placement of “[a]n advertisement on twodifferent Sundays in the newspaper of general circulation in the area of intended employmentmost appropriate to the occupation and the workers likely to apply for the job opportunity.”§ 656.17(e)(2)(ii)(A); see also 20 C.F.R. § 656.24(b)(1) (stating that the CO may deny anapplication for certification if the Employer fails to meet the requirements set forth in theregulations).3 The CO found that the Employer did not place its advertisement in a newspaper that is“most appropriate to the occupation and the workers likely to apply for the job opportunity”because the advertisement was not run in a newspaper of general circulation and because thenewspaper was not “most likely to bring responses from available U.S. workers.” (AF 1, 11).The CO found that the San Jose Metro was a “weekly publication used by locals “to gain3 A FAQ on the Employment & Training Administration website, although not binding, makes clear that theemployer bears the burden of showing “that the newspaper . . . chosen is the most appropriate to the occupation andthe workers likely to apply for the job opportunity.”http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#acceptpub1 (last visited August 8, 2012). -3-
perspective on their communities and make decisions about their entertainment activities andconsumer spending” [and therefore] not appropriate for use to recruit for medical positions suchas home health nurses.” (AF 1). The Employer bears the burden of showing that the newspaper was of general circulationand most likely to bring responses from the U.S. labor market. See Your Employment Service,2009-PER-00151 PDF at 7 (Oct. 30, 2009). Here, Employer failed to establish that the San JoseMetro was in fact a newspaper of general circulation most likely to bring responses from U.S.workers. Assuming, arguendo, that a judicial pronouncement from 1988 establishing the SanJose Metro as “a newspaper of general circulation” sufficiently establishes that the San JoseMetro was a paper of general circulation in the greater San Francisco Bay Area in 2008,Employer still failed to establish the San Jose Metro as the newspaper “most likely to bringresponses from the U.S. labor market.” We agree with the CO’s finding that the Employer failed to establish that the San JoseMetro was the appropriate paper to bring responses from the U.S. labor market. Anadvertisement in an alternative newspaper focused on entertainment activities is not “mostappropriate to the occupation and the workers” searching for healthcare employmentopportunities. Thus, we affirm the CO’s denial of certification pursuant to 20 C.F.R.§ 656.17(e)(2)(ii)(A). ORDER IT IS ORDERED that the denial of labor certification in this matter is herebyAFFIRMED. For the Panel: TIMOTHY J. McGRATH Administrative Law JudgeBoston, MA -4-
NOTICE OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Orderwill become the final decision of the Secretary unless within twenty days from the date of servicea party petitions for review by the full Board. Such review is not favored and ordinarily will notbe granted except (1) when full Board consideration is necessary to secure or maintainuniformity of its decisions, or (2) when the proceeding involves a question of exceptionalimportance. 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 awritten statement setting forth the date and manner of service. The petition shall specify thebasis for requesting full Board review with supporting authority, if any, and shall not exceed fivedouble-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 mayorder briefs. -5-