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Patni Americas Inc 2011 PER-02617 (Dec 14, 2012) (BALCA)


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Patni Americas Inc 2011 PER-02617 (Dec 14, 2012) (BALCA)

  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: 14 December 2012 BALCA Case No.: 2011-PER-02617 ETA Case No.: A-08295-97643 In the Matter of: PATNI COMPUTER SYSTEMS, INC., Employer on behalf of MUKUNDA CAMTY, Alien. Certifying Officer: William Carlson Atlanta National Processing Center Appearances: Erik Anderson, Esq. Goel and Anderson, LLC Reston, VA 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 found at Title 20, Part 656 of the Code of
  2. 2. Federal Regulations (“C.F.R.”). For the reasons set forth below, we affirm the denial of theEmployer’s Application for Permanent Employment Certification. BACKGROUND On December 15, 2008, the Certifying Officer (“CO”) accepted for filing the Employer’sApplication for Permanent Employment Certification for the position of “Computer andInformation Systems Mgr.” (AF 105).1 On October 20, 2009 the CO issued an AuditNotification Letter. (AF 101). On November 17, 2009, Employer submitted its Response toAudit Notification Letter. (AF 30). On January 25, 2011, the CO denied the application for tworeasons. (AF 26). First, The employer failed to provide adequate documentation of the additional recruitment steps for professional occupations. Specifically, the recruitment conducted through the trade or professional organizations advertisements does not apprise U.S. workers of the job opportunity offered because the job described in the advertisement does not match the job described on the ETA Form 9089 Section H.(AF 27). Second, The employer failed to provide adequate documentation of the additional recruitment steps for professional occupations as requested in the Audit Notification letter. Specifically, the employer indicated in ETA Form 9089 item I.d.19 that it used an employee referral program with incentives. However, the employer failed to provide dated copies of employer notices or memoranda advertising the program and specifying the incentives offered.(AF 27). On February 22, 2011, Employer submitted a Request for Reconsideration asking the COto reconsider its denial. (AF 9). Employer alleged the trade journal advertisement was properlyplaced, but its “counsel simply attached the wrong trade journal advertisement as part of its auditresponse in this matter.” (AF 10). Employer asserts that such an error is administrative in natureand corrected through the submission of the proper journal advertisement. (AF 10). Employerfurther argues “the proof of its employee referral program submitted with its audit response was1 In this decision, AF is an abbreviation for Appeal File. -2-
  3. 3. dated,” and also attaches “a copy of the Employer’s Referral Policy which has been in existencesince 2004. This program specifically references the “Bring your Buddy” program from the website page submitted in response to the audit.” (AF 10). As such, Employer argues it “properlyplaced a trade journal advertisement consistent with the information contained in the ETA Form9089, and its employee referral program satisfies both regulatory and BALCA standardsregarding the same.” (AF 11). On July 5, 2011, the CO issued a Request for Additional Information Letter notifyingEmployer that the sponsored foreign worker had multiple Applications for PermanentEmployment Certification ETA Form 9089 pending at the Department of Labor. (AF 7). TheCO further notified the Employer that the foreign worker could not have multiple applicationspending for the same employer and the same position. (AF 7). The Employer was instructed toidentify the application to be withdrawn. (AF 7). Employer responded to the Request forAdditional Information, arguing that identical applications had not been submitted and rather, theforeign worker had applications pending for two different positions with the Employer. (AF 3).Employer argued: “Because these are two distinct and different offers of employment, andconsistent with well[-]established DOL policy, these matters should be allowed to continueindependently.” (AF 3). On August 24, 2011, the CO forwarded the case to BALCA, noting “the employer failedto provide a trade journal advertisement that accurately described the position listed on the ETAForm 9089 and because the employer had the opportunity to present the correct advertisementduring the audit review process, the Certifying Officer has determined this reason for denial asvalid.” (AF 1). The CO also noted the employer’s [Employee Referral Program] evidence, both during audit and as supplemented with its reconsideration request, does not contain evidence sufficient for the DOL to independently verify (such as a dated employer intranet page describing the job opportunity and containing a link to the ERP) the employer’s employees were notified the job opportunity on the ETA Form 9089 was eligible for the employer’s ERP incentives. Since the employer failed to demonstrate a logical nexus between a referral program with incentives and its recruitment efforts with respect to the instant application, the Certifying Officer has determined the reason for denial as valid . . . . Once again, we are seeing an agency(AF 1-2). demand NEXUS in an application package. In this case a "logical nexus" between a "referral program" and valid -3- "recruitment efforts" for a labor cert.
  4. 4. On December 6, 2011, BALCA issued a Notice of Docketing, and the Employer filed aStatement of Intent to Proceed on December 20, 2011, and its Statement of Position on January19, 2012. The CO did not file a Statement of Position. On September 6, 2012, the Employercertified via email that the job identified on the PERM application is still open and available andthat the alien identified in the PERM application remains ready, willing, and able to fill theposition. DISCUSSION PERM is an attestation based program that can only be maintained by strictly followingthe letter of the law. PERM regulations were designed to favor administrative efficiency overdialogue in order to better serve the public interest overall, given the resources available toadminister the program. Matter of HealthAmerica, 2006-PER-1, slip op. at 19 (July 18, 2006)(en banc). The purpose of the PERM process was to streamline the application process to allowapplications to be granted or denied on their face. See Labor Certification for the PermanentEmployment of Aliens in the United States; Implementation of New System, 69 Fed. Reg. 77326,77327 (Dec. 27, 2004). This is especially true following the 2007 amendments, which wereunambiguously intended to prevent a “continual back and forth exchange between the employerand the Department.” ETA, Final Rule, Labor Certification for the Permanent Employment ofAliens in the United States; Reducing the Incentives for Opportunities for Fraud and Abuse andEnhancing Program Integrity, 72 Fed. Reg. 27904, 27916 (May 17, 2007). The ETA explicitlyrefuted allowing even one opportunity to correct “a non-substantive technical error” because theagency felt doing so would pose “a significant, costly drain on the PERM case managementsystem and staff.” Id. at 27917-18. When seeking a permanent labor certification for a professional employee, an employermust conduct at least three additional recruitment steps. 20 C.F.R. § 656.17(e)(1)(ii). One of theavailable additional recruitment steps is the “use of an employee referral program withincentives . . . .” § 656.17(e)(1)(ii)(G). This step “can be documented by providing dated copiesof employer notices or memoranda advertising the program and specifying the incentivesoffered.” Id. The regulations also require an employer to maintain all supporting documentationof all recruitment steps taken and all attestations made in the application for labor certificationfor five years. 20 C.F.R. §§ 656.10(f), 656.17(a)(3), 656.17(e)(1). A substantial failure by an -4-
  5. 5. employer to provide the documentation required by the audit will result in the application forpermanent labor certification being denied. 20 C.F.R. § 656.20(b). Employer indicated in its ETA Form 9089 Item I.d.19 that it used an employee referralprogram with incentives. (AF 109). However, Employer failed to provide documentaryevidence during the file audit to validate the program’s applicability to the position offered andidentify the incentives involved. (AF 68). The evidence offered by Employer during the courseof the audit to document the employee referral program stated only: “This is an attractiveincentive based-employee scheme which encourages Patni-ites to refer their buddies or friends tojoin Patni.” (AF 68). Such a description fails to provide adequate information as to whether theoffered position is covered under the employee referral program and the correspondingincentives for referral. Employer provided additional documentation of the employee referralprogram in its Request for Reconsideration. (AF 20-24). Pursuant to section 656.24(g)(2), for applications submitted after July 16, 2007, the typeof evidence that can accompany a motion for reconsideration is limited to the following: (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). Applying the regulation, an employer may only submit new evidence with its motion forreconsideration if it did not have a prior opportunity to submit the evidence before the denial. 20C.F.R. § 656.24(g)(2)(i)-(ii); see Denzil Gunnels d/b/a Gunnels Arabians, 2010-PER-628, PDFat 15 (Nov. 16, 2010). If the employer failed to initially provide in its audit response a documentrequested in the CO’s Audit Notification, the employer cannot remedy the omission by includingthe document in its request for reconsideration. Furthermore, on appeal, BALCA can onlyconsider evidence that was part of the record upon which the CO’s decision was made. See 20This same appellate review approach is used by numerous agencies including the BIA.In stark contrast, AAO can and does issue its own RFEs, NOIDs, and Notices ofderogatory information under its full de novo review authority. -5-
  6. 6. C.F.R. §§ 656.26(a)(4)(i), 656.27(c). Therefore, BALCA is precluded from considering anyevidence that was not considered by the CO. Denzil Gunnels, 2010-PER-628 at 12. In this case, the CO specifically requested in its Audit Notification that the Employersubmit “documentation as outlined in 656.17(e).” (AF 102). The Employer submitteddocumentation of an employee referral program in its audit response, but the documentation didnot meet the requirement of section 656.17(e)(1)(2)(G) that the employee referral program bedocumented “by providing dated copies of employer notices or memoranda advertising theprogram and specifying the incentives involved.” 20 U.S.C. § 656.17(e)(1)(2)(G). The Employerhad an opportunity to provide in its audit response a properly documented employee referral planwith properly identified incentives, but failed to do so. Thus, under § 656.24(g)(2), theadditional information detailing the employee referral plan included in the Employer’s requestfor reconsideration cannot be considered, and the Employer cannot overcome the CO’s initialdenial. Because the Employer has not met his burden in this case, we affirm the CO’s denial ofcertification.2 ORDER It is ORDERED that the denial of labor certification in this matter is herebyAFFIRMED. For the Panel: TIMOTHY J. McGRATH Administrative Law JudgeBoston, MA2 Because we affirm the denial on this ground, we do not address the other reasons for denial given by the CO. -6-
  7. 7. 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. -7-