The Millwork Trading Co. 2011 PER-01540 (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 No.: 2011-PER-01540 ETA No.: A-08246-83404 In the Matter of: THE MILLWORK TRADING COMPANY d/b/a LI & FUNG, Employer, The job advertisements MUST be the same for U.S. workers as for the alien worker. Inconsistency is not on behalf of tolerated even when the employer states that an omission of a "travel requirement" was meant to ENCOURAGE FAINBURG,SARI, rather then DISCOURAGE U.S. workers to apply for thr Alien. open position. The same terms and conditions must be offered to BOTH the domestic workforce and the alien. Certifying Officer: William Carlson Atlanta National Processing Center Appearances: Freddi M. Weintraub Fragomen, Del Ray, Bernsen & Loewy, LLP New York, New York For the Employer Matthew Bernt Attorney, Office of the Solicitor Washington, D.C. For the Certifying Officer Before: Malamphy, Sarno, Bergstrom 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 September 8, 2008, the Certifying Officer (“CO”) accepted for filing the Employer’sApplication for Permanent Employment Certification for the position of “Senior TechnicalProduction Manager.” (AF 59-72).1 On June 5, 2009, the CO issued an Audit Notification requesting, among other things,notice of filing documentation as outlined in 20 C.F.R. § 656.10(d) and recruitmentdocumentation as outlined in 20 C.F.R. § 656.17. (AF 55-58). The Employer responded to theAudit Notification on June 26, 2009. (AF 14-54). The response included, among other things, acopy of the notice of filing posted at the Employer’s place of business pursuant to 20 C.F.R. §656.10(d), documentation of advertisements placed in a newspaper of general circulationpursuant to 20 C.F.R. § 656.17(e)(1)(i)(B), documentation of advertisements placed on a jobsearch web site other than the employer’s pursuant to 20 C.F.R. § 656.17(e)(1)(ii)(C), anddocumentation of advertisements placed in a local newspaper pursuant to 20 C.F.R. §656.17(e)(1)(ii)(I). (AF 50, AF 37-39, AF 40, AF 42-43). On October 13, 2010, the CO denied the application pursuant to 20 C.F.R. § 656.17(f)(7)because he believed the Employer’s notice of filing and advertisements for the job opportunitycontained terms less favorable than those offered to the foreign worker. (AF 10-13). Specifically,the CO stated that the PERM application listed a travel requirement not mentioned in theadvertisements and notice of filing. (AF 11-12). On October 18, 2010, the Employer requestedreconsideration. (AF 3-9). In support of its request, the Employer argued the CO hadmisinterpreted the PERM regulations and asserted that its omission of the travel requirement wasdeliberate and was intended to encourage U.S. applicants by removing an unfavorable term ofemployment. On May 31, 2011, the CO determined that the Employer’s arguments did not overcomethe deficiencies cited in the denial and forwarded the case to BALCA. (AF 1-2). BALCA issueda Notice of Docketing on August 30, 2011. The Employer filed a Statement of Intent to Proceedon September 15, 2011 and an appeal brief on October 13, 2011 reiterating its argument that anemployer should be allowed to omit a travel requirement from its advertisements and notice offiling because it is an unfavorable term of employment. In support of this argument, theEmployer cited prior BALCA opinions establishing that an employer cannot add a travelrequirement to its advertisements and notice of filing when such travel requirement was not setforth in the ETA Form 9089. The CO did not submit a brief in response, but submitted a letterreferring the Court to the administrative record and requesting affirmation of the denialdetermination on October 17, 2011. DISCUSSION The PERM program features exacting regulations designed to favor administrativeefficiency over dialogue in order to better serve the public interest, given the resources availableto administer the program. HealthAmerica, 2006-PER-1, slip op. at 19 (Jul. 19, 2006) (en banc).1 In this decision, AF is an abbreviation for Appeal File. -2-
An employer bears the burden of proving that all regulatory requirements have been satisfiedbefore labor certification can be granted. 8 U.S.C. § 1361; 20 C.F.R. § 656.2(b). The regulatory requirements an employer must satisfy include posting a notice of filing at its place ofbusiness to inform employees that it is seeking PERM certification and placing a job advertisement in a newspaperof general circulation in the area of intended employment to test the U.S. labor market. 20 C.F.R. §§ 656.10(d),656.17(e)(1)(i)(B). For professional job openings, the employer must conduct additionalrecruitment that may include steps such as placement of advertisements on a job search web siteand/or in a local or ethnic newspaper. Id. § 656.17(e)(1)(ii)(C), 656.17(e)(1)(ii)(I). The Employermust show that its notice of filing and job advertisements meet the requirements of section656.17(f). Id. § 656.10(d)(4), 656.17(e)(1)(i)(B)(3); Credit Suisse Securities, 2010-PER-00103(Oct. 19, 2010) (holding that all advertisements must have the purpose and effect of apprisingU.S. workers of the job opportunity consistent with section 656.17(f)). Section 656.17(f)(4)requires an advertisement to “[i]ndicate the geographic area of employment with enoughspecificity to apprise applicants of any travel requirements and where applicants will likely haveto reside to perform the job opportunity” (emphasis added). Section 656.17(f)(7) states thatadvertisements may not contain terms and conditions of employment that are less favorable thanthose offered to the alien. In this case, the Employer contends that its omission of the travel requirement from itsnotice of filing and advertisements did not dissuade U.S. workers from applying for the job, butrather encouraged U.S. applicants by removing an unfavorable term of employment. Thisargument is unpersuasive because the plain language of 20 C.F.R. § 656.17(f)(4) clearly requiresany travel requirement to be listed in the advertisements. Moreover, while the Employercorrectly points out that this court has previously prohibited employers from adding a travelrequirement not listed on the PERM application to their job advertisements, in other previousrulings we have made clear that employers also may not omit a travel requirement listed on thePERM application from their job advertisements. See, e.g., VF Imagewear, 2011-PER-00281(Mar. 26, 2012). A travel requirement presents a difference in a material aspect of a job. TheEmployer in this case worded its advertisements in such a way that readers were not informedthat travel may be a part of the position. Thus, the description could have deterred a potentialU.S. applicant who wanted a position that included business travel. Based on the foregoing, we find that the Employer’s advertisements and notice of filingomitted information required under 20 C.F.R. § 656.17(f)(4) and we agree with the CO’sdetermination that the advertisements and notice of filing contained less favorable employmentterms than those offered to the foreign worker in contravention of 20 C.F.R. § 656.17(f)(7).Because the Employer has failed to satisfy all regulatory requirements, we affirm the denial of certification. -3-
ORDER IT IS ORDERED that the denial of labor certification in this matter is herebyAFFIRMED. For the panel. ALAN L. BERGSTROM Administrative Law JudgeALB/ENK/jcbNewport News, VirginiaNOTICE 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 -4-