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Cite as: Yahoo Inc., 2011-PER-02352 (October 19, 2012) (BALCA)U.S. Department of Labor                  Board of Alien Lab...
This matter arises under Section 212(a)(5)(A) of the Immigration and Nationality Act, 8U.S.C. § 1182(a)(5)(A), and the “PE...
The regulations require that an employer that files an application for permanent laborcertification must provide notice to...
Voodoo Contracting Corp., 2007-PER-1 (May 21, 2007).               The regulation at 20 C.F.R. §656.17(f) provides in pert...
IT IS ORDERED that the denial of labor certification in this matter is herebyAFFIRMED.                                    ...
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Yahoo Inc 2011 PER-02352 (Oct-19-2012) (BALCA)

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Yahoo Inc 2011 PER-02352 (Oct-19-2012) (BALCA)

  1. 1. Cite as: Yahoo Inc., 2011-PER-02352 (October 19, 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: 19 October 2012 BALCA Case No.: 2011-PER-02352 ETA Case No.: A-08344-12547 In the Matter of: YAHOO! INC., Employer on behalf of MANI, SHIVRAM, Alien. Certifying Officer: William L. Carlson Atlanta National Processing Center Appearances: Petra Tang, Attorney at Law Berry Appleman & Leiden LLP San Francisco, CA For the Employer Gary M. Buff, Associate Solicitor Office of the Solicitor Division of Employment and Training Legal Services Washington, D.C. For the Certifying Officer Before: Romero, Price, and Rosenow Administrative Law Judges DECISION AND ORDER AFFIRMING DENIAL OF CERTIFICATION
  2. 2. This matter arises under Section 212(a)(5)(A) of the Immigration and Nationality Act, 8U.S.C. § 1182(a)(5)(A), and the “PERM” regulations found at Title 20, Part 656 of the Code ofFederal Regulations (C.F.R.). BACKGROUND On December 9, 2008, the Certifying Officer (CO) accepted for filing Employer’sApplication for Permanent Employment Certification (ETA Form 9089) for the position of“Computer SW Engineer, Systems [sic].” (AF 1).1 The ETA Form did not list any travelrequirements. The Notice of Filing (NOF) filed by Employer contains a requirement that theapplicant/position “may require travel.” (AF 59). On October 19, 2009, the CO notified Employer that its ETA Form 9089 was selected foraudit. (AF 98-101). Among other documentation, the CO directed Employer to submit itsrecruitment documentation. (AF 60-88). Employer responded on November 6, 2009. (AF 20-97). On January 21, 2011, the CO denied certification of Employer’s application on theground that the employer’s advertisements did not provide a specific description of the vacancyto apprise the U.S. workers of the job opportunity in violation of 20 C.F.R. § 656.10(d)(4) and 20C.F.R. § 656.17(f)(7). (AF 17-19). Employer requested reconsideration of the decision onFebruary 16, 2011, arguing the advertisements did not contain job requirements or duties listedon the ETA Form 9089 and the content of the advertisements was sufficient to inform U.S.workers of the job opportunities. (AF 2-16). The CO found that Employer’s request did not overcome the deficiencies stated in thedetermination letter and thus forwarded the case to the BALCA on August 8, 2011. (AF 1). TheBALCA issued a Notice of Docketing on November 18, 2011. Employer filed a Statement ofIntent to Proceed on December 1, 2011. The CO did not file a Statement of Position, but urgedaffirmation of the decision based on the inconsistencies regarding the ETA Form 9089 and theNOF noted above. DISCUSSION1 In this decision, AF is an abbreviation for Appeal File. -2-
  3. 3. The regulations require that an employer that files an application for permanent laborcertification must provide notice to the employer’s employees at the facility or location ofemployment. 20 C.F.R. § 656.10(d)(ii). The applicable regulation provides, in pertinent part: The notice must be posted for at least 10 consecutive business days. The notice must be clearly visible and unobstructed while posted and must be posted in conspicuous places where the employer’s U.S. workers can readily read the posted notice on their way to or from their place of employment. Appropriate locations for posting notices of the job opportunity include locations in the immediate vicinity of the wage and hour notices required by 29 CFR 516.3 or occupational safety and health notices required by 29 CFR 1903.2(a). In addition, the employer must publish the notice in any and all in-house media, whether electronic or printed, in accordance with the normal procedures used for the recruitment of similar positions in the employer’s organization. The documentation required may be satisfied by providing a copy of the posted notice and stating where it was posted, and by providing copies of all the in-house media, whether electronic or print, that were used to distribute notice of the application in accordance with the procedures used for similar positions within the employer’s organization.20 C.F.R. § 656.10(d)(ii). Additionally, the regulations provide the NOF must contain theinformation required for advertisements in newspapers of general circulation or in professionaljournals by 20 C.F.R. § 656.17(f). 20 C.F.R. § 656.10(d)(4). In the instant case, the ground fordenial was that the job opportunity described in the employer’s advertisement does not match thejob requirements listed in the ETA Form 9089 in violation of 20 C.F.R. § 656.10(d)(4) and 20C.F.R. § 656.17(f)(3). In this case, the job opportunity was not specific enough to apprise U.S. workers of thejob opportunity and did not match the job requirements described on the ETA Form 9089 inviolation of 20 C.F.R. § 656.10(d)(4) and 20 C.F.R. § 656.17(f)(6). Employer argues that thecontent of the advertisement is sufficient to apprise U.S. workers of the job opportunity and thatthe travel requirement in the advertisement is not a mandatory requirement and therefore doesnot differ from the description provided on the ETA Form 9089. The NOF is not a mere technicality, but is an implementation of a statutory noticerequirement designed to assist interested persons in providing relevant information to the COabout an employer’s certification application. It is not a regulation to be lightly dismissed under aharmless error finding. See Riya Chutney Manor, LLC, 2010-PER-177 and 191 (Apr. 7, 2010); -3-
  4. 4. Voodoo Contracting Corp., 2007-PER-1 (May 21, 2007). The regulation at 20 C.F.R. §656.17(f) provides in pertinent part that advertisements placed in newspapers of generalcirculation prior to the employer’s filing a certification application must: (3) Provide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought; (4) Indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity; (6) Not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089; and (7) Not contain wages or terms and conditions of employment that are less favorable than those offered to the alien. 20 C.F.R. § 656.17(f)(3)-(4), (6)-(7). In East Tennessee State University, 2010-PER-338 (Apr. 18, 2011) (en banc), the COfound that the employer violated 20 C.F.R. § 656.17(f)(6) by including several preferences in itsadvertisements, including that an applicant have a Ph.D. in applied linguistics, whereas thedegree requirement stated on the Form 9089 was simply a master’s degree in Spanish. The panelfound that “stating preferences in advertisements may have such a chilling or restrictive effect onthe recruitment.” Id. at 12. Therefore, employer preferences stated in recruitment will be treatedas requirements for purposes of the PERM application. Id. at 13. In the present case, Employer stated in its NOF, “Travel may be required.” Under thereasoning set forth in East Tennessee State University, this preference will be treated as arequirement because it may have caused a chilling or restrictive effect on recruitment. Underthis reasoning, the CO could have relied on any of the relevant sections, but in the present case,the Employer’s NOF violated 20 C.F.R. § 656.17(f)(3) because it contained a job requirementthat was not listed on the ETA Form 9089. The ETA Form 9089 does not indicate “travel maybe required.” If Employer had not included the requirement in its advertisements, more U.S.workers may have applied. Therefore, it was appropriate for the CO to deny certification of theapplication. Based on the foregoing, we affirm the CO’s denial of labor certification. ORDER -4-
  5. 5. IT IS ORDERED that the denial of labor certification in this matter is herebyAFFIRMED. For the Panel: Lee J. Romero, Jr. Administrative Law JudgeNOTICE 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-

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