324 Seventh Avenue Restaurant Corp., 2011-PER-00981 (BALCA 09-17-2012)
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Transcript of 324 Seventh Avenue Restaurant Corp., 2011-PER-00981 (BALCA 09-17-2012)
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: 17 September 2012
BALCA Case No.: 2011-PER-00981
ETA Case No.: A-10005-80259
In the Matter of:
324 SEVENTH AVENUE RESTAURANT CORP., Employer
on behalf of
CROWLEY, KEVIN JOHN, Alien.
Certifying Officer: William Carlson
Atlanta National Processing Center
Appearances: Richard A. Burke, Esq
Law Office of Richard M. Burke
New York, New York
For the Employer
Gary M. Buff, Associate Solicitor
Louisa M. Reynolds, Attorney
Office of the Solicitor
Division of Employment and Training Legal Services
Washington, DC
For the Certifying Officer
Before: Sarno, Bergstrom, Krantz
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.”).
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BACKGROUND
On March 19, 2010, the Certifying Officer (“CO”) accepted for filing the Employer’s
Application for Permanent Employment Certification for the position of “Cook” (AF 88).1 On
April 22, 2010, the DOL sent a Notification of Supervised Recruitment letter which required the
Employer to create a draft advertisement for approval. Once the advertisement was approved, the
Employer would receive specific instructions on where to publish; additionally the CO would
point the Employer to any candidates who responded to the advertisement. The Employer would
also have to submit a final recruitment report to the CO. (AF 83-86).
On May 24, 2010, the Employer asked for a 30 day extension which was granted. (AF
80). On June 21, the Employer sent the advertisements to the CO for approval. (AF 72-73).
On June 28, 2010, the CO approved the advertisements and sent a Recruitment
Instructions letter. (AF 69-71). On July 13, 2010, the Employer requested another extension, and
the CO granted the request on July 16, 2010. (AF 66).
The Employer responded twice to the Recruitment Instructions letter. First in an email on
July 27, 2010, the Employer advised the CO of the steps being taken towards compliance (AF
64), and then finally on September 10, 2010 the Employer submitted the required documents.
(AF 46-63).
Once the Employer’s recruitment period ended, the CO sent a Recruitment Report
Instructions letter on October 21, 2010. (AF 43). The Employer responded with a recruitment
report signed by the Employer’s attorney on November 22, 2010. (AF 27-28).
On December 3, 2010, the CO denied certification because (1) the Notice of Filing did
not contain the address of the appropriate Certifying Officer in Atlanta, and (2) the recruitment
report was signed by the Employer’s attorney – not the person who normally interviews job
applicants. 20 C.F.R. § 656.21(e). (AF 26).
1 In this decision, AF is an abbreviation for Appeal File.
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The Employer requested reconsideration on January 4, 2011, attaching a recruitment
report signed by the Employer as well as a Notice of Filing with the proper address. (AF 2-20)
On March 31, 2011 the CO accepted the address listed on the Notice of Filing, but denied
certification on the basis of the recruitment report’s faulty signature citing § 656.21(e). (AF 1)
The CO forwarded the case to BALCA on March 31, 2011, and BALCA issued a Notice
of Docketing on June 14, 2011. The Employer filed a Statement of Intent to Proceed on June 27,
2011, and filed a brief arguing that the amended signature is not new evidence and that the
oversight was harmless error. The Employer argues he never intended to willfully or
intentionally exclude a properly signed recruitment report. The Employer believed in good faith
that his attorney’s signature, as the Employer’s representative, would be sufficient for the
recruitment letter. The Employer also emphasizes that he has otherwise conformed to every
instruction given by the CO.
On July 14, 2011, the CO filed a letter indicating they would not be filing a brief.
DISCUSSION
The regulation at 20 C.F.R. § 656.17(g)(1) requires that the Employer prepare a recruitment
report. The report must be signed “by the employer or the employer’s representative” and
otherwise comply with the following requirements:
The employer must prepare a recruitment report signed by the employer or the
employer's representative noted in §656.10(b)(2)(ii) describing the recruitment
steps undertaken and the results achieved, the number of hires, and, if applicable,
the number of U.S. workers rejected, categorized by the lawful job related reasons
for such rejections.
Section 656.10(b)(2)(ii) describes who qualifies as an employer’s representative and
therefore, who can sign the recruitment report.
The employer's representative who interviews or considers U.S. workers for the
job offered to the alien must be the person who normally interviews or considers,
on behalf of the employer, applicants for job opportunities such as that offered the
alien, but which do not involve labor certifications.
The rationale is given in § 656.10(b)(2)(i): “[I]t is contrary to the best interests of U.S. workers
to have the alien and/or agents or attorneys for either the employer or the alien participate in
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interviewing or considering U.S. workers for the job offered the alien.” 20 C.F.R. §
656.10(b)(2)(i). The regulation specifically highlights the Employer’s attorney as an unsuitable
signatory to the recruitment report. Therefore in this case the recruitment report included in the
Audit Response which was signed by the Employer’s attorney fails to comply with the regulatory
requirements.
Additionally, BALCA may not consider the amended recruitment report filed for the first
time in the Employer’s Request for Reconsideration. The regulations at § 656.24(g)(2) limits the
type of documentation that can be included in the request for reconsideration to:
(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).
Further, the PERM regulations restrict BALCA’s review of a denial of labor certification to
evidence that was part of the record upon which the CO’s decision was made. 20 C.F.R. §§
656.26(a)(4)(i) and 656.27(c).
In this case the Employer does not argue that the CO actually received the
documentation, nor does the Employer argue it had no opportunity to present the documentation.
Therefore this new evidence may not be considered by BALCA as it was not before the CO and
does not fit one of the regulatory exceptions.
Finally, the Employer argues that the incorrect signature on the recruitment report was
harmless error. However PERM is an exacting process in which the Employer bears the burden
of proof. 8 U.S.C. § 1361; 20 C.F.R. § 656.2(b). PERM is designed to favor administrative
efficiency over back-and-forth dialogue in order to better serve the public interest overall, given
the resources available to administer the program. HealthAmerica, 2006-PER-1, slip op. at 19
(July 18, 2006) (en banc). Errors, even small ones, can be fatal in this process. As discussed
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above the Employer failed to comply with clear regulatory requirements at § 656.17(g)(1). This
failure is not harmless error.
Accordingly, we affirm the CO’s denial of certification.
ORDER
IT IS ORDERED that the denial of labor certification in this matter is hereby
AFFIRMED.
For the Panel:
DANIEL A. SARNO, JR.
District Chief Administrative Law Judge
DAS,JR./AMJ/jcb
Newport News, Virginia
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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.