Board of Alien Labor Certification Appeals 800 K Street, NW, Suite 400-N Washington, DC (202) (202) (FAX)

Transcription

1 U.S. Department of Labor Board of Alien Labor Certification Appeals 800 K Street, NW, Suite 400-N Washington, DC (202) (202) (FAX) Issue Date: 27 October 2010 BALCA Case No.: ETA Case No.: 2010-PER A In the Matter of: CINETIC DYAG CORPORATION, Employer on behalf of ROZARIO, DOMINIC ASHWIN, Alien. Certifying Officer: Appearances: William Carlson Atlanta Processing Center J. Andrew Porter, Esquire Hulka Porter Immigration Law Firm Windsor, Ontario Canada 1 For the Employer Gary M. Buff, Associate Solicitor Clarette H. Yen, Attorney Office of the Solicitor Division of Employment and Training Legal Services Washington, DC For the Certifying Officer Before: Colwell, Johnson and Rae Administrative Law Judges WILLIAM S. COLWELL Associate Chief Administrative Law Judge 1 Mr. Porter is admitted to practice law in the State of Michigan. See 29 C.F.R (g)(1).

2 DECISION AND ORDER REVERSING 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 The Employer filed a Form 9089 Application for Permanent Employment Certification for the professional position of Controls Engineer. (AF 53-65). 2 The application was accepted for processing on October 2, In the portion of the Form where an employer reports the additional recruitment efforts required by the regulations for professional positions, the Employer reported posting on its own web site, use of an employee referral program, and use of a private employment firm. For the dates of the web site posting and the employee referral program, the Employer answered that the recruitment ran from 06/26/09 to Ongoing. (AF 57). The Certifying Officer ( CO ) denied certification on the ground that Section I-13 to I-22 of the Form 9089 was partially incomplete. (AF 27-28). The CO wrote: Because the employer did not fill out that section, the application is rendered incomplete and it is denied. (AF 28). The CO cited 20 C.F.R (a), which provides that incomplete applications will be denied. The Employer requested review of the denial, but stated that [a]s an alternative to an appeal, we respectfully request the option of correcting the information and submitting a new application. (AF 1). The Employer provided a modified Form 9089 that stated an end date for the web site posting and the employee referral program of 07/30/09. (AF 8). 2 In this decision, AF is an abbreviation for Appeal File. -2-

3 The CO did not address the Employer s request to correct the information, but transmitted an Appeal File directly to BALCA. On appeal, the CO argued that for applications accepted for processing after July 16, 2007, a request for modification will not be accepted pursuant to 20 C.F.R (b). DISCUSSION The CO cited 20 C.F.R (a), as the authority for denying certification. That section of the PERM regulations provides that incomplete applications will be denied. Moreover, as the CO argued on appeal, the PERM regulations were amended in 2007 to prohibit modifications to applications submitted after July 16, C.F.R (b); see 72 Fed. Reg (May 17, 2007). 3 The Employer, however, did not submit an incomplete application. Rather, it submitted an application that did not answer Questions I-15 and I-19 in the format anticipated. The instructions to the Form 9089 direct in regard to this section of the Form for dates to be entered in mm/dd/yyyy format. 4 There may be an important administrative reason for requiring the answers to Questions to I-15 and I-19 to be in mm/dd/yyyy format. But the record before us does not provide such a reason, and it is not clear to us that the answer ongoing to Questions I-15 and I-17 was substantively incorrect. 5 3 In the rulemaking about prohibiting modifications, the Employment and Training Administration ( ETA ) stated that one of the reasons for prohibiting modifications was that ETA had dramatically increased the nature and number of system prompts and warnings in an effort to provide employers and others with additional opportunities for correction prior to submission of an application. 72 Fed. Reg. at There is nothing in the record before us which establishes whether this part of the Form would have prompted the Employer that ongoing was not an acceptable answer to Questions I-15 and I-17, or whether the Employer used the ETA s online system for completing the application. See 20 C.F.R (g)(3) (CO will not grant reconsideration where deficiency resulted from disregard of a system prompt). We note that the Employer mailed in the application. (AF 65). 4 See (ETA Form Instructions). 5 We observe that the answer of ongoing was probably more accurate than the end date provided by the Employer in its request to modify the application. It appears likely that the Employer only provided end dates with the request to modify in an attempt to meet the CO s objection. -3-

4 The regulation governing additional recruitment steps for professional occupations provides in regard to the timing of those steps: Only one of the additional steps may consist solely of activity that took place within 30 days of the filing of the application. None of the steps may have taken place more than 180 days prior to filing the application. 20 C.F.R (e)(1)(ii). In the instant case, the answer ongoing to Questions I-15 and I-17, does not establish violation of these timing requirements. Accordingly, we find that the Employer s original answers Questions I-15 and I- 17 have not been shown by the CO to have violated any substantive or procedural rule. 6 ORDER In view of the foregoing, IT IS ORDERED that the CO s denial of certification is hereby VACATED and this matter will be REMANDED to the CO to GRANT CERTIFICATION. For the panel: A WILLIAM S. COLWELL Associate Chief Administrative Law Judge 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 6 As noted above, the instructions direct the applicant to answer these questions in a mm/dd/yyyy format, and there may be very good administrative reasons for requiring an answer in that format. But we do not reach the question of whether failure to follow those instructions is, in itself, grounds for denial of certification because that was not the ground for denial presented by the CO. We only find that the answer given by the Employer of ongoing was not a failure to complete the Form 9089, and that the answer given was not substantively a violation of the regulations on the timing of the additional recruitment steps for professional occupations. -4-

5 800 K Street, NW Suite 400 Washington, DC 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. -5-