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.