Matter of Denzil Gunnels – request for BALCA review vs reconsideration with CO

BALCA held that the CO’s discretion to reconsider a denial or treat it as a request for BALCA review under 20 CFR §656.24(g) cannot be exercised to preclude a meritorious argument regarding de facto compliance with the regulations.

Issue Date: 16 November 2010
BALCA Case No.: 2010-PER-00628
ETA Case No.: A-09175-51833

In the Matter of: DENZIL GUNNELS d/b/a GUNNELS ARABIANS,
Employer on behalf of BARRITA-SANJINES, SERVANDO, Alien.

Certifying Officer: William Carlson
Atlanta Processing Center

Appearances: Sonia Saldivar, Esquire
Yarra, Kharazi & Associates
Fresno, California
For the Employer

Gary M. Buff, Associate Solicitor
Jonathan R. Hammer, 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

DECISION AND ORDER

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”(1) regulations found at 20 C.F.R. Part 656.

BACKGROUND

On June 5, 2009, the Certifying Officer (“CO”) accepted for processing the Employer’s Application for Permanent Employment Certification for the position of “CareTaker-Ranch Hand.” (AF 16, 18-38).(2) The CO denied certification on February 23, 2010 on the ground that Section M-1 of the Form 9089 was not completed. (AF 16-17). The CO cited the regulation at 20 C.F.R. § 656.17(a), which states that incomplete applications will be denied. (AF 17).

Section M-1 asks whether the application was completed by the employer. If the answer is “no,” the preparer is required to complete a declaration in Sections M-2 through M-5 certifying that to the best of the preparer’s knowledge, the information contained in the application is true and correct, and that the preparer understands the penalties for furnishing false information or aiding, abetting or counseling another to do so. In the instant case, the Employer failed to check yes or no for Section M-1 of the Form 9089. However, a “Customer Service Coordinator,” Collette Reed, completed and signed Sections M-2 through M-5, thereby attesting that she was the preparer. (AF 35). Based on Ms. Reed’s e-mail address, it appears that she is an employee the Employer’s attorney’s law firm, Robert W. Yarra, PC. (See AF 29, 35).

By letter dated March 18, 2010, the Employer filed a “Request for Review of Denial of Form ETA 9089.” (AF 1-15). The Employer argued that the failure to check the box in Section M-1 was an inadvertent error and supplied a corrected Form 9089 with new signatures. (AF 5-14). The CO forwarded the Appeal File to the Board without addressing the Request for Review.

On appeal, the Employer informed the Board that it “seeks reconsideration by the Certifying Officer of the denial of ETA Form 9089 issued on February 23, 2010, and not a formal appeal to BALCA. A timely request for reconsideration was made in a letter dated March 18, 2010, explaining the basis for the reconsideration.” The CO filed a letter requesting, without elaboration, that the denial be affirmed. The CO did not address the question of whether the Employer was only seeking reconsideration rather than a formal appeal to BALCA.

DISCUSSION

When an employer seeks reconsideration of a denial under the PERM regulations, the CO has the discretion to either reconsider the determination or treat the Employer’s request as a request for review by the Board of Alien Labor Certification Appeals. 20 C.F.R. § 656.24(g)(4). In the instant case, the CO did not expressly state that he had chosen to treat the Employer’s request for reconsideration as a request for review. His action of forwarding an Appeal File to the Board without a ruling on the motion was an exercise of this discretion, sub silentio. The issue before the Board is whether the CO’s decision not to reconsider the denial was an abuse of discretion.

In considering whether a CO has abused the discretion to treat a motion for reconsideration as a request for BALCA review, examination of several regulations, the regulatory history, applicable caselaw, and interpretative statements on the Employment and Training Administration (“ETA”), Office of Foreign Labor Certification (“OFLC”) web site is necessary.

After the PERM program had been in effect for about two years, ETA amended the regulations. See ETA, Final Rule, Labor Certification for the Permanent Employment of Aliens in the United States; Reducing the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity, 72 Fed. Reg. 28903 (May 17, 2007) (Hereinafter “Final Rule”). The amendments sought to eliminate “modifications” to applications and sharply limit the bases upon which an employer may supplement the record. In part, the amendments were in response to the Board decision in HealthAmerica, 2006-PER-1 (July 18, 2006) (en banc).

The amendments were primarily focused on stopping attempts by applicants to modify applications once submitted. The amended rules attempted to accommodate procedural due process by acknowledging that an employer is entitled to an opportunity to present documentation to support its application. However, by focusing on preventing modifications to applications, the amended rules introduced analytical and practical problems in addressing motions for reconsideration that do not fit the “no-modifications” concern that drove the amendments.

Because of those analytical and practical problems in implementation of the amended rules, this decision states how we will apply the rule to ensure procedural due process.

The context for our decision begins with a return the Board’s decision in HealthAmerica.

The HealthAmerica Decision

A. The Ruling

HealthAmerica, 2006-PER-1 (July 18, 2006) (en banc) was the Board’s first en banc decision under the original PERM regulations. Like the instant appeal, it was about whether the CO’s denial of reconsideration was an abuse of discretion. At the time that HealthAmerica was decided, the regulation governing motions for reconsideration provided:

(g)(1) The employer may request reconsideration within 30 days from the date of issuance of the denial.

(2) The request for reconsideration may not include evidence not previously submitted.

(3) The Certifying Officer may, in his or her discretion, reconsider the determination or treat it as a request for review under § 656.26(a). 69 Fed. Reg. at 77397 (codified at 20 C.F.R. § 656.24(g) (2005)).

In HealthAmerica, the employer transposed two numbers on the Form 9089 when filling out the date of one of its required newspaper advertisements, making it appear that it had not conducted one of the two mandatory newspaper advertisements on a Sunday as required by the regulations. The CO denied certification based on a pro forma computer check of the application. The employer requested reconsideration, submitting as evidence of compliance newspaper tear sheets that proved that both newspaper advertisements had been conducted on Sundays in compliance with the regulation. The CO denied reconsideration on the grounds that (1) a request for review could not, under the regulation as it appeared at the time, include evidence “not previously submitted,” and (2) the only basis on which the CO would grant reconsideration was where a mistake by the Department of Labor resulted in erroneous denial of an application.

The Board thoroughly reviewed the caselaw and regulatory history of motions for reconsideration under the 20 C.F.R. Part 656 regulations and found that the CO abused his discretion in denying reconsideration. The Board acknowledged ETA’s authority to write strict procedural rules in order to deal with heavy administrative burdens, but held that in order to do so, ETA must give explicit notice and draft precise regulatory requirements. Id. at 17. The Board rejected ETA’s contention that the original PERM regulations had been written to require that applications be “letter-perfect” when submitted. The Board found no support in caselaw or regulatory history for the CO’s contention that only government errors were the proper subject of a motion for reconsideration. The Board also held that, because PERM required employers to maintain records in support of the application, those records were constructively part of the administrative record and did not constitute “new evidence” barred by the rule on motions for reconsideration. Id. at 21.

The Board also expressed concern about the possibility of fraud, and thus fashioned criteria that permitted a CO to discount records generated after an employer was notified of the deficiency, as opposed to records that demonstrate actual compliance had been achieved at the time of filing. Id. These criteria were (1) that the record must be the type of specific documentation required to be held; and (2) the document must have been demonstrably in existence at the time of the application. Id. The Board also suggested that if ETA’s online application system had provided a computer prompt notifying the employer in HealthAmerica that the date it entered was inconsistent with the regulatory requirements, it might not have found that the CO’s denial of reconsideration was an abuse of discretion. Id. at 22 and n.15.

B. The Limits of the Ruling

HealthAmerica is most often cited for the general due process and fundamental fairness aspects of the decision. In the regulatory history to the 2007 amendments to the PERM regulations, ETA focused on how HealthAmerica should be implemented consistent with its original intent to streamline case processing under the PERM system.

We believe it is important, however, to keep in mind that the Board in HealthAmerica expressly limited its decision to the precise circumstances of that specific case. Slip op. at 21-23. Likewise, the criteria fashioned to limit fraudulent documentation in the PERM recordkeeping file applied only to “documentation required to be held” – the first criterion. The rule did not apply to bar other types of documentation, such as documentation of extrinsic facts that could defend against some other ground for denial – for instance, a certified mail receipt showing when an employer sent documentation that the CO deemed untimely. See, e.g., Monnalisa Pastry Shop, 2008-PER-72, slip op. at 2 (June 30, 2009) (CO considered Employer’s certified mail receipt on reconsideration but held that filing was otherwise untimely). Moreover, these limitations do not apply to evidence submitted on appeal to the Board solely to support a legal argument that was preserved before the CO. See CVS Rx Services, Inc., 2010-PER-1108; 2010-PER-1275 (Nov. 16, 2010) (noting that the evidence in support of the preserved legal argument was not the type of evidence covered by the reconsideration rule because its submission did not modify the content of the application).

The 2007 Amendments to the PERM Regulations

At the time that HealthAmerica was issued, the ETA had already published the Proposed Rule, Reducing the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity, Permanent Labor Certification Program, 71 Fed. Reg. 7655 (Feb. 13, 2006) (hereinafter, “NPRM”). As the Board observed in HealthAmerica, the preamble to the NPRM stated the ETA’s intention to prohibit all modifications to an application that would effectively change an answer to the Form 9089 after its submission. Specifically, the preamble stated:

The Department is also proposing to clarify procedures for modifying applications filed under the new permanent labor certification regulation. Under proposed § 656.11(b), DOL clarifies that requests for modifications to an application submitted under the current regulation will not be accepted. This proposed clarification is consistent with the streamlined labor certification procedures of the new regulation. Nothing in the streamlined regulation contemplates allowing or permits employers to make changes to applications after filing. The re-engineered program is designed to streamline the process and an open amendment process that freely allows changes to applications or results in continual back and forth exchange between the employer and the Department regarding amendment requests is inconsistent with that goal. Further, the re-engineered certification process has eliminated the need for changes. The online application system is designed to allow the user to proofread and revise before submitting the application, and the Department expects and assumes users will do so. Moreover, in signing the application, the employer declares under penalty of perjury that he or she has read and reviewed the application and the submitted information is true and accurate to the best of his or her knowledge. In the event of an inadvertent
error or any other need to refile, an employer can withdraw an application, make the corrections and file again immediately. Similarly, after an employer receives a denial under the new system, employers can choose to correct the application and file again immediately if they do not seek reconsideration or appeal. In addition, the entire application is a set of attestations and freely allowing changes undermines the integrity of the labor certification process because changing one answer on the application could impact analysis of the application as a whole.

71 Fed. Reg. at 7659. In HealthAmerica, the Board noted that the rule prohibiting modifications to applications had not yet completed notice and comment rulemaking. Slip op. at 9. Therefore, the Board did not attempt to analyze the scope or propriety of its application.

Effective July 17, 2007, the ETA issued the Final Rule. The preamble to the Final Rule reiterated the Department’s position that the PERM program was not designed to permit exchanges between an employer and the CO for the purpose of modifying an application and that the burden to submit an accurate application rests solely on a petitioning employer. 72 Fed. Reg. at 27915-16. It also noted that the new online system for the submission of PERM applications “will now generate an automated prompt, warning the filer that it may have entered erroneous information that may cause a denial of the application” and that similar manual mechanisms were in place to detect and correct errors on mailed applications, and that “applications containing errors in contravention of system alerts are [automatically] denied.” Id. at 27916. The Department cautioned that, consistent with the prohibition on modifications to applications newly enacted at section 656.11(b), (3) requests for reconsideration seeking to correct applications containing such errors would not be granted. Id.

However, the Department did not go as far as to prohibit all situations in which an employer would seek to prove on reconsideration that its application should not have been denied because the employer actually complied with the regulations. Recognizing that the NRPM would have prohibited the type of evidence allowed on reconsideration based on the criteria in HealthAmerica, the Final Rule effectively codified a modified version of the HealthAmerica criteria for documentation held in the recordkeeping file in the form of a rule on reconsideration. This rule was intended to be an exception to the “no modification” rule, thereby “continuing to prohibit application modification but recognizing the appropriateness of an opportunity to present and consider evidence that was generated to comply with the record retention requirements of the PERM program.” Id. The rule governing reconsideration now provides, in relevant part:

(g)(1) The employer may request reconsideration within 30 days from the date of issuance of the denial.

(2) For applications submitted after July 16, 2007, a request for reconsideration may include only:

(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).

(3) Paragraphs (g)(1) and (2) of this section notwithstanding, the Certifying Officer will not grant any request for reconsideration where the deficiency that caused denial resulted from the applicant’s disregard of a system prompt or other direct instruction.

20 C.F.R. § 656.24(g) (2007). The preamble suggested that “[t]hese changes together adequately ensure that employers and others have sufficient opportunity to present evidence on salient points, even if denied that opportunity during the application’s consideration, while enabling the PERM program to function in its intended streamlined manner,” specifically acknowledging that the rule was designed to permit employers “the opportunity, if necessary, to present evidence outside the four corners of the application.” 72 Fed. Reg. at 27917-18.(4)

Responding to concerns raised by the new “no-modification” rule, the Department affirmed its intention to create a “letter-perfect” requirement for PERM filings, explicitly stating that “this rulemaking satisfies public notice and comment objectives” necessary before the implementation of a precise filing standard. Id. at 27917. However, the Department also contemplated its ability to waive the letter-perfect requirement for applicants who successfully show, on reconsideration, that the application represented a recruitment effort that actually complied with the regulations. (5) While it did not specifically allude to the reconsideration rule in the same sentence, the Department stated that it “understands that human error occurs in limited circumstances” and that “the Department believes it is capable of distinguishing between typographical or inadvertent errors and willful false statements.” (6) Id.

The CO’s Discretion to Treat Motions for Reconsideration as Requests for Review

While the Department clearly envisioned a regulatory scheme that “does nothing to limit or undermine employer due process rights,” we find that ETA failed to create a workable system of rules to apply in every situation that can arise during the PERM filing process.

We are compelled to interpret the rules in a manner consistent with procedural due process. We hold herein that the CO’s discretion under the amended Section 656.24(g) cannot be exercised to preclude an employer from the opportunity to be heard on meritorious arguments regarding its de facto compliance with the regulations.

The regulation at 20 C.F.R. § 656.24(g)(4) provides that “[t]he Certifying Officer may, in his or her discretion, reconsider the determination or treat it as a request for review under § 656.26(a).” The scope of BALCA review is limited to the record before the CO issuing his denial. Eleftheria Restaurant Corp, 2008-PER-148 (Jan. 5, 2008). In relevant part, Section 656.27(c) of the PERM regulations provides that BALCA “must review a denial of labor certification . . . on the basis of the record upon which the decision was made, the request for review, and any Statements of Position or legal briefs submitted.” After the effective date of the 2007 amendments to the PERM regulations, the regulations governing BALCA review now also provide, in relevant part:

[W]ith respect to a denial of the request for review,[7] statements, briefs, and other submissions of the parties and amicus curiae must contain only legal argument and only such evidence that was within the record upon which the denial of labor certification was based.”

20 C.F.R. § 656.26(a)(4)(i) (2007). Therefore, BALCA is precluded from considering any evidence or argument that was not considered by the CO – on reconsideration or otherwise.

ETA’s OFLC posted an “FAQ” on its web site on December 1, 2009. That FAQ encourages employers to use clear language in reconsideration or appeal requests to help OFLC put the matter in the correct queue. The FAQ is advice of “best practices.” FAQ responses cannot create a substantive rule adverse to an applicant without first undergoing notice and comment rulemaking. The Board addressed this issue in HealthAmerica, stating:

Although web site FAQ postings are a very powerful method of disseminating information and undoubtedly provide helpful guidance to applicants and their representatives, they are not a method by which an agency can impose substantive rules that have the force of law.

Slip op. at 12-13. Therefore, to the extent that the OFLC has relied on an FAQ to alter the requirements of the regulations, those actions were ineffective. FAQs may be used to clarify a regulation but may not be used to change its requirements. Id.

Even assuming arguendo that the FAQ responses on the OFLC web pages should be given controlling weight, the responses lack the clarity necessary to put an employer on sufficient notice of how it should style its post-denial requests to proceed with exhaustion of all available administrative remedies. In its response to FAQ 1, which outlines the various routes an employer may take after denial of its application, the OFLC advises, “Depending on the specific language used in the cover letter of the employer’s appeal, the Department will assign the appeal request to the appropriate appeals queue.” (8)

In the FAQ 2 response, the OFLC states, “[a]n employer’s cover letter should make the reconsideration request by explicitly using the term ‘reconsideration’ to ensure proper classification of the appeal. If an employer’s appeal request does not indicate which type of appeal is being sought, the NPC will assume the appeal is a request for reconsideration and the appeal will enter the request for reconsideration appeals queue.” (emphasis added). This response was listed on the web page under the bolded heading, “I would like the NPC to reconsider its decision on my labor certification application. What should I include in my appeal to receive NPC reconsideration on my application?”

Five responses later, ETA notifies employers in its response to FAQ 7 that if they do not want ETA to reconsider its decision but would like to request only BALCA review, “An employer’s cover letter should expressly include the terms ‘request for review’ to notify the NPC of the desired request for only BALCA review.” While this advice might aid an employer who seeks to fulfill the purpose addressed by the question, it does not admonish other employers who might seek to avoid the inadvertent result of precluding the opportunity for reconsideration.

Nowhere in the FAQ responses does ETA state that an employer’s failure to use the magic word “reconsideration” will result in the application being placed in the BALCA queue. Moreover, the response to FAQ 2 advises that the reconsideration queue is the default for ambiguous requests. Likewise, nowhere in the FAQ responses does ETA advise that the inadvertent use of the words “request for review” will result in the case being automatically forwarded to BALCA, particularly where the request is otherwise clearly postured as a request for reconsideration by the CO.

Misleading statements contained in letters, guides, or other informal agency advisories that inure to the detriment of the reader cannot be enforced to the extent that such statements actually deprive a party of its rights under the law. See Key v. Lumberjack Meats, Inc., 611 F. 2d 602, 603 (5th Cir. 1980). As such, the informal policies laid out in the online ETA responses to FAQs do not clearly state the CO’s interpretation of them, nor do the regulations require that a “request for reconsideration” can only be styled under that heading. While Section 656.24(g)(4) gives the CO the discretion to treat any request for reconsideration as one for review, to do so with the effect of denying an uninformed employer its sole opportunity to develop the appellate record is an abuse of discretion, as well as an inefficient use of administrative resources. See HealthAmerica, supra, slip op. at 7, n.8.

Accordingly, we will apply the regulations governing our scope of review as triggered by the CO’s exercise of discretion as follows:

Step 1. Determine whether the CO exercised the discretion to treat a motion for reconsideration as a request for BALCA review

Where an employer unambiguously requests BALCA review, it makes a tactical decision to have the Board rather than the CO review the denial of certification. The employer is deemed to understand that the consequence of the decision to opt for direct BALCA review is that the employer cannot supplement the record with argument or evidence that was not before the CO when the CO denied the application. See 20 C.F.R. §§ 656.26(a)(4)(i); 656.27(c).

Where an employer’s request for review of a denial is phrased as a request for reconsideration, or when, despite using the words “request for review” it is clear that the employer was actually seeking reconsideration by the CO, or where the employer’s request is ambiguous: if the CO exercises the discretion to treat the request as a request for BALCA review without ruling on the merits of the employer’s request, the ultimate inquiry for the Board will be whether the CO abused that discretion. If the motion is dependent, however, on supplemental argument or documentation, the Board must determine whether the documentation was type of documentation that the CO could have considered on reconsideration under Section 656.24(g)(2).

Step 2. Determine whether the employer’s supplemental argument or evidence would have been barred under Section 656.24(g)(2)

Reading the amended Section 656.24(g)(2) in concert with its regulatory history and other guidance issued by the ETA, it is evident that the rule contemplated only two permissible categories of evidence that the CO could consider on reconsideration. The first category, evidence that the Department “actually received” from the employer in response to a request by the CO, seems to contemplate the following pattern:

1) Application is Filed -> Audit -> Audit Response -> Final Determination -> Reconsideration based on evidence submitted in audit response

See § 656.24(g)(2)(i).

The second category, evidence that the employer (1) did not have a previous opportunity to present, that (2) existed at the time the application was filed, and (3) was maintained in support of the application, seems to contemplate a pattern in which no audit was conducted:

2) Application is Filed -> Denial of Application -> Reconsideration based on evidence of the type that would ordinarily be submitted in an audit response

See § 656.24(g)(2)(ii). For applications that follow this precise pattern that result in an employer’s failure, after adequate notice, to submit its supporting argument or documentation at the procedurally appropriate time, the CO will not be found to have abused his discretion in forwarding the case to the Board on the ground that the CO’s action prevented the employer from perfecting a record for review. In other words, for cases in which the supplementary argument or evidence is squarely barred by the proper application of Section 656.24(g), the CO will not be held to have abused his discretion to
treat a motion for reconsideration as a request for BALCA review on grounds that exercise of the discretion denied the employer an opportunity to present relevant argument or evidence because, under the rule, an employer must present that argument or evidence at the first opportunity.

Another element of the analysis, however, is whether the employer was in fact given an adequate opportunity to address the ground or grounds on which the CO’s denial of certification was based.

Step 3: Where the Employer never had an adequate opportunity, after notice(9) of the deficiency, to supplement the record on review, did the CO abuse his discretion to treat the motion for reconsideration as one for BALCA review?

Referring to the aforementioned intended applications of the rule on reconsideration, in Situation 1, the circumstances of an audit may not be specific enough to put an employer on notice of the potential deficiency with its application where the type of documentation at issue is not the standard documentation submitted in response to an audit. Thus, we hold that in such circumstances, the CO will be required to request, with specificity, the documentation sought in order for the audit or other request to fulfill the predicate requirement under the regulation that the CO “request” the documentation. Otherwise, requests for reconsideration appearing to fall under Situation 1 will actually fall under Situation 2, because the employer will not be deemed to have had a prior opportunity to present the evidence.

In Situation 2, analytical and procedural problems arise where the employer seeks reconsideration but the CO exercises his discretion to treat the request as one for BALCA review instead. In these cases, forwarding the Appeal File immediately to the Board has the effect of depriving the employer of its full opportunity to develop the record for appellate review where the type of evidence offered is the type that could have been considered by the CO on reconsideration. In this circumstance, we will return the matter to the CO for further processing so that the Employer will have a fair opportunity to present its evidence to the finder of fact. We hold that the CO will be found to have abused his or her discretion when treating what is substantively a request for reconsideration as a request for BALCA review where doing so would have the unsolicited effect of precluding the employer from developing the necessary factual record upon which the denial of certification is properly based under the amended regulations.

The Appeal Sub Judice

In the instant case, the Employer titled its request: “Request for Review of Denial of Form ETA 9089.” This title suggests that it was seeking BALCA review. However, the letter was addressed “Attention: Certifying Officer, William Carlson.” It included the salutation “Dear Officer Carlson.” It stated “Should you require further information, please contact [the Employer’s attorney].” (AF 2) (emphasis added). Thus, despite the use of the words “Request for Review” in the title of the request, the context of the letter strongly suggests that the Employer was seeking reconsideration by the CO. Perhaps the request was ambiguous. But since the request was not clearly a request for direct review by BALCA, we find that the CO exercised the discretion to treat a request for reconsideration as a request for BALCA review, and therefore proceed to consider whether the CO abused that discretion.

In the instant case, the Employer’s position is a primarily a legal argument that inadvertent failure to check Question M-1 on the form was remedied by the completion of the remainder of Section M which clearly advised the Department of Labor that the Form 9089 had been completed by someone other than the Employer. In other words, the CO elevated form over substance. Since a request for review “must contain only legal argument and only such evidence that was within the record upon which the denial of labor certification was based,” direct review by BALCA bars our consideration of this argument. Thus, it was an abuse of discretion for the CO to treat the Employer’s request as a request for BALCA review without first issuing a ruling on reconsideration because it denied the Employer the opportunity to be heard on its legal argument.

ORDER

Based on the foregoing, we GRANT the Employer’s request to remand this matter for reconsideration by the CO.SO ORDERED.

For the panel:

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
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.

1 PERM stands for “Program Electronic Review Management” system. See DOL Annual Report, Fiscal Year 2004, at 284.

2 In this decision, AF is an abbreviation for Appeal File.

3 The amended modification rule now provides: “Requests for modifications to an application will not be accepted for applications submitted after July 16, 2007.” 20 C.F.R. § 656.11(b) (2007).

4 We acknowledge that the text of the regulation might be interpreted as foreclosing the use of any documentation in support of a motion for reconsideration if it was it was not “maintained by the employer to support the application for permanent labor certification in compliance with the requirements of § 656.10(f).” As explained in this opinion, preventing an employer from using other types of evidence to respond to a CO’s denial may, in certain circumstances, deny an employer a meaningful opportunity to provide relevant documentation in a motion for reconsideration. Therefore, this panel will apply Section 656.24(g)(2) in the context in which it arose in HealthAmerica, meaning that documentation that should have been maintained as part of an employer’s audit file must meet the 656.24(g)(2) criteria to be used in support of a motion for reconsideration. See, e.g., Techdemocracy LLC, 2009-PER-459 (Nov. 16, 2010) (motion for reconsideration based on substitution of reported web site advertisement for a different web site advertisement).

5 We find further evidence that the 2007 amendments were not intended to completely foreclose grants of certification despite errors or ambiguities in the application in the CO’s pattern of requests for remands by the Board for the purpose of additional processing. See, e.g., Jessie’s Bake Shop, 2010-PER-1039 (Nov. 16, 2010) (to permit consideration of documentation of nature of employer’s business); Neuroassociates, 2010-PER-1054 (Nov. 16, 2010) (to permit correction of date); Montessori of Alameda, LLC, 2010-PER-1167 (Nov. 16, 2010) (accepting Employer’s clarification that listing of job in Section K was not intended to show alien worked for that educational institution, but rather to show that alien meet coursework requirement for the job, and there was no place else on the Form 9089 to show that coursework).

6 The Department further clarified its intention to accept certain “corrections” to applications on reconsideration in an interpretive statement issued in an FAQ on the ETA webpage on December 1, 2009:

Question: I filed an application that was denied based on incorrect or missing information on the ETA Form 9089. I would like to correct the errors and appeal the denial. How should I file this appeal to notify the NPC of my request?

Answer: An employer may, in limited circumstances as outlined below, make corrections to the denied application and appeal the denial by requesting reconsideration within 30 days from the date of issuance of the denial. An employer only may make corrections to a denied application and appeal the decision if the incorrect or missing information is the result of a typographical error or oversight and the correction is supported by documentation that existed at the time the Application for Permanent Labor Certification was filed (e.g., tear sheet or other advertisements, notice of filing, prevailing wage determination, etc.). This documentation will be accepted for reconsideration only if the employer did not have an opportunity to present the documentation previously (e.g., in response to an audit notification letter or other such request by the Certifying Officer). Requests for reconsideration will be adjudicated in the reconsideration appeals queue. If the CO chooses to uphold the decision the application will be forwarded to BALCA. If the CO chooses to overturn the decision the application will be processed according to Department procedures.

http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm.

7 Neither BALCA nor the CO has the authority to deny requests for review. Accordingly, we must resolve the ambiguity in this regulation. We find, for the following reasons, that the phrase “with respect to a denial of the request for review . . .” was a typographical error and should have read, “with respect to a denial, the request for review . . .”

First, the regulation, entitled “Board of Alien Labor Certification Appeals review of denials of labor certification,” was originally focused on denials of certification, as was the proposed version of the amendment. It was only in the final rule, when ETA was attempting to revise the rule to accommodate a distinction between appeals of denials of certification from appeals of revocations or debarments, that the phrase “denial of the request for review” crept into the rule with ETA’s attempt to use parallel construction to describe the difference in scope of review by BALCA in the two circumstances.

Second, Section 656.26(a)(2) as originally promulgated under the PERM regulations stated:

(2) The request for review, statements, briefs, and other submissions of the parties and amicus curiae must contain only legal argument and only such evidence that was within the record upon which the denial of labor certification was based.

ETA, Final Rule, Labor Certification Process for the Permanent Employment of Aliens in the United States [“PERM”], 20 CFR Part 656, 69 Fed. Reg. 77326 (Dec. 27, 2004). The NPRM moved this subsection to (a)(4), but did not refer to denial of a “request for review. Section 656.26(a)(4) as proposed read:

(4) The request for review, statements, briefs, and other submissions of the parties and amicus curiae must contain only legal argument and only such evidence that was within the record upon which the denial of labor certification, revocation, or debarment determination was based.

71 Fed. Reg. at 7655 (Feb. 13, 2006).

Lastly, the preamble to the Final Rule does not make any reference to an attempt by ETA to create a new type of procedural step of denial of a request for review to be appealed from. Rather, the preamble makes reference in this context to review of the “denial of an application:” See 72 Fed. Reg. at 27907(emphasis added).

8 See n.6, supra for citation to the web site. This FAQ was posted in the same set of responses that advised an employer on the limited circumstances available to correct its application on reconsideration.

9 The regulation states that “notice” can be achieved by either an audit notification letter or other notification by the CO.