Matter of Ifuturistics – Request to Review from BALCA vs Reconsideration from CO

BALCA affirmed the CO’s finding that Computer magazine was not a professional journal. (unable to consider new evidence submitted by the employer with its request for review).

Issue Date: 21 April 2011
BALCA Case No.: 2010-PER-00631
ETA Case No.: A-09137-45476

In the Matter of:IFUTURISTICS, INC.,
Employer on behalf of VENKATA TADI, Alien.

Certifying Officer: William Carlson
Atlanta National Processing Center

Appearances: Kusuma Pandula, Esquire
Altamont, New York
For the Employer

Gary 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: Romero, Kennington, and Rosenow
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.”).

BACKGROUND

On May 19, 2009, the Certifying Officer (“CO”) accepted for filing the Employer’s Application for Permanent Employment Certification for the position of Computer Systems Analyst (AF 17).1 On February 19, 2010, The CO sent a denial determination (AF 5-6) stating that the journal the Employer used to advertise the job opportunity was not a recognized journal on websites and does not qualify as a professional journal. On March 13, 2010, the Employer’s representative wrote a letter to the Atlanta Processing Center requesting a review of the denial, stating that it fulfilled its obligation to advertise the job opportunity per the mandatory required steps and that the magazine utilized, Computer, is a recognized professional journal. The Employer included six pages of information from the IEEE website, which describes Computer magazine as covering all aspects of computer science and that “for more than 40 years, developers, researchers, and managers have relied upon Computer for timely, peerreviewed information about research, trends, best practices, and changes in the profession” (AF 7).

The CO forwarded the case to the Board of Alien Labor Certification Appeals (Board or “BALCA”) on April 22, 2010 and BALCA issued a Notice of Docketing on February 17, 2010. The Employer filed a Statement of Intent to Proceed on June 16, 2010 along with a legal brief. The CO filed its brief on July 28, 2010.

DISCUSSION

Under 20 C.F.R. § 656.17(e), most sponsoring employers are required to attest to having conducted recruitment prior to filing the application. Sponsoring employer are normally required to attest to having placed two print advertisements on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the worker likely to apply for the job opportunity. 20 C.F.R. § 656.17(e)(1)(i)(B) and 656.17(e)(2)(ii). An exception under 20 CFR § 656.17(e)(1)(B)(4) provides that if the job requires experience and an advanced degree and a professional journal would normally be used to advertise the job opportunity, the employer may substitute for a Sunday advertisement an ad in the professional journal most likely to bring responses from able, willing, qualified, and available U.S. workers.

Employer argues that Computer magazine is a professional journal within the meaning of the regulation and that the word “journal” is not defined by the regulations. Solicitor responds that the CO’s denial should be affirmed based upon the reasons stated in the denial determination, specifically, that “research indicates that the journal listed in Section I(c)11 to advertise the job opportunity per the mandatory recruitment steps, Computer, is not recognized on journal websites and does not qualify as a professional journal.”

Thus the fundamental dispute in this case is whether Computer magazine is a qualifying professional journal. The burden is on Employer to establish that it is. Because the Employer requested a review before BALCA, rather than reconsideration from the CO, we are limited by 20 C.F.R. § 656.27(c) to an analysis based upon evidence upon which the CO’s denial was made. Consequently, the six pages of information related to the significance of the IEEE, as a preeminent technical society, which likely would have carried Employer’s burden, is not properly before us. We are therefore constrained procedurally to affirm the denial, despite the fact that the CO was arguably incorrect in his determination that Computer magazine is not a qualifying professional journal.

ORDER

IT IS ORDERED that the denial of labor certification in this matter is hereby AFFIRMED.

For the Panel:

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