BALCA – INDUSTRIAL STEEL PRODUCTS – 180-Day Period for Filing under 20 CFR §656.17(e)

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: 21 June 2012

BALCA Case No.: 2012-PER-00542

ETA Case No.: A-09351-78104

In the Matter of: INDUSTRIAL STEEL PRODUCTS, LLC, Employer, on behalf of CAMPOS-ROMERO, HIPOLITO, Alien.

Certifying Officer: William L. Carlson

Atlanta Processing Center

Appearances: Tarik D. Scarlata, Esquire. Hanahan

South Carolina

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: Colwell, Johnson and Vittone

Administrative Law Judges

WILLIAM S. COLWELL

Associate Chief Administrative Law Judge

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 20 C.F.R. Part 656.

BACKGROUND

On December 9, 2009, the Certifying Officer (“CO”) accepted for filing the Employer’s Application for Permanent Employment Certification for a non-professional “Operating Engineer” position. (AF 5, 9-30).1

The CO denied the application because the State Workforce Agency (“SWA”) job order was placed more than 180 days prior to the filing of the Form 9089. (AF 5-7).

The Employer filed a request for reconsideration arguing that the CO had misinterpreted the regulations.

The Employer argued that the 180-day period should be calculated based on the end date of the SWA job order, rather than the date it commenced.

The Employer argued that to interpret the regulations otherwise would penalize employers who wanted to run a SWA job order for longer than 180 days. (AF 2-3).

The CO reconsidered, but found that the ground for denial was valid. (AF 1).

On appeal, the Employer reiterated its argument, and cited the BALCA panel decisions in Ameyovi J. Oyassan, 2007-PER-68 (Dec. 17, 2007) and Calvert Masonry, 2010-PER-726 (May 13, 2011) for the proposition that the window of time in which the job order must run is determined by the end date of the job order.

In the CO’s appellate brief, the CO argued that the Oyassan decision was decided in the context of the 30-day window of time prior to the filing of the application, and acknowledging that the panel in General Electric Co., 2010-PER-763 (July 8, 2011), had read Oyassan to apply to the 180-day window of time, argued that General Electric had misread the Oyassan decision.

The CO also noted that the full Board in Karl Storz Endosopy–America, 2011-PER-40 (Dec. 1, 2011) (en banc), had determined that the recruitment period referred to under Section 656.17(e) refers to the six month period prior to the filing of the application 1 In this decision, AF is an abbreviation for Appeal File. during which all of an employer’s recruitment must be conducted, and had determined that the first recruitment step, whatever step that may be, initiates the recruitment process.

The CO later filed a letter noting that in Paolo’s Pizza & Restaurant, 2011-PER-858 (Apr. 20, 2012), a decision issued after the filing of the CO’s appellate brief in the instant case, the panel – referring to the regulatory history of PERM – had also interpreted the regulation to refer to the 180 day period commencing with the placement of the job order.

DISCUSSION

The regulation at 20 C.F.R. § 656.17(e) provides, in pertinent part:

(e) Required pre-filing recruitment. [With certain exceptions, a]n employer must attest to having conducted the following recruitment prior to filing the application:

(2) Nonprofessional occupations. If the application is for a nonprofessional occupation, the employer must at a minimum place a job order and two newspaper advertisements within 6 months of filing the application. The steps must be conducted at least 30 days but no more than 180 days before the filing of the application.

(ii) Job order. Placing a job order with the SWA serving the area of intended employment for a period of 30 days. The start and end dates of the job order entered on the application shall serve as documentation of this step.

In Blue Mountain Stone, Inc., 2010-PER-481 (Feb. 24, 2011), the panel explained why this regulation must be interpreted to refer to the commencement of the job order when calculating the 180-day period prior to the filing of the application: Under the regulations, the SWA job order must have ended at least 30 days prior to the filing of the ETA Form 9089.

Luyon Corp., 2007- PER-27 (June 12, 2007); Construction Pros Corp., 2007-PER-77 (Dec. 18, 2007). This regulatory requirement is designed to ensure that an employer has sufficient time to receive resumes, make contact with any applicants, conduct interviews, and make decisions regarding any U.S. applicants who may have applied for the job opportunity in response to the recruitment effort.

Golden Bridge Restaurant LLC, 2007-PER-99 (Dec. 18, 2007). Filing before the end of the 30 day period reflects an employer’s indifference to whether U.S. applicants are given adequate consideration for the job opportunity. Id. When it comes to the 180 day requirement, the meaning of “conducted” serves a different goal. The job order must begin no more than 180 days prior to the filing of the ETA Form 9089.

Spires Restaurant, 2009-PER-125 (Aug. 25, 2009). Filing an application within 180 days of the beginning of the job order assures that employers make a current and complete test of the labor market. If too much time passes between the placement of the job order and the filing of the application, the job order does not reflect the current labor market; it becomes stale. Here too, it reflects an employer’s indifference to whether U.S. applicants are given adequate consideration for the job opportunity. Blue Mountain Stone, Inc., supra, slip op. at 3-4 (footnote omitted). To the same effect Blue Mountain Stone, Inc., 2010-PER-485 (Feb. 24, 2011); Blue Mountain Stone, Inc., 2010-PER-487 (Feb. 24, 2011); Blue Mountain Stone, Inc., 2010-PER-488 (Feb. 24, 2011).

Although General Electric and Calvert Masonry calculated the 80-day window based on the end date of the SWA job order, we respectfully decline to follow these decisions.

First, they relied on Oyassan, and we agree with the CO that the panel in Oyassan was only addressing the 30-day time period prior to the filing of the application, and did not address how to determine the 180-day period.

Second, we find the discussion of the issue in the Blue Mountain Stone and Paolo’s Pizza & Restaurant decisions to be persuasive.

Third, the en banc decision in Karl Storz although focused on the validity dates of a prevailing wage determination, is consistent with the Blue Mountain Stone and Paolo’s Pizza & Restaurant decisions insofar as the Board ruled in in Karl Storz that “[f]or the purposes of Section 656.17(e) . . . the ‘recruitment period’ refers to the six month period prior to filing, during which all of an employer’s recruitment must be conducted.” Karl Storz, supra, slip op. at 17.

Accordingly, we affirm the CO’s denial of labor certification.

ORDER

IT IS ORDERED that the Certifying Officer’s denial of labor certification in the above-captioned matter is AFFIRMED.

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.

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