Matter of Baily Int’l – Denial upheld for offering 99.51% of the prevailing wage

BALCA refused to apply Superior Landscape to round up the wage on the NOF that was 99.51% of the prevailing wage. Stated that the CO has the discretion to take a reasonable approach in cases like this.

Issue Date: 19 April 2011
BALCA No.: 2010-PER-00468
ETA No.: A-07288-85580

In the Matter of:
BAILY INTERNATIONAL OF ATLANTA, INC.,
Employer, on behalf of LEE LOKE LEE, Alien.

Certifying Officer: William Carlson
Atlanta National Processing Center

Appearances: Pei-Yao Chiu, Esquire
Monty Chiu & Associates, P.C.
Norcross, Georgia
For the Employer

Gary M. Buff, Associate Solicitor
Stephen R. Jones, 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

DECISION AND ORDER AFFIRMING DENIAL OF CERTIFICATION

PER CURIAM. 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 governing permanent alien labor certification found at Title 20, Part 656 of the Code of Federal

Regulations (“C.F.R.”).

STATEMENT OF THE CASE

On October 17, 2007, the CO accepted for processing the Employer’s Application for Permanent Employment Certification, ETA Form 9089, on behalf of the Alien for the position of Purchasing Manager. (AF 103, 107-118).1 The Employer listed both the offered wage and the prevailing wage as $67,787 per year. (AF 108). On October 30, 2007, the CO issued an Audit Notification. (AF 103-106). Among other documentation, the CO directed the Employer to submit a copy of its Notice of Filing (“NOF”). The Employer submitted its audit response under cover letter dated November 8, 2007. (AF 24-102).

The one-page copy of the NOF provided in the Employer’s response to the audit notification states the rate of pay as “$67,454.00/year.” (AF 47).

The CO denied the application on October 5, 2009 on the grounds that the NOF contained a rate of wage less than the prevailing wage and less than the offered wage, in violation of 20 C.F.R. §§ 656.10(d)(4), 656.17(f)(5) and (7). (AF 22-23). The Employer requested reconsideration on November 2, 2009, arguing that it would be “unethical and inhumane to deny a Labor Certification Application based solely on the deficiency less than .50% of the prevailing wage . . . .” (AF 3-21).

The CO denied reconsideration and forwarded the case to BALCA, and BALCA issued a Notice of Docketing on April 22, 2010. The Employer filed an appellate brief on May 24, 2010, citing Superior Landscape, Inc., 2009-PER-83 (Aug. 28, 2009), to argue that the Board should forgive the $333 difference between the prevailing wage and the wage listed on the NOF, since it equals 99.51% of the prevailing wage. The CO filed a Statement of Position on June 2, 2010, arguing that this is not a situation where “rounding” is appropriate, and asked the Board to affirm the denial.

DISCUSSION

The PERM regulations require that an employer filing an application for permanent labor certification under the basic process must provide notice to the employer’s employees at the facility or location of employment. 20 C.F.R. § 656.10(d)(ii). Additionally, the regulations provide that require that the Notice of Filing must contain the information required for advertisements by § 656.17(f) and must state the rate of pay, which must equal or exceed the prevailing wage entered by the State Workforce Agency (“SWA”) on the prevailing wage request form. 20 C.F.R. § 656.10(d)(4).

The Immigration and Nationality Act requires the Secretary to Labor to determine and certify, among other matters, that the employment of the sponsored alien “will not adversely affect the wages and working conditions of workers in the United States similarly employed.” 8 U.S.C. § 1182(a)(5)(A)(i)(II). The Act also provides that the prevailing wage required to be paid pursuant by an employer sponsoring an alien for permanent labor certification shall be 100 percent of the prevailing wage determination. 8 U.S.C. § 1182(p)(3). Consistent with this statutory requirement, the regulations provide that the wage in advertisements and the NOF may not contain a wage rate lower than the prevailing wage rate. 20 C.F.R. § 656.17(f)(5). Additionally, an employer may not include a wage in its NOF that is less than the wage offered to the foreign worker. 20

C.F.R. § 656.17(f)(7); IAC Search & Media, Inc., 2010-PER-55 (Dec. 28, 2010); RFL Electronics Inc., 2009-PER-285 (Apr. 7, 2010); Thomas L. Brown Associates, P.C., 2009-PER-347 (Sept. 1, 2009).

In Superior Landscape, the employer’s statement of its wage offer was deficient by 40 cents per week ($19.70 per hour instead of $19.71 per hour, i.e. 99.95% of the prevailing wage). Slip op. at 3. Under the precise circumstances of that case, the Board was willing to round up to 100%. Id.

In the instant case, the Employer’s NOF is deficient by $333 ($67,454 per year instead of $67,787 per year). Thus, the stated wage offer equals 99.51% of the prevailing wage and is less than the wage offered to the foreign worker. We decline to round up in this case, because the deficiency of $333 clearly violates the statutory requirement and the regulations at Section 656.17(f)(5) and (7). One hundred percent can only mean 100 percent, and we find that any mathematical manipulation is not supported by the statutory and regulatory requirements.

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

ORDER

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

Entered at the direction of the panel by:

Todd R. Smyth
Secretary to the Board of
Alien Labor Certification Appeals

Administrative Law Judge John M. Vittone, concurring.

The panel’s holding in the context of the facts of this case probably will be viewed as absurd by some persons, especially the employer. However, as an appellate body, BALCA has limited discretion to waive the clearly stated requirements of the regulation. In these kinds of situations, it is the Certifying Officer who has the discretion to take a more reasonable approach in such close calls. If he had done so, the parties would not have had to expend additional time and resources, and the purpose and goal of the PERM process would not been harmed.

1 “AF” is an abbreviation for Appeal File.

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