Matter of Bettina Equities – Submission of a completed SWA and fax confirmation is not enough to prove the job order was published

BALCA upheld the CO’s denial, finding that the employer’s submission of a completed SWA job order and fax confirmation sheet was insufficient to demonstrate to the CO that the job order was received and published by the SWA.

Issue Date: 04 March 2011
BALCA Case No.: 2010-PER-00151
ETA Case No.: A-07235-68780

Employer on behalf of FAUSTO PERALTA, Alien.

Certifying Officer: William Carlson
Atlanta National Processing Center

Appearances: Robert J. Shannon, Esquire
Roura, Melamed & Shannon, L.L.P.
New York, N.Y.
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: Krantz, Sarno, Bergstrom
Administrative Law Judges

Administrative Law Judge


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.”).


On May 29, 2007, the Certifying Officer (“CO”) accepted for filing the Employer’s Application for Permanent Employment Certification for the position of “Maintenance and Repair Workers, General” (AF 84-85).1 On August 28, 2007, the CO denied the application because it indicated that the job opportunity listed in Section H of ETA Form 9089 was not being offered to the alien identified in Section J, as required by 20 C.F.R. § 656.10. (AF 80-82)

On September 12, 2007, Employer timely requested review and reconsideration of the denial, arguing that it was inadvertent error to check the box in Section H16 “no” and that it should have been checked “yes.” Employer stated that the job was properly advertised and that the denial should be reconsidered in view of Matter of Health America, 2006-PER-1 (July 18, 2006)(en banc). [HealthAmerica]. (AF 69) Employer reiterated this request on September 11, 2008. (AF 66-67)

On May 7, 2009, the application was selected for audit and Employer was requested to provide specific documentation, including

A copy of the job order placed with the SWA [State Workforce Agency] serving the area of intended employment downloaded from the SWA Internet job listing side, a copy of the job order provided by the SWA, or other proof of publication from the SWA containing the content of the job order, where a job order is required by the recruitment provision of 20 CFR 656 and/or a job order is listed on the ETA Form 9089 as a recruitment source.

(AF 37-39) Employer responded to the audit on May 28, 2009, providing a completed “New York State Department of Labor Job Order Form” and a “Send Confirmation Report” confirming the job order was faxed. (AF 12-36) On August 26, 2009, the CO denied the application, stating that the documentation sent by Employer failed to confirm that the SWA ran the job order and does not show the final content of the job order as run by the SWA. Employer therefore failed to provide proof of publication of the job order from the SWA containing the content of the job order, as requested in the Audit Notification letter. (AF 9-10)

On September 24, 2009, Employer timely requested review and reconsideration of the denial, arguing that the denial was due to harmless error under HealthAmerica. Employer contends that the fax confirmation of the job order, and a follow-up letter sent to the state Department of Labor is proof that the job was properly placed. (AF 1)

The CO forwarded the case to BALCA on December 3, 2009, and BALCA issued a Notice of Docketing on January 6, 2010. The Employer filed a Statement of Intent to Proceed on January 12, 2010, but did not file an appellate brief. On February 22, 2010, the Department of Labor Associate Solicitor for the Division of Employment and Training Legal Services filed a Statement of Position, asserting that Employer failed to provide proof of publication of the job order as requested in the audit letter and required by 20 C.F.R. § 656.20(b).


PERM is an exacting process, designed to eliminate back-and-forth between applicants and the government, and to favor administrative efficiency over dialogue in order to better serve the public interest overall, given the resources available to administer the program. HealthAmerica, slip op. at 19. An employer bears the burden of proof to establish eligibility for labor certification. 8 U.S.C. § 1361; 20 C.F.R. § 656.2(b).

The PERM regulations require an employer seeking to apply for permanent labor certification on behalf of an alien to file an ETA Form 9089. 20 C.F.R. § 656.17(a). The regulations provide that incomplete applications will be denied. 20 C.F.R. § 656.17(a). The burden is on the employer to ensure that it is submitting a complete application to the Certifying Officer. 20 C.F.R. § 656.2(b); All Ohio Air Filter Sales & Service Co., 2009-PER-205 (April 7, 2010); Alpine Store Inc., 2007-PER-40 (June 27, 2007).

The CO may only certify permanent labor applications if there are not sufficient United States workers who are able, willing, qualified, and available at the time of the application. See 20 C.F.R. § 656.1(a)(1). Therefore, the CO must determine whether the Employer conducted the mandatory recruitment steps designed to apprise U.S. workers of the job opportunity in the labor application. 20 C.F.R. § 656.20(b)(1).

One of the mandatory recruitment steps an employer must undertake in order to inform U.S. workers about the job opportunity is to place a job order with the SWA serving the area of intended employment for 30 days. 20 C.F.R. § 656.17(e)(1)(i)(A). In the Audit letter, the CO specifically requested documentation to verify this step, and spelled out exactly what documents were required from Employer. Employer was to provide:

A copy of the job order placed with the SWA serving the area of intended employment downloaded from the SWA Internet job listing side,

A copy of the job order provided by the SWA, or

Other proof of publication from the SWA containing the content of the job order.

(AF 39). Employer did not provide any of these three specific documents. Instead, it provided a completed job order form and a fax confirmation sheet. These documents do not adequately demonstrate to the CO that the Job Order Form was received and
published by the SWA.

“Where a document has a direct bearing on the resolution of an issue and is obtainable by reasonable efforts, the document, if requested by the Certifying Officer, must be adduced.” In the Matter of Gencorp, 87-INA-659 (Jan. 13, 1988). The documents requested by the CO in this case had direct bearing on the resolution of the issue, and were obtainable by reasonable efforts, as the regulations require the employer to document all recruitment steps and retain documentation for five years after the date of filing the application. See 20 C.F.R. §§ 565.10(f), 656.17(a)(3), 656.17(e)(1). We therefore find that Employer’s failure to provide proof of publication of the job order as requested in the audit letter renders the application incomplete.

Finally, Employer argued that the error was harmless under HealthAmerica. In HealthAmerica, the error in question was typographical. Here, the error is failure to follow the regulations by failing to adequately respond to an audit. Even if the two errors were similar, after HealthAmerica the Employment and Training Administration (“ETA”) amended the regulations, rejecting the argument that typographical errors were immaterial, noting that “typographical or similar errors are not immaterial if they cause an application to be denied based on regulatory requirements.” ETA, Final Rule, Labor Certification for the Permanent Employment of Aliens in the United States; Reducing the Incentives for Opportunities for Fraud and Abuse and Enhancing Program Integrity, 72 Fed. Reg. 27904, 27916 (May 17, 2007). Therefore, we find that the error is neither immaterial nor harmless.


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

For the Panel:

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.

Client Reviews

I've had the pleasure of conducting business with this law firm for the last 10 years. They have been nothing but the best for every aspect of immigration need I had. From F1 all the way to citizenship. They're probably the most affordable, knowledgeable, and most efficient immigration law firm out there. Plus, they always provide responses to questions in a very timely manner. Trust me, other immigration law firms will cost you an arm and a leg for the same or less of a service compared to this law firm. Give them a call, check out their website. You will not regret it.
Andy Glasgow
Andy Glasgow
17:26 27 Mar 17
Because of John and his team my wife and I were able to travel back to the states, get married and have a Green Card without any headaches. John’s efforts were amazing and it shows because my wife and I didn’t have to go to the Green card interview. We had a strong enough case to receive the Green card in the mail. If you’re seeking a Lawyer that will be impartial, he’s your guy.
19:18 23 Feb 17
Me & husband went through immigration process which thankfully was made easy with the help and services of Marc Tyler Inc. Our direct contact was John which i want to personally say Thank You ! The service provided was efficient, fast, affordable prompt answers in a timely fashion. I would recommend Marc Tyler Inc to anyone who need immigration done fast, easy, friendly & with no hidden charges.
Aleksandra Stoycheva
Aleksandra Stoycheva
15:27 26 Jan 17
I could not have asked for better service. I will definitely be coming back to get the green card process done. The fees are extremely reasonable and they stick with their clients the entire way. I had so many questions during this process, and each one of them were answered very quickly and with out most professionalism. This firm is a pleasure to work with and I highly recommend them to anyone.
bryan mowrey
bryan mowrey
06:41 25 Nov 16
Marc and John Dorer worked on our case to file for AOS after our L1A was approved.Marc and John are professionals and extremely reasonable-priced. The reason they are able to cut the price is because they don't spend time consulting you or guiding you and will never get on call.All communications are email only, so if you know precisely what you want they will do all the paper-work, follow the trail and get the job done. If you are confused and need advice and consulting, they may not be the right lawyers.But since we were doing our AOS, it worked out perfectly well and they did their job extremely professionally.Would recommend them every time to get the work done.
hardik parikh
hardik parikh
01:58 08 Feb 17
At first I thought I could have very well gone through the green card application process on my own and saved all lawyer fees. Its funny how some lawyers can charge in excess of 2K for this. However at Taylor and Associates the price seemed more reasonable and felt it made sense to go with one at that price. There were some doubts that arose in our mind which they cleared in a timely manner and seemed very knowledgeable in this area. Its for moments like these when having a professional around helps. While we can get busy with our lives and with laws constantly changing, I would definitely recommend them - a small price to pay for peace of mind.
Callistus Pereira
Callistus Pereira
17:51 06 Jun 17
I am US citizen. We hired Marc's firm for my wife's Green Card process, We are extremely happy with their services.They are one of the best service providers in the country. Price is very affordable. John is awesome. He responded to our queries on time with very useful information. We highly recommend this firm to anybody looking for affordable and the best immigration services. it was an awesome experience working with this team.
Narsimha M
Narsimha M
13:57 04 Aug 17
Mark and team went above all my expectations of an 'online' service agency I went in with very low expectations to match the low cost of the service and was amazed that the experience was no different than going through an expensive attorney. They were very prompt on responses, very patient and also very knowledgeable on every facet of the application (including a follow up checklist). I would highly recommend them considering the low cost they charge and the high risk we take by doing this ourselves
First Dhalsite
First Dhalsite
22:27 01 Sep 17
USVISANOW streamlined the paperwork which saved us so much time. This also reduced the stress involved in filling out the paperwork. They also are very understanding and respond very quickly to questions and emails. Jackline is now a US citizen which took less than 5 months. Thank you Mr. Taylor and your team. From Brian and Jacky.
Jackline Osero
Jackline Osero
17:32 12 Sep 17
The best law agency I have ever worked with. Very responsive, experienced. I trusted my green process to them and it was done perfectly without and issues in minimum possible period. Thank You Very much Marc, John and others!!!
Hrach Gyulzadyan
Hrach Gyulzadyan
16:38 30 Sep 17
My husband and I worked with John Dorer from Marc Taylor's office, and his services exceeded our expectations. He was very knowledgeable, responsive, and our Green Card process and interview from start to finish went smoothly. Thank you so much, John, for your dedication to our case and all your help. I would highly recommend USAVISANOW to all!
Sophia Nguyen
Sophia Nguyen
17:26 09 Oct 17
Marc and John helped me apply and get my green card. They are very specific about needed documents and other details. Also, they are very responsive when you have a question. I know I emailed them several times just to ask questions that I could have found answers online myself. They are very patient and professional. If you want to get great services with reasonable fees contact them!
Amin Bagheri
Amin Bagheri
11:54 12 Oct 17
Used the services of this office for Green Card through AOS and was mainly in contact with John Dorer. I was unsure about their services at first, considering the unusually affordable cost but was pleasantly surprised by their prompt responses to all our questions and their timely preparing and handling of our documents! Will be using their services again when filing for removal of condition! Definitely recommended!
Lisa Lorentzon
Lisa Lorentzon
22:56 10 Dec 17
my wife and i worked with John Dorer from Marc Taylors Associates. He's services were awesome and amazing. i would recommend him to anybody applying for their permanent resident to work with them.
Seun Olanrewaju
Seun Olanrewaju
15:33 22 Dec 17
I was very pleased with their professional service from the beginning to the end for my citizenship application. I am a professional working in the higher education and somewhat familiar with the immigration process. For that reason, I was thinking of applying it by myself but I found Taylor and Associates whose service fee is very affordable and worth of my time. Indeed, they found some of minor mistakes in my application, which could have delayed much longer for my application process. Luckily, they caught and fixed them immediately. Their communication was excellent. In fact, everything was very smooth. Even after I had the approval notice, they followed up with valuable advices. I strongly recommend their service if you need immigration services. Thank you Marc and John for your excellent services.
Dominic Choo
Dominic Choo
17:12 23 Dec 17

Read More Client Reviews