Matter of Café Italiano – Denial of Unsigned ETA 9089 Submitted by Mail

BALCA affirmed the CO’s denial and rejected the employer’s argument that he was forced to submit the application without the alien’s signature because the alien currently works in a rural region of Kosovo with limited mail service.

Issue Date: 27 January 2011
BALCA Case No.: 2010-PER-00256
ETA Case No.: A-07233-67874

In the Matter of: INKAD LLC/CAFÉ ITALIANO,
Employer on behalf of ARDIAN IBRAHIMAJ, Alien.

Certifying Officer: William Carlson
Atlanta National Processing Center

Appearances: Paul Krauss, Esquire
Law Offices of Albert Wunsch, III
For the Employer

Before: Romero, Kennington, and Rosenow
Administrative Law Judges

DECISION AND ORDER 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

By submission postmarked May 23, 2007, the Employer mailed to the Certifying Officer (“CO”) an Application for Permanent Employment Certification for the position of Cook (AF 21-30 ).1 The CO accepted the application on August 28, 2007, and issued a denial determination regarding the application on nine grounds (AF 18-20). In a letter dated September 14, 2007, the Employer requested a review of the application (AF 5-6). The Employer argued that it had substantially complied with the regulations but had mistakenly overlooked portions of the application. On January 6, 2010, the CO issued a letter stating that the Employer’s request did not overcome all the deficiencies of the application and that the case was being forwarded to the Board of Alien Labor Certification Appeals (Board or “BALCA”) for administrative review. The denial notification stated that the application was denied because the foreign worker did not sign Section L-2 of the ETA Form 9089 before submission and that the wage offered was less than the prevailing wage listed in Section F of the ETA Form 9089.2

The CO forwarded the case to BALCA on January 6, 2010 and BALCA issued a Notice of Docketing on February 1, 2010. The Employer filed an appellate brief on March 12, 2010, arguing that the alien worker resides in a rural region of Kosovo with limited mail service, forcing the Employer to submit the application without the alien worker’s signature. Additionally, the Employer’s counsel argued that the stated high end of the range ($600 per week) satisfies the prevailing wage requirement under the law.

DISCUSSION

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 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). Failure of the preparer to sign Section M of the Form 9089 is not a mere technicality. TLH Construction Corp., 2010-PER-688 (Aug. 19, 2010).

The regulation at 20 C.F.R. § 656.17(a) states in pertinent part that:

Except as otherwise provided by Sec. Sec. 656.15, 656.16, and 656.18, an employer who desires to apply for a labor certification on behalf of an alien must file a completed Department of Labor Application for Permanent Employment Certification form (ETA Form 9089). The application must be filed with an ETA application processing center. Incomplete applications will be denied. Applications filed and certified electronically must, upon receipt of the labor certification, be signed immediately by the employer in order to be valid. Applications submitted by mail must contain the original signature of the employer, alien, attorney, and/or agent when they are received by the application processing center. DHS will not process petitions unless they are supported by an original certified ETA Form 9089 that has been signed by the employer, alien, attorney and/or agent.

In this case, the Employer’s representative argued that the alien worker did not have an address in the usual sense because of his village’s rural location and as a result, no signature could be obtained before the submission of the ETA 9089. The Employer’s representative stated that the CO acted in an arbitrary and capricious manner by failing to provide the Employer an opportunity to cure the deficiency.

We disagree. The burden is on the Employer to ensure the application as submitted is complete. Moreover, as noted in the
regulation, a visa petition will not be processed by DHS without an original signature of the alien. The Employer’s attempt to attach a copy of the alien worker’s employment contract with his current employer in Kosovo is insufficient. We therefore agree that the labor certification should be denied.

ORDER

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

For the Panel:

ATRICK 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.

2 Because we have affirmed the denial on the grounds that the alien worker failed to sign the application, we found it unnecessary to reach the prevailing wage issue.