Matter of Donna Ricco-FYC Apparel – Bachelor’s degree plus five years of experience is equivalent to 7 years of experience (not 17)

The Board upheld the CO’s denial, finding the job’s alternative requirements of 17 years of experience was not substantially equivalent to the primary requirements of a Bachelor’s degree plus five years of experience.

Issue Date: 23 March 2011
BALCA Case No.: 2010-PER-359
ETA Case No.: A-07253-73871

In the Matter of: DONNA RICCO-FYC APPARREL,
Employer on behalf of THERESA TAN, Alien.

Certifying Officer: William Carlson
Atlanta National Processing Center
Appearances: Lesley Guyton
Guyton Law Office
St. Paul, Minnesota
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: Lee J. Romero, Jr., C. Richard Avery and
Clement J. Kennington
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 September 12, 2007, the Certifying Officer (“CO”) accepted for filing the Employer’s Application for Permanent Employment Certification (ETA Form 9089) for the position of “Product Manager” (AF 77).1 On April 9, 2009, the CO denied certification of Employer’s application on two grounds, one of which was the alien did not meet the minimum qualifications of Bachelor’s Degree in Merchandising and five years experience in the field or equivalent combination of education and experience, in violation of 20 C.F.R. § 656.17(i)(1). Employer requested reconsideration on May 1, 2009, stating the alien has one year of university credit plus fourteen and one-half years of experience. On February 18, 2010, the CO reasoned employer’s formula of three years work experience equals one year of post-secondary education would render the equivalent of education and experience to be 17 years. (12 years experience required for Bachelor’s Degree plus five years experience). (AF 17). The CO noted that under the administrative directive, Field Memorandum NO. 48-94, issued May 6, 1994, Subject: Policy Guidance on Labor Certification Issues (FM), a Bachelor’s degree is the equivalent of two years experience. Thus, according to the FM, an equivalent to the primary requirement of Bachelor’s Degree plus five years experience would be seven years experience. Because employer’s alternative requirements of 17 years of experience are not substantially equivalent to the primary requirements for the job, the CO denied certification on reconsideration.

The CO forwarded the case to BALCA on February 18, 2010, and BALCA issued a Notice of Docketing on March 19, 2010. The Employer filed a Statement of Intent to Proceed on April 1, 2010, and filed an appellate brief on April 29, 2010, arguing “17 years of experience” was never listed on the application as an alternate requirement for the position of “product manager.” On May 20, 2010, the CO filed a Statement of Position, asserting Employer submitted its application a maximum of thirteen days after the end date of the SWA job order in violation of 20 C.F.R. § 656.17.

DISCUSSION

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, and, in the case of professional positions, additional recruitment steps designed to apprise U.S. workers of the job opportunity in the labor application. The CO should verify the employer’s attestations and determine whether the employer conducted the recruitment steps required by the regulations to ensure that U.S. workers were apprised of the job opportunity in the labor application. 20 C.F.R. § 656.20(b)(1). Further, 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. § 656.10(f), 656.17(a)(3), 656.17(e)(1).

PERM is an exacting process, designed to eliminate back-and-forth communication 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, 2006-PER-1, slip op. at 19 (July 18, 2006) (en banc). 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 job requirements listed on the application must represent the employer’s actual minimum requirements for the job opportunity and the employer must not have hired workers with less training or experience for the job opportunity. 20 C.F.R. § 656.17(i)(1)-(2). The purpose of this requirement is to address the situation of an employer requiring more stringent qualifications of a U.S. worker than it requires of the alien; the employer is not allowed to treat the alien more favorably than it would a U.S. worker. Your Employment Service Inc., 2009-PER-151 (Oct. 30, 2009) citing ERF Inc., d/b/a Bayside Motor Inn, 1989-INA-105 (Feb. 14, 1990).

The CO suggested denial on reconsideration because Employer’s alternative requirements of 17 years of experience are not substantially equivalent to the primary requirements of Bachelor’s Degree plus five years experience, or 7 years experience per the FM, as listed on the ETA Form 9089, in violation of 20 C.F.R. § 656.17(h)(4)(i). According to Employer’s own formula for equivalent experience, an applicant without a Bachelor’s Degree and five years experience would be required to have 17 years experience, which is a gross departure from the 7 year equivalent requirement as per the FM.

For these reasons, we find that it was fatal to Employer’s application in making the alternative requirements not substantially equivalent to the primary requirements for the job opportunity. Accordingly, we affirm the CO’s denial of labor certification in this matter.2

ORDER

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

For the Panel:

LEE J. ROMERO, JR.
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 affirm the denial based Employer’s failure to state the actual minimum job requirements for the job of product manager, we have not considered the other two grounds cited by the CO for denial of certification.