Matter of Heso Electric – employer failed to check Box M-1

BALCA remanded the case to the CO for reconsideration where the employer failed to check Box M-1 on the ETA 9089, which asks whether the application was completed by the employer, but provided the preparer’s name and signature. (Matter of Heso Electric – 4-21-11).

Issue Date: 21 April 2011
BALCA Case No.: 2010-PER-00670
ETA Case No.: A-08161-59728

In the Matter of: HESO ELECTRIC,
Employer on behalf of GILBERT PANIAGUA-GERMOSEN, Alien.

Certifying Officer: William Carlson
Atlanta National Processing Center

Appearances: Howard L. Baker
Wilens & Baker
New York, New York
For the Employer

Gary M. Buff, Associate Solicitor
For the Certifying Officer

Before: Romero, Kennington, and Rosenow
Administrative Law Judges

DECISION AND ORDER VACATING AND REMANDING 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 December 3, 2007, the Certifying Officer (“CO”) accepted for processing an Application for Permanent Employment Certification for the position of Electrical Helper (AF 10-19 ).1 On June 11, 2008, the CO issued a denial determination regarding the application because a selection was not made for Section M-1 which concerns whether or not the application was completed by the employer (AF 7-9). In a letter dated June 24,2008, the Employer requested a review of the denial (AF 1) and submitted an amended form because the preparer inadvertently did not make the appropriate selection for Section M-1. The only difference between the original and amended applications was that in the amended application, the “No” box was checked in Section M-1, signifying that the application was not completed by the employer. On April 30, 2010, the case was forwarded to the Board of Alien Labor Certification Appeals (Board or “BALCA”) for administrative review.

BALCA issued a Notice of Docketing on June 17, 2010. On June 24, 2010, the Employer filed an intent to proceed and submitted a brief on July 12, 2010. On July 30, 2010, the CO sent a letter requesting that BALCA affirm the denial based upon the original determination as made by the CO.

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 regulations provide that incomplete applications will be denied. 20 C.F.R. § 656.17(a). Additionally, the regulations provide that once an application is filed, requests for modifications to the application will not be accepted. 20 C.F.R. § 656.11(b).2

PERM is an exacting process, designed to eliminate back-and-forth between applicants and the government and to favor administrative efficiency. Given the resources available to administer the program, such efficiency benefits the public overall. HealthAmerica, 2006-PER-1, slip op. at 19 (July 18, 2006) (en banc). 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). For example, 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 CO argues that the original application was incomplete, because a selection was not made for Section M-1, which asks whether the application was completed by the employer. The Employer argues that the preparer merely made a typographical error that could have easily been corrected during processing.3

The Employer did not argue that it was requesting a reconsideration by the CO rather than BALCA review, and except for this difference, many of the facts of this case mirror those of a 2010 BALCA decision, Gunnels, 2010-PER-626 (November 16, 2010).

In that decision, the Employer had neglected to check the box in Section M-1, but similarly provided a preparer’s name and signature, thereby signifying that someone other than the Employer had filled out the Form 9089. The request for review by Employer was somewhat ambiguous, because it was entitled “Request for Review” yet the letter/motion was addressed to the attention of the CO, much as it would for a request for reconsideration. The BALCA panel in Gunnels ultimately determined that the CO abused its discretion and elevated form over substance in refusing to reconsider the denial. The panel noted specifically that:

Since a request for review must contain only legal argument and only such evidence that was within the record upon which the denial of labor certification was based,’ direct review by BALCA bars our consideration of this argument. Thus, it was an abuse of discretion for the CO to treat the Employer’s request as a request for BALCA review without first issuing a ruling on reconsideration because it denied the Employer the opportunity to be heard on its legal argument.

In the instant case, the Employer similarly merely neglected to check a box in M-1 but provided the preparer’s name and signature. Implicit in Employer’s response was the legal argument that the completion of the signature block of the preparer was sufficient and the box was not required to be checked. More significantly, its response to the initial denial was at the least an ambiguous request that the CO treated as a request for BALCA review, rather than CO reconsideration. Whether the CO abused his discretion in doing so depends on whether he denied the Employer the opportunity to be heard on its legal argument. We find the case falls within the holding in Gunnels and remand the case in order to provide the CO the opportunity to reconsider the issue.

ORDER

Based on the foregoing, we VACATE AND REMAND this matter for reconsideration by the CO.

For the Panel:

PATRICK 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 Employers often rely on HealthAmerica and assert that a typo on its application is harmless error and that it really did comply with the regulations. However, following the decision in HealthAmerica, the Employment and Training Administration (“ETA”) amended the regulations to prevent an employer from modifying its application. 20 C.F.R. § 656.11(b); 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) (“To the extent the BALCA favored allowing the employer in HealthAmerica to present evidence that effectively change the response to a question on the application, the BALCA’s approach is inconsistent with the Department’s objective and the NPRM proposal that applications cannot be changed or modified after submission.”). The regulatory history succinctly explains that ETA considered the costs associated with permitting employers the opportunity to modify their applications and determined that it would be a significant and costly resource drain on the PERM case management system and  staff. 72 Fed. Reg. at 27918.

Additionally, ETA rejected 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.” 72 Fed. Reg. at 27917.

3 The Employer also argued that the Claimant was previously represented by an organization which had been closed down by the New York state Attorney General for engaging in the unauthorized practice of law, and that the organization had provided shoddy work which had led to the deportation of many if its clients.

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