Matter of HSBC – Wall Street Journal is Not a Professional Journal

BALCA Says Wall Street Journal Is Not a Professional Journal. BALCA upheld the CO’s denial, finding that the Wall Street Journal, an authority on a wide variety of social, current event, and business topics, is a newspaper, not a professional journal for purposes of 20 CFR §656.17(e)(1)(i)(B)(4).

Issue Date: 18 April 2011
BALCA Case No.: 2010-PER-00655
ETA Case No.: A-08003-09591

In the Matter of: HSBC BANK U.S.A., N.A.,
Employer on behalf of MARIELA ANTEZANA, Alien.

Certifying Officer: William Carlson
Atlanta National Processing Center

Appearances: Ana Gonzalez, Esquire
Coral Gables, Florida
For the Employer

Gary Buff, Associate Solicitor
Vincent Costantino, Senior Trial Attorney
Office of the Solicitor
Division of Employment and Training Legal Services
Washington, DC
For the Certifying Officer

Before: Romero, Kennington, and Rosenow
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 January 14, 2008, the Certifying Officer (“CO”) accepted for filing the Employer’s Application for Permanent Employment Certification for the position of Personal Finance Advisor (AF 211).1 On February 28, 2008, the Certifying Officer issued an Audit Notification (AF 205) and the Employer’s representative shipped the information overnight to the CO on March 31, 2008 (AF 204). On February 23, 2010, the CO sent a denial determination (AF 39-40), stating that the newspaper the Employer used to advertise the job opportunity did not qualify as a professional journal and cannot be used to satisfy the mandatory print advertisement requirement. On March 18, 2010, the Employer’s representative wrote a letter to the Atlanta Processing Center requesting a review of the denial, stating that it fulfilled its obligation to advertise the job opportunity in a professional journal by placing the advertisement in The Wall Street Journal.

The CO forwarded the case to the Board of Alien Labor Certification Appeals (Board or “BALCA”) on April 23, 2010 and BALCA issued a Notice of Docketing on June 11, 2010. The Employer filed a Statement of Intent to Proceed on June 24, 2010 and an appellate brief on July 12, 2010. The CO filed its brief on July 28, 2010.

DISCUSSION

Under 20 C.F.R. § 656.17(e), most sponsoring employers are required to attest to having conducted recruitment prior to filing a PERM application. Among other requirements, applications involving both professional and non-professional occupations normally require the sponsoring employer to attest to having placed two print advertisements on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity. 20 C.F.R. § 656.17(e)(1)(i)(B) and 656.17(e)(2)(ii). An exception under 20 C.F.R. § 656.17(e)(1)(B)(4) states that if the job requires experience and an advanced degree, and a professional journal would normally be used to advertise the job opportunity. In that case, the employer may substitute a Sunday advertisement with an ad in the professional journal most likely to bring responses from able, willing, qualified, and available U.S. workers.

On brief, the Employer argues that The Wall Street Journal is a leading business journal that is respected and read on a regular basis by professionals in a specific field and serves the needs of financial and business professionals. The Employer further provides an affidavit from Professor Emeritus Richard W. Sapp of Portland State University opining as such. The Solicitor counters that The Wall Street Journal is a newspaper and does not qualify as a professional journal and adds that the Employer’s attempt to submit an affidavit in support of its position is untimely.

While it is without question that The Wall Street Journal is one of the most widely read business daily newspapers in the world, it remains nonetheless, a newspaper by its own definition. The fact that the publication presents itself as an authority on a wide variety of social, current event, and business-related topics precludes its consideration as a professional journal. Moreover, the Board’s scope of review is limited to the record made before the CO. 20 C.F.R. § 656.27(c); Eletheria Restaurant Corp. (d/b/a/Zodiac Café), 2008-PER-148 (Jan. 9, 2009); 5th Avenue Landscaping, Inc., 2008-PER-27 (Feb. 11, 2008). Therefore, the Board may not consider the affidavit from Professor Sapp, no matter how persuasive, because it is not in the record before the Board. See 20 C.F.R. §§ 656.26(a)(4)(i) (the request for review, statements, briefs, and other submissions of the parties must contain only legal argument and only such evidence that was within the record upon which the denial of labor certification was based) and 656.27(c) (“The Board must review a denial . . . on the basis of the record upon which the decision was made, the request for review, and any position statements or legal briefs of
the parties”). Therefore, denial of the certification is appropriate.

ORDER

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

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.