Matter of Ifuturistics – Request to Review from BALCA vs Reconsideration from CO

BALCA affirmed the CO’s finding that Computer magazine was not a professional journal. (unable to consider new evidence submitted by the employer with its request for review).

Issue Date: 21 April 2011
BALCA Case No.: 2010-PER-00631
ETA Case No.: A-09137-45476

In the Matter of:IFUTURISTICS, INC.,
Employer on behalf of VENKATA TADI, Alien.

Certifying Officer: William Carlson
Atlanta National Processing Center

Appearances: Kusuma Pandula, Esquire
Altamont, New York
For the Employer

Gary Buff, Associate Solicitor
Clarette H. Yen, 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 May 19, 2009, the Certifying Officer (“CO”) accepted for filing the Employer’s Application for Permanent Employment Certification for the position of Computer Systems Analyst (AF 17).1 On February 19, 2010, The CO sent a denial determination (AF 5-6) stating that the journal the Employer used to advertise the job opportunity was not a recognized journal on websites and does not qualify as a professional journal. On March 13, 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 per the mandatory required steps and that the magazine utilized, Computer, is a recognized professional journal. The Employer included six pages of information from the IEEE website, which describes Computer magazine as covering all aspects of computer science and that “for more than 40 years, developers, researchers, and managers have relied upon Computer for timely, peerreviewed information about research, trends, best practices, and changes in the profession” (AF 7).

The CO forwarded the case to the Board of Alien Labor Certification Appeals (Board or “BALCA”) on April 22, 2010 and BALCA issued a Notice of Docketing on February 17, 2010. The Employer filed a Statement of Intent to Proceed on June 16, 2010 along with a legal brief. 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 the application. Sponsoring employer are normally required 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 worker 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 CFR § 656.17(e)(1)(B)(4) provides that if the job requires experience and an advanced degree and a professional journal would normally be used to advertise the job opportunity, the employer may substitute for a Sunday advertisement an ad in the professional journal most likely to bring responses from able, willing, qualified, and available U.S. workers.

Employer argues that Computer magazine is a professional journal within the meaning of the regulation and that the word “journal” is not defined by the regulations. Solicitor responds that the CO’s denial should be affirmed based upon the reasons stated in the denial determination, specifically, that “research indicates that the journal listed in Section I(c)11 to advertise the job opportunity per the mandatory recruitment steps, Computer, is not recognized on journal websites and does not qualify as a professional journal.”

Thus the fundamental dispute in this case is whether Computer magazine is a qualifying professional journal. The burden is on Employer to establish that it is. Because the Employer requested a review before BALCA, rather than reconsideration from the CO, we are limited by 20 C.F.R. § 656.27(c) to an analysis based upon evidence upon which the CO’s denial was made. Consequently, the six pages of information related to the significance of the IEEE, as a preeminent technical society, which likely would have carried Employer’s burden, is not properly before us. We are therefore constrained procedurally to affirm the denial, despite the fact that the CO was arguably incorrect in his determination that Computer magazine is not a qualifying professional journal.

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.

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.
T M
T M
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

Read More Client Reviews