Matter of Techdemocracy – what a reconsideration request may include

BALCA upheld the CO’s denial, finding that evidence that existed at the time the application was filed, but was not submitted in response to the CO’s audit is barred from a reconsideration request by 20 CFR §656.24(g)(2)(i).

Issue Date: 16 November 2010
BALCA Case Nos.: 2009-PER-00459, 2011-PER-000581
ETA Case No.: A-07191-54944

In the Matter of TECHDEMOCRACY LLC,
Employer,on behalf of RAMA SUBBA REDDY OBILI, Alien.

Certifying Officer: William Carlson
Atlanta Processing Center

Appearances: Patricia M. Rondon, Esquire
The Chugh Firm
Iselin, New Jersey
For the Employer

Gary M. Buff, Associate Solicitor
Frank P. Buckley, Attorney
Office of the Solicitor
Division of Employment and Training Legal Services
Washington, DC
For the Certifying Officer

Before: Colwell, Johnson and Rae
Administrative Law Judges

DECISION AND ORDER AFFIRMING DENIAL OF LABOR CERTIFICATION

PER CURIAM. This matter involves an appeal of the denial of permanent alien labor certification 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 20 C.F.R. Part 656.

BACKGROUND

On July 26, 2007, The Certifying Officer (“CO”) accepted for filing Employer’s Application for Permanent Employment Certification, ETA Form 9089, filed on behalf of Alien for the position Computer Software Engineer in Edison, New Jersey. (AF 131-149).2 The prevailing wage determination (“PWD”) that Employer utilized for the position was $50.88 per hour. (AF 132). Employer also indicated on its application that the position offered was a professional occupation and that one of the additional recruitment steps it conducted was posting the position on a job search web site from February 4, 2007 to February 21, 2007. (AF 134-35).

On September 19, 2007, the Certifying Officer (“CO”) issued an Audit Notification letter requesting, among other items, recruitment documentation. (AF 126). Employer responded to the request by submitting documentation supporting its application on October 18, 2007. (AF 18-125). Employer submitted a cover letter indicating that the documentation submitted in support of the posting on the job search web site consisted of an advertisement placed on www.monster.com (“Monster ad”) for 17 days beginning February 4, 2007 and ending on February 21, 2007. (AF 19).3 The copies of the ad submitted on this site listed a salary/wage of “50.00 – 70.00 USD / year [sic].” (AF 113-122).

On November 13, 2007, the CO denied certification because the wage rate contained in the Monster ad was lower than the PWD listed on Employer’s application for labor certification. The CO cited 20 C.F.R. § 656.17(f)(5), the regulatory provision governing the content of advertisements placed in newspapers of general circulation or professional journals, as authority for the denial.

Employer requested reconsideration of the denial on December 12, 2007, arguing that the Monster ad submitted in its audit response was erroneously submitted, and that it meant to submit an advertisement it placed on NJ.com instead. (AF 8-11). Employer attached the NJ.com ad, which accurately described the position detailed in the ETA 9089 but did not list the offered wage. (AF 12). The NJ.com ad was posted online from February 3, 2007 to March 13, 2007. Id. Employer argued that under our en banc decision in HealthAmerica, 2006-PER-1 (July 18, 2006) (en banc), the CO was required to consider the NJ.com ad because the ad qualified as documentation retained in support of its application and it was demonstrably in existence at the time of the application. (AF 10).

The CO denied the application on reconsideration on August 20, 2009 because the prevailing wage listed in the Monster ad was lower than the PWD used on Employer’s application for labor certification. (AF 1-2). The CO also noted that under 20 C.F.R. § 656.24(g), “a request for review4 [sic] may include only documentation received by the employer in response to a request from the Certifying Officer or documentation the employer did not have an opportunity to present to the Certifying Officer, but existed at the time the application was filed.” (AF 2). Therefore, the CO reasoned he could not consider Employer’s NJ.com ad. Id.

The case was forwarded to BALCA and we issued a Notice of Docketing on September 10, 2009. Employer filed an appellate brief on October 22, 2009. The CO filed an appellate brief on October 22, 2009.

The CO argues that Employer’s submission of the Monster ad as documentation of its additional recruitment evidenced a substantive violation of 20 C.F.R. § 656.10(c), which requires Employer to certify that the offered wage listed in its application for labor certification equals or exceeds the prevailing wage determined pursuant to §§ 656.40 and 656.41. The CO further asserts that denial is proper because it was not required to accept the NJ.com ad as “new evidence” on reconsideration. See Brief of the CO at 1-2.

Employer concedes in its brief that “the Monster.com ads do not contain the correct salary range.” Brief of Employer at 2. Instead, Employer argues that its failure to submit the NJ.com ad in connection with the Audit Notification request was harmless error that should be excused so that it may substitute the NJ.com ad for the Monster ad as supporting documentation for its labor certification application. Id. at 3-4. Employer cites to HealthAmerica and our panel decision in Pa’Lante LLC, 2008-PER-209 (May 7, 2009) for the proposition that documentation supporting a labor application in existence at the time of filing that establish an employer is in actual compliance with the regulations should be considered. Id.

DISCUSSION

The relevant portion of the regulation at Section 656.24(g)(2) currently reads:

For applications submitted after July 16, 2007, a request for reconsideration may include only:

(i) Documentation that the Department actually received from the employer in response to a request from the Certifying Officer to the employer; or

(ii) Documentation that the employer did not have an opportunity to present previously to the Certifying Officer, but that existed at the time the Application for Permanent Labor Certification was filed, and was maintained by the employer to support the application for permanent labor certification in compliance with the requirements of § 656.10(f).

This provision is a 2007 amendment to the regulations contained in the Final Rule, Labor Certification for the Permanent Employment of Aliens in the United States; Reducing the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity, 72 Fed. Reg. 27904 (May 17, 2007). The regulatory history clarifies that Section 656.24(g) was amended in order to aid in implementing the newly enacted “no modification” provision found at Section 656.11(b), which provides that once an employer submits an ETA Form 9089, it may not amend the content attested to in the application. See 20 C.F.R. § 656.11; 72 Fed.Reg. at 27916.

Here, the amended version of Section 656.24(g) applies because the application was filed on July 26, 2007, ten days after the regulation became effective. The NJ.com ad was not received pursuant to a request by the CO, and it was documentation that Employer had the opportunity to present to the CO in connection with its response to the Audit Notification request for documentation.

Neither HealthAmerica nor Pa’Lante,5 dictates the result in this case. Rather, the NJ.com ad is the precise type of evidence barred by the newly enacted reconsideration rule at Section 656.24(g). See Denzil Gunnels, 2010-PER-628 (Nov. 16, 2010) (reviewing the regulatory history of the amended rule on reconsideration). Employer may not seek to substitute the NJ.com ad for its prior documentation because, while the ad was supporting documentation that allegedly existed at the time the application was filed, it was fairly covered by, and yet not submitted in response to, the CO’s audit notification. This evidence is barred by application of Section 656.24(g)(2)(i), and we cannot consider the NJ.com advertisement.

Because the Employer has conceded that its Monster ad did not contain the correct salary range for the job, we affirm the CO’s denial of labor certification.

ORDER

IT IS ORDERED that the Certifying Officer’s denial of Employer’s application for labor certification in the above-captioned matter is AFFIRMED.

Entered at the direction of the panel by:

Todd R. Smyth
Secretary to the Board of
Alien Labor Certification Appeals

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 The Board has received two Appeal Files in this matter. Upon careful review, we have determined that the second Appeal File is an exact duplicate. Therefore, we have consolidated the cases. 29 C.F.R. § 18.11.

2 “AF” is an abbreviation for Appeal File.

3 Employer documented this step by submitting five print-outs of the ad that was posted on the site. On the copies in the Appeal File, all but one of the dates that the ads were posted have been cut off from the bottom of the page. The legible date on one of the postings is February 4, 2007.

4 The regulation actually refers to a “request for reconsideration,” not “review.” 20 C.F.R. § 656.24 (2008).

5 HealthAmerica was decided under an earlier version of Section 656.24(g). Moreover, assuming arguendo that we could consider the NJ.com ad, the HealthAmerica decision does not mandate a grant of certification. In HealthAmerica the employer was able to show that it made a typographical error on the Form 9089. Here, the dates of the Monster ad matched the dates provided by Employer on the Form 9089, whereas the later supplied NJ.com ad did not. Thus, Employer is not using the NJ.com ad to show a typo on the Form 9089 but in attempt to modify its application. See also 20 C.F.R. § 656.11(b) (2007) (“Requests for modifications to an application will not be accepted for applications submitted after July 16, 2007.”).

Pa’Lante is likewise inapplicable because it turned on the sufficiency of documentation that the employer actually had submitted in response to the CO’s Audit Notification request.

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