Matter of Washington Hospital Center – mere oversight or inability or refusal to produce audit documentation

BALCA found that the CO abused his discretion in refusing to consider whether the absence of a prevailing wage addendum was mere oversight as opposed to an inability or refusal to produce the document.

Issue Date: 13 May 2011
BALCA Case No.: 2010-PER-00720
ETA Case No.: A-07298-89355

In the Matter of: WASHINGTON HOSPITAL CENTER,
Employer on behalf of CAMESIA MATTHEWS, Alien.

Certifying Officer: William Carlson
Atlanta National Processing Center

Appearances: Denise C. Hammond, Esquire
Hammond Immigration Law, PC
Rockville, Maryland
For the Employer

Gary M. Buff, Associate Solicitor
Jonathan R. Hammer, Attorney
Office of the Solicitor
Division of Employment and Training Legal Services
Washington, DC
For the Certifying Officer

Before: Krantz, Sarno, Malamphy
Administrative Law Judges

DECISION AND ORDER VACATING 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 October 25, 2007, the Certifying Officer (“CO”) accepted for filing the Employer’s Application for Permanent Employment Certification for the position of “Senior Medical Technologist” (AF 96-108).1 On December 28, 2007, the CO sent Employer an Audit Notification Letter requesting that Employer provide certain information in accordance with 20 C.F.R. §656.20. (AF 92-95) Employer responded on January 25, 2008. (AF 30-91)

On September 10, 2009, the CO denied the application the ground that the Audit Notification letter requested a copy of the Prevailing Wage Determination (PWD) from the State Workforce Agency (SWA), and, if not included in the PWD, a copy of the request for the determination as originally submitted to the SWA. Employer failed to provide the addendum submitted to the SWA detailing the duties of the job opportunity. Under 20 CFR §656.20(b) this was a substantial failure to provide required documentation. (AF 28-29)

Employer requested reconsideration on October 8, 2009, stating that its Audit Response included the PWD provided by the DC Department of Employment Services (DOES), which in the job “Duties” field said “See addendum.” (AF 72) However, it then inadvertently omitted the addendum from the audit reply. Employer submitted the omitted addendum (AF 18) with its motion, along with a hand-written notation from the SWA officer (AF 23) verifying that it corresponds to the PWD in question. (AF 7-27).

The CO affirmed denial on May 6, 2010, asserting that Employer failed to overcome the deficiency and that, under §656.24(g)(2), a request for reconsideration may only include documentation received from Employer in response to a request from the CO or documentation that existed at the time the application was filed but Employer did not have the opportunity to present it to the CO. (AF 1)

BALCA issued a Notice of Docketing on June 17, 2010. Employer filed a Statement of Intent to Proceed on June 25, 2010 and submitted a brief on December 14, 2010. In the brief, Employer argued that the CO’s denial of the application under §656.24(g)(2) was improper, because Employer did not seek to modify its Form 9089 or its application, but rather to establish on reconsideration its good faith compliance with regulatory recruitment requirements. Employer argued that the ETA “has acknowledged its own ‘ability to waive the letter-perfect requirement for applicants who successfully show, on reconsideration, that the application represented a recruitment effort that actually complied with the regulations.’” Denzil Gunnels, 2010-PER-00628 (Nov. 15, 2010). Employer asserted that the CO deprived it of the due process right to demonstrate its de facto compliance with PERM recruitment requirements by denying based on the no-modification rule and because Employer received no notice of the deficiency until after the application was denied, almost two years after applying, when re-filing was impossible and, “under the CO’s interpretation, [when Employer] could no longer cure the deficiency.”

Employer compared its facts to Luigi’s Restaurant, 2009-PER-00357 (Aug. 31, 2009) a case in which BALCA vacated denial and considered the submission of inadvertently omitted documentation with a request for reconsideration. The CO did not file a Statement of Position.

DISCUSSION

The regulation at 20 C.F.R. § 656.20(b) provides that an application may be denied if there is a substantial failure by the employer to provide required documentation after an Audit Notification. The section is intended to force an employer to provide all of the requested documentation in a timely fashion, and reflects the design of the PERM regulations to be an exacting process, unforgiving of mistakes or misunderstandings about the regulatory requirements. See Richard M. Robinson, 2007-PER-84 (Oct. 15, 2007); Geoffrey Allen Corp., 2008-PER-234 (May 7, 2009); Kay Mays, 2008-PER-11 (Aug. 27, 2008) (“The PERM regulations very purposefully were designed to eliminate back-and-forth 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.”).

In the instant case, as in Luigi’s Restaurant, the Employer timely responded to the Audit Notification, but while materials within the response reference the job duties addendum to the PWD, the actual addendum is not within the record. In Luigi’s
Restaurant, BALCA described the case in a paragraph that could be referring to the facts of the instant case, if the word “addendum” were substituted for “Notice of Filing:”

It appears probable that the absence of the Notice of Filing was an oversight in compiling the audit package. The fact that the Employer’s certification of the Notice of Filing references the “attached” Notice of Filing, that the Employer was able to produce a copy of the actual Notice of Filing shortly after receiving the denial letter, and that the Notice is not an obvious fabrication, all support the conclusion that the Employer in fact had  documentation of its Notice of Filing, but appears to have inadvertently failed to include it in the audit response mailed to the CO. We note that the audit response appears to have been otherwise thorough.

Id. at 4. In the instant case, the Employer states the addendum was inadvertently left out of the response package before it was sent. The PWD references and instructs the CO to “[s]ee [the] addendum.” After receiving the denial of certification letter, the Employer responded with a copy of the addendum within weeks. On its face, the addendum does not appear fraudulent, and in fact is accompanied by a hand-written confirmation by the SWA Officer that it corresponds to his determination. The audit response in the instant case is otherwise thorough.

The CO argued in his affirmation of denial that the Employer in fact did not submit the addendum until after certification had been denied. Therefore, he argued it cannot be considered by BALCA pursuant to the limitations of 20 C.F.R. § 656.24(g)(2).

However, the CO had the option of reconsidering the case prior to send it to BALCA for review and did in fact do so in his letter of May 6, 2010. In Luigi’s Restaurant BALCA rejected the CO’s refusal to consider the submission of the inadvertently omitted documentation with the request for reconsideration. “The documentation attached to the motion was considered by the CO on reconsideration. Accordingly, it was in the record made before the CO and is properly considered by the Board on review.” Id. at 5. Accordingly, the addendum was in the record before the CO and is properly considered by BALCA on review.

As the BALCA panel determined in Luigi’s Restaurant, we find that in these precise circumstances where the addendum was clearly intended to be included in the audit response, and in fact could have been if not for a clerical loss upon sending, upholding the denial of certification is not warranted. In Luigi’s Restaurant, the panel concluded that

The CO abused his discretion in refusing to consider whether the absence of the Notice of Filing in the audit response was a mere oversight as opposed to an inability to produce the documentation, a refusal to produce the documentation, or significant negligence on the part of the Employer or its representative. We find that the preponderance of the evidence is that the audit response’s failure to include the Notice of Filing was inadvertent rather than purposeful or negligent to the degree that reconsideration would not be warranted.

Id. We likewise find that in this case the CO abused his discretion in refusing to consider whether the absence of the addendum was a mere oversight as opposed to an inability or refusal to produce the documentation. We find that the preponderance of the evidence supports a finding that the audit response’s failure to include the addendum was inadvertent rather than purposeful or significantly negligent to the degree that reconsideration would not be warranted.

Therefore in the interest of fundamental fairness we vacate the denial of certification and return this application to the CO to consider whether the addendum and other audit response documentation complied with the regulations, and whether certification should be granted. This decision should not be construed as support for requiring the CO to reconsider merely if an employer forgot to submit requested documentation, in which case 20 C.F.R. § 656.20(b) supports denial.

ORDER

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

For the Panel:

KENNETH A. KRANTZ
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.

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