Urban vs Rural Newspaper – Matter of MICHIGAN TECHNOLOGICAL UNIVERSITY

Background:

An employer located in Houghton, MI, advertised a PERM position in the Green Bay Press Gazette (“urban newspaper”) because the local Houghton Daily Mining Gazette (“rural newspaper”) does not have a Sunday paper and that Green Bay is the nearest metropolitan area.

The Certifying Officer (CO) denied the application because the urban newspaper “is not a newspaper of general circulation in the area of intended employment most likely to bring responses from available U.S. workers”.

Discussion:

When “the job opportunity is located in a rural area of intended employment that does not have a newspaper with a Sunday edition, the employer may use the edition with the widest circulation in the area of intended employment.” § 656.17(e)(i)(B)(2).

The current regulations require advertisements focus on the area of intended employment. The area of intended employment is the only relevant term defined by the regulation, and it means “the area within normal commuting distance of the place (address) of intended employment.”

When an employer is advertising in an urban or suburban area, some consideration must be given to which newspaper is the “most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers.” However, when the employer is in a rural area, and no Sunday edition is available, the primary focus is on which “edition [has] the widest circulation in the area of intended employment

Therefore, an urban newspaper with a Sunday edition may still be the appropriate newspaper to advertise in, but only if the employer can show that it is more widely circulated in the area of intended employment than the local newspaper.

Conclusion:

When advertising in an urban newspaper because the rural newspaper does not have a Sunday edition, an employer must demonstrate that the urban newspaper was more widely circulated in the area of intended employment and not merely show what the general circulation of both newspapers and the populations of both areas are.

U.S. Department of Labor Board of Alien Labor Certification Appeals

800 K Street, NW, Suite 400-N

Washington, DC 20001-8002

(202) 693-7300

(202) 693-7365 (FAX)

Issue Date: 21 May 2012

BALCA Case No.: 2011-PER-00790

ETA Case No.: A-08176-64086

In the Matter of:

MICHIGAN TECHNOLOGICAL UNIVERSITY,

Employer,

on behalf of

CHUNMING GAO,

Alien.

Certifying Officer: William Carlson

Atlanta Processing Center

Appearances: Linda J. Armstrong, Esq.

Butzel Long

Detroit, MI

For the Employer

Gary M. Buff, Associate Solicitor

Stephen Jones, Attorney

Office of the Solicitor

Division of Employment and Training Legal Services

Washington, DC

For the Certifying Officer

Before: McGrath, Geraghty, Calianos

Administrative Law Judges

TIMOTHY J. MCGRATH

Administrative Law Judge

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 governing alien labor certification found at Title 20, Part 656 of the Code of Federal Regulations (“C.F.R.”).

BACKGROUND

On July 22, 2008, the Certifying Officer (“CO”) accepted for filing the Michigan Technological University’s (“Employer”) Application for Permanent Employment Certification for the position of “Lecturer.” (AF 1.) The application was not audited. Rather, on March 16, 2009, the CO denied the application because the newspaper used by the Employer “is not a newspaper of general circulation in the area of intended employment most likely to bring responses from available U.S. workers” and therefore failed to comply with 20 C.F.R. § 656.17(e)(1)(i)(B)(1). (AF 150.) The Employer is located in Houghton, MI, and it advertised in the Green Bay Press Gazette. (AF 151, 154.)

On April 14, 2009, the Employer requested the CO reconsider, arguing that the local Houghton Daily Mining Gazette does not have a Sunday paper and that Green Bay is the nearest metropolitan area. (AF 2-148.) With its request for reconsideration, the Employer included demographic information about Houghton, MI and Green Bay, WI and circulation data on both newspapers. (AF 87-103.) It further included copies of two other PERM applications that had been certified by the CO using the Green Bay Press Gazette for its required newspaper advertisements. (AF 113-47.) The CO forwarded the case to BALCA on March 14, 2011, noting that the “Green Bay Press Gazette is headquartered in Green Bay, Wisconsin at a location in excess of 200 miles from the job location in Houghton, Michigan. . . . [It is] not derived from the same city, county, state, Metropolitan Statistical Area and/or commuting distance as the area of intended employment . . . .” (AF 1.)

The Board issued a Notice of Docketing on April 28, 2011, which allowed the Employer and the CO forty-five days to file briefs in support of their positions. The Employer filed a Statement of Intent to Proceed on May 11, 2011, and Brief in Support of Appeal on June 10, 2011. On June 23, 2011, the CO faxed a letter brief that acknowledged the due date for submissions had been June 17th, and requested leave to file out of time due to a large volume of work. On July 21, 2011, the Employer filed a response to the CO’s letter brief objecting to its timeliness and the Employer again stated its legal position and arguments. The CO’s letter was both untimely and faxed without permission, and was not considered in the resolution of this matter. Even if the CO’s letter brief was considered, it would not change the result herein. On March 21, 2012, the Employer certified via e-mail that the job identified in the PERM application was still open and available and that the alien identified in the PERM application was ready, willing and able to fill the position.

DISCUSSION

The Employer filed the application for this position under section 656.17, which requires specific, mandatory pre-filing recruitment steps be taken. 20 C.F.R. § 656.17(e) (2011). One of the mandatory recruitment steps is that an employer advertise by “[p]lacing an advertisement 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 and most likely to bring responses from able, willing, qualified, and available U.S. workers.” § 656.17(e)(i)(B)(1). However, when “the job opportunity is located in a rural area of intended employment that does not have a newspaper with a Sunday edition, the employer may use the edition with the widest circulation in the area of intended employment.” § 656.17(e)(i)(B)(2). The “area of intended employment” is the only relevant term defined by the regulation, and it means “the area within normal commuting distance of the place (address) of intended employment.” § 656.3. The definition acknowledges that “there may be widely varying factual circumstances among different areas” that make up what a normal commuting distance is, but otherwise only discusses commuting within “Metropolitan Statistical Areas.” Id.

The Employer cites additional guidance on the Employment and Training Administration (“ETA”) PERM Frequently Asked Questions (“FAQ”) website. (See Ex. 3.) There, the ETA states that “[m]ost employers, based on their normal recruiting efforts, will be able to readily identify those newspapers . . . that are most likely to bring responses from able, willing, qualified, and available U.S. workers.” (Ex. 3.) The FAQ also makes clear that the employer bears the burden of showing “that the newspaper . . . chosen is the most appropriate to the occupation and the workers likely to apply for the job opportunity.” (Id.) In the case of rural employers, the FAQ notes that “where there is no newspaper with a Sunday edition and the employer chooses to use the edition having the widest circulation, the employer must be able to document the edition chosen does, in fact, have the widest circulation.” (Id.)

The Employer argues that because the Houghton Daily Mining Gazette has “no Sunday edition and limited geographical distribution” (Pet. Br. at 5), the “Green Bay Press Gazette is the newspaper of general circulation in the area of intended employment most appropriate for the occupation of Lecturer and the one that is most likely to bring responses from able, willing, qualified, and available U.S. workers interested in the job opportunity.” (Pet. Br. at 6.) To support its case, the Employer attached circulation data from the two newspapers. The Green Bay Press Gazette has a daily circulation of 56,000 and a Sunday circulation of 86,000. (See Ex. 4.) The Houghton Daily Mining Gazette has a daily circulation of 10,500, and it does not have a Sunday edition. (Id.) The respective populations of Houghton, MI and Green Bay, WI are estimated at 7,134 and 100,353. (Id.) The Employer also notes that the CO has granted three of its other labor certifications that advertised in the Green Bay Press Gazette (see Pet. Br. at 9; Ex. 7), and cites Hillel Hebrew Academy, 90-INA-572, 1992 WL 60614 (Mar. 4, 1992), wherein the CO denied certification because an Employer used a publication with circulation of 65,000, instead of 1,199,952 (Pet. Br. at 7).

We uphold the CO’s denial, and find that the Employer has misinterpreted the current regulation and failed to adduce the appropriate evidence to support its case. The Employer relies solely upon pre-PERM case-law, arguing that “where the employer makes a prima facie case as to publishing . . . the Certifying Officer has the burden to explain why the publication he recommended would be a more appropriate publication in which to advertise. (Pet. Br. at 8 (citing Florida Ordinance, Inc., 89-INA-106 (Feb. 14, 1990); Pater Noster H.S., 88-INA-131 (Oct. 17, 1988); Alpine Electronics of America, Inc., 88-INA-107 (Mar. 14, 1989)).) In those cases, the relevant regulation did not mention “the area of intended employment,” but rather required an employer to “place an advertisement for the job opportunity in a newspaper of general circulation or in a professional, trade, or ethnic publication, whichever is appropriate to the occupation and most likely to bring responses from able, willing, qualified, and available U.S. workers.”4 20 C.F.R. § 656.21(g) (1997). Id.

The current regulations, however, require advertisements focus on the area of intended employment. When an employer is advertising in an urban or suburban area, some consideration must be given to which newspaper is the “most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers.” §656.17(e)(i)(B)(1). However, when the employer is in a rural area, and no Sunday edition is available, the primary focus is on which “edition [has] the widest circulation in the area of intended employment.” § 656.17(e)(i)(B)(2). Therefore, an urban newspaper with a Sunday edition may still be the appropriate newspaper to advertise in, but only if the employer can show that it is more widely circulated in the area of intended employment than the local newspaper.

The only evidence provided by the Employer was regarding the general circulation of both newspapers and the populations of both areas. (See Ex. 4.) These facts do not help to establish that the Green Bay Press Gazette was more widely circulated in the area of Houghton, MI than the Daily Mining Gazette. Therefore, the evidence in the record does not support the Employer’s contention that it advertised in “the newspaper of general circulation in the area of intended employment most appropriate for the occupation of Lecturer and the one that is most likely to bring responses from able, willing, qualified, and available U.S. workers interested in the job opportunity.” (Pet. Br. at 6.)

The Employer also objected to the process by which this labor certification was denied. It notes that it has had certifications granted in three previous cases where it advertised in the Green Bay Press Gazette, and stresses that “the Certifying Officer never issued a Notice of Finding to request additional information about the publication, which would have allowed the Employer to submit its rebuttal as to why the Green Bay Press Gazette is the appropriate newspaper for the mandatory Sunday advertisement.”6 (Pet. Br. at 8.)

Notices of Finding were eliminated by the PERM regulations in favor of less interactive audits. See Implementation of New System, 69 Fed. Reg. at 77358. The PERM system was generally intended to streamline the application process and allow the CO to grant or deny an application based solely upon the application. See 69 Fed. Reg. at 77327. Though the audit process replaces Notices of Findings, it was not designed to create discourse between the ETA and employers, but rather to ensure that the attestations provided by an employer were accurate. See id. at 77328; see generally 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 (May 17, 2007).

As part of the streamlining, the new regulations limit BALCA’s scope of review to the record upon which the CO’s decision was made, and an employer may not supplement the record on appeal. 20 C.F.R. § 656.27(c). This does not mean that an employer is unable to provide an explanation for an action that the CO found impermissible. Where the CO denies an application, without an audit, an employer is permitted to introduce additional evidence where he requests reconsideration by the CO of the application denial. See Denzil Gunnels d/b/a Gunnels Arabians, 2010-PER-628, slip op. at 14 (Nov. 16, 2010) (holding new evidence is only permissible where employer requested reconsideration, rather than direct review by BALCA). The Employer did so here. However, as discussed above, the evidence the Employer supplemented the record with did not establish that it advertised in the appropriate newspaper.

ORDER

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

For the Panel:

A

TIMOTHY J. MCGRATH

Administrative Law Judge

Boston, MA

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

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