Tag Archive for: Labor Certification and BALCA

Cora-Ann Pestaina

Say What? Did BALCA Just Say That Healthamerica Has Been Overruled?

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I hang onto every word of the Board of Alien Labor Certification Appeals (BALCA). It’s the only way to make it through the preparation and filing of labor certification applications under Program Electronic Review Management (PERM) as not knowing what BALCA has said on a particular issue could be fatal to any PERM.  This recent statement by BALCA stopped me in my tracks for a moment.

In Matter of Sushi Shogun, 2011-PER-02677 (May 28, 2013), BALCA said, “HealthAmerica has effectively been overruled by the promulgation of 20 C.F.R §656.11(b).” Practitioners who file numerous PERM applications can empathize with my initial panicked gasp at seeing “HealthAmerica” and “overruled” in the same sentence.

As a background, over six years ago, BALCA issued HealthAmerica, 2006-PER-0001 (BALCA July 18, 2006). In this important en banc decision, BALCA held that the Certifying Officer (“CO”) should have reconsidered the denial of a PERM application where documentation held by the employer pursuant to the recordkeeping requirements of PERM conclusively established that the apparent violation was an unintentional typographical error on the ETA Form 9089. The Form 9089 contained an erroneous date indicating that the employer had placed a Monday ad instead of the required Sunday placement, when in fact the employer had acted to place the ad on Sunday and had the newspaper tear sheets of the advertisement to prove it. BALCA rejected the CO’s position that no new evidence could be submitted as the advertisement tear sheets were part of the PERM compliance recordkeeping requirement and thus was constructively submitted by the employer.

Since then, HealthAmerica has saved many PERM applications from certain doom and many employers from the Department of Labor’s (DOL) hyper-technical claws. BALCA even broadened HealthAmerica beyond typographical errors. In Matter of Pa’Lante, 2008 PER 00209 (May 7, 2009), the employer filed the ETA Form 9089 neglecting to list the alien’s experience gained before joining the employer and upon which he qualified for the offered position. But the alien’s substantial prior experience had been introduced in the employer’s response to the DOL’s audit notification through a September 2000 report of an Educational Consultant, who reviewed the alien’s education and experience credentials. The report clearly established that the alien had the requisite qualifications for the job well before he started work for the employer. BALCA reasoned that since the employer was able to introduce detailed evidence in its audit response and motion for reconsideration that was not fabricated or prepared after the filing, it would forgive the omission of experience and applied HealthAmerica.

After all this, does BALCA’s statement in Matter of Sushi Shogun now mean that employers can no longer cite HealthAmerica? In Matter of Sushi Shogun, the employer filed a PERM labor certification for the position of “Cook Assistant, Japanese Cuisine.” The application was audited and then denied because the ETA Form 9089 listed the prevailing wage as $10.04 per hour when the prevailing wage determination listed the prevailing wage as $10.14 per hour. The employer argued that this was a minor typographical error and a clerical mistake of minor importance; that the Notice of Filing listed the correct wage; that the offered wage was not listed in any advertisements or on the posting with the State Workforce Agency (SWA); and that no potential job applicant could possibly have been misled by the error. BALCA acknowledged that the error was likely just a result of someone mistyping the wage on the ETA Form 9089 and to deny the application essentially elevated form over substance (HealthAmerica at 19), but held that its hands were tied since the case was being considered after the promulgation of 20 C.F.R §656.11(b) which states that requests for modifications to an application will not be accepted for applications submitted after July 16, 2007. BALCA even went on to “reject the approach of the majority” in another case, Jesus Covenant Church, 2008-PER-200 (Sept. 14, 2009), in which case the employer listed a wage in the SWA job order that was the same as the prevailing wage determination, but 28 cents less than the wage offered to the alien.  The majority found that this was a harmless typographical error that did not lead to a conclusion that the job was not clearly open to any U.S. worker. In Matter of Sushi Shogun BALCA stated that it is “reluctant to second-guess the Secretary’s policy determination requiring applications filed after July 16, 2007, to be error-free.”

BALCA is taking a more firm stand in Matter of Sushi Shogun. But its holding can be limited to only preclude the use of HealthAmerica in situations involving a modification on the ETA Form 9089. This means that the employer in HealthAmerica and even in Pa’Lante whose harmless errors would essentially require a modification of the ETA Form 9089 would probably not be as successful in their appeals now. But HealthAmerica is still good law and can still be cited in cases where the denial of a PERM application is not consistent with notions of fundamental fairness and procedural due process; where the substantive integrity of the process was preserved; the test of the availability of US workers was valid; the Employer’s good faith is evident; the error is harmless; and does not require a modification of the ETA Form 9089.

HealthAmerica lives on by way of cases like Denzil Gunnels, 2010-PER-00628 (BALCA Nov. 16, 2010) and Federal Insurance Co., 2008-PER-00037 (Feb. 20, 2009). Under Denzil Gunnels (which Cyrus Mehta has blogged about here) if a PERM application is denied without an audit and the employer submits supplemental evidence that could be considered as part of the record under HealthAmerica, the CO should treat it as a request for reconsideration rather than a request for review. But, even in cases where the circumstances of a generic audit may not have been specific enough to put the employer on notice regarding a specific deficiency, the request for review should be treated as a request for reconsideration so that the employer has a fair opportunity to present supplemental evidence to the CO. For example, if the employer’s labor certification was denied because the DOL determined that a particular newspaper was not adequate, an employer could argue that the generic audit did not provide adequate notice of the deficiency and thus find its way around a strict application of the prohibition to present supplementary evidence that would otherwise be barred under 20 C.F.R. §656.24(g)(2)(ii). HealthAmerica via Denzil Gunnels can be influential in such a case which does not involve a modification of the ETA Form 9089.

In Federal Insurance Co., 2008-PER-00037 (Feb. 20, 2009), the fact that certain mandatory language pertaining to an alternative requirement under Matter of Francis Kellogg, 1994-INA-465 (Feb. 2, 1998) (en banc), did not appear on the ETA Form 9089 was not fatal as there is no space on the Form for such language. BALCA held that a denial in that instance would offend fundamental fairness and due process. A case with a similar type of issue, not involving a modification of the ETA Form 9089 can still be approved today despite BALCA’s grand statement in Matter of Sushi Shogun.

HealthAmerica is still alive and is still important to the preservation of the integrity of the PERM process in cases where there has been no demonstration of bad faith or after the fact fabrication and a modification of the ETA Form 9089 is not required.

Cyrus Mehta

BALCA’S NEW DECISION IN DENZIL GUNNELS OPENS THE DOOR TO SUBMIT MORE EVIDENCE FOLLOWING A LABOR CERTIFICATION DENIAL

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By Cyrus D. Mehta

The Board of Alien Labor Certification Appeals (BALCA) has been extremely active recently issuing several important decisions. Since the PERM labor certification process is so exacting and unforgiving, there is very little opportunity for an employer to correct the record in the event of a mistake, or to supplement the record if the Department of Labor (DOL) objects to some aspect of the PERM application and issues a denial. BALCA recently issued an important decision, Denzil Gunnels, 2010-PER-00628 (BALCA Nov. 16, 2010), that may provide more opportunities for the employer to provide supplemental evidence following a denial. Indeed, BALCA has made itself relevant again by cutting down on processing times and issuing more decisions. This post is based on a larger article analyzing selected BALCA decisions that will be part of the 13th Annual AILA New York Chapter Immigration Law Symposium on December 1, 2010

As a background, over three years ago BALCA issued HealthAmerica, 2006-PER-0001 (BALCA July 18, 2006), a seminal decision, which rejected the certifying officer’s (CO) denial of the labor certification based on a typographical error recording a Sunday advertisement on the form, although the employer possessed actual tear sheets of the advertisement. BALCA rejected the CO’s position that no new evidence could be submitted as the advertisement tear sheets were part of the PERM compliance recordkeeping requirement and thus was constructively submitted by the employer.

However, not every mistake can be overcome by invoking HealthAmerica, especially mistakes that are clearly in violation of the regulations. It should also be noted that the beneficial impact of HealthAmerica has been somewhat negated by 20 CFR §656.24(g)(2)(ii), which limits documents accompanying a motion for reconsideration to “[d]ocumentation 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).” Still, we see BALCA continuing to rule in favor of applicants who have made errors based on fundamental fairness and in recognition of the fact that the PERM process is an exacting an unforgiving one. Indeed, even in Federal Insurance Co., 2008-PER-00037 (BALCA Feb. 20, 2009), which involved a failure to state the magic language that an employer will accept any suitable combination of experience, training or education on the form, BALCA’s decision was grounded in the fundamental fairness doctrine enunciated in HealthAmerica, especially since there was no place on the ETA-9089 that signaled to an employer to insert this language. However, as noted below, the trend is for BALCA to be far less forgiving and to apply HealthAmerica very narrowly.

BALCA’s most recent decision, Denzil Gunnels, 2010-PER-00628 (BALCA Nov. 16, 2010) sets forth standards under which the CO must consider an appeal as a request to reconsider rather than treat is as a request for review. 20 CFR 656.24(g)(4) provides that “[t]he Certifying Officer, may, in his or her discretion, reconsider the determination or treat it as a request for review.” In Denzil Gunnels BALCA found that the CO abused his discretion by failing to consider the employer’s request as a motion, and instead, treating it as a request for review. Even though the employer filed a “Request for Review of Denial of Form ETA 9089,” it was attempting to submit supplementary evidence, a corrected ETA 9089, after the originally filed ETA 9089 failed to state “yes” or “no” in Section M1. The employer was thus attempting to request a motion for reconsideration, even though it did not say so clearly, and BALCA admonished the DOL indicating that its FAQs did not make clear that if the employer omits the magic word “reconsideration,” it will result in the request being placed in the BALCA queue. Note that if the CO sends the file to BALCA, an employer is unable to correct or supplement the record under HealthAmerica as BALCA is unable to consider new evidence.

BALCA in Denzil Gunnels concluded by setting forth circumstances under which the CO may exercise his discretion properly and the circumstances under which it will be found to be an abuse of discretion:

Step 1. Where an employer unambiguously requests BALCA review, the employer has made a tactical decision to appeal to BALCA and can no longer supplement the record. BALCA, however, left open the possibility that even where an employer uses the words “request for review,” but it is clear that the employer is seeking consideration or where there is ambiguity, BALCA will determine whether the CO abused his discretion by sending the file into the BALCA queue without first treating it as a request for reconsideration and reviewing the supplemental evidence.

Step 2. BALCA recognized that not all supplemental evidence can be accepted, and could be barred under 20 CFR §656.24(g)(2)(ii) where the employer did have a prior opportunity to submit evidence to the CO during an audit. This would be a case, labeled as Situation 1, where “Application is Filed – Audit – Audit Response – Final Determination – Reconsideration based on evidence submitted in audit response.” Under Situation 1, BALCA will not find that the CO abused his discretion as the supplemental evidence was squarely barred under § 656.24(g)(2)(ii), and the CO was justified in treating the request for reconsideration as an appeal to BALCA. On the other hand, under Situation 2, “Application is Filed – Denial of Application – Reconsideration based on evidence that would have been submitted as part of the audit response,” if a PERM application is denied without an audit, and the employer submits supplemental evidence that could be considered as part of the record under HealthAmerica, the CO should treat it as a request for reconsideration rather than a request for review. See also CVS RX Services, Inc., 2010-PER-01108 (BALCA Nov. 16, 2010) (CO abused his discretion by referring file to BALCA when employer submitted supplemental evidence, after denial without audit, justifying that a professional journal was appropriate even though the position required a bachelor’s degree with no experience).

Step 3. BALCA further recognized that even in cases that fall squarely under Situation 1, the circumstances of an audit may not have been specific enough to put the employer on notice regarding a specific deficiency. Thus, these cases would be treated under Situation 2, even if an employer received an audit, but argues that it did not receive specific notice, the request for review should be treated as a request for reconsideration so that the employer has a fair opportunity to present supplemental evidence to the CO.

Denzil Gunnels, thus, opens the door for an employer to argue that it may not have received adequate notice of the deficiency and appears to provide a way around a strict application of the prohibition to present supplementary evidence that would otherwise be barred by 20 CFR §656.24(g)(2)(ii). Thus, as an example, in its denial CO objected to whether a Sunday newspaper was appropriate or whether a specific US worker was lawfully rejected or not, one can argue that the generic boilerplate audit notice, even if it asked for evidence of the employer’s recruitment, did not adequately apprise the employer of these potential deficiencies, and can seek to supplement the record through a motion to reconsider. On the other hand, if an employer inadvertently submits an erroneous copy of an advertisement in response to an audit notification for evidence of recruitment, BALCA has held that this situation is the precise type of evidence barred by § 656.24(g). SeeTechdemocracy LLC, 2009-PER-00459, 2011-PER-00058 (BALCA Nov. 16, 2010).

Cyrus Mehta

BALCA DISREGARDS SEPARATE ENTITY IN MATTER OF PA’LANTE

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This post is about a small bore issue. It is about a quibble that I have about a footnote in a decision of the Board of Alien Labor Certification Appeals (BALCA) in Matter of Pa’Lante, 2008 PER 00209 . But I think it is worth pointing out so that a future appellant can remind BALCA that it got it wrong.

I have no dispute with Matter of Pa’Lante in general. It resulted in a good outcome for the employer who was snared by PERM’s hyper-technical rules. The labor certification, filed in 2006, was for an executive pastry chef, and the position required a bachelor’s degree in culinary arts and one year of experience in the job offered. In the alternative, the position required a combination of education and experience, amounting to two years of experience. The sponsored employee had the requisite degree, and only needed to demonstrate one year of experience in the offered position. According to the decision, the labor certification did not list the employee’s prior experience, and the labor certification was denied as the pastry chef did not qualify for the job for which he had been sponsored. It only listed his experience with the employer who was sponsoring him. If one reads carefully, the decision states that “the only jobs listed in Section K. involved prior experience by the Alien in the job offered with the restaurant at which he currently works for the petitioning Employer, or what appears to be other restaurants owned by the Employer it only listed his experience with this employer or with restaurants owned by the same employer from 2002 to 2006.” With respect to experience gained with the same employer, 20 C.F.R. 656.17(i) clearly requires the employer to state its actual minimum requirements and that it has not hired people below these actual minimum requirements. So if the employer hired someone at an entry level, it cannot list one year as a minimum requirement as the sponsored employee was not hired with that experience.

But in Pa’Lante the pastry chef had substantial prior experience before 2002, which was introduced in response to the audit notification by way of a detailed evaluation of an educational consultant that was prepared in 2000. BALCA correctly applied HealthAmerica, 2006-PER-1, which held that a mere typographical error on the form should not result in a denial if there was actual evidence of compliance and reversed the CO’s denial. In HealthAmerica, an incorrect date on the application as to when the Sunday advertisement ran was not fatal when it could be proved that the actual advertisement ran on a Sunday. According to BALCA, Pa’Lante involved more than a typographical error as there was a wholesale omission of the required experience. On the other hand, BALCA reasoned that since the employer was able to introduce detailed evidence in its audit response and motion for reconsideration that was not fabricated or prepared after the filing, it would forgive the omission of experience and applied HealthAmerica.

Pa’Lante is essentially a good decision as it broadened the HealthAmerica doctrine beyond typographical errors. But in footnote 2 of its decision, BALCA stated:

“The record is not clear whether the restaurants listed in Section K of Form 9089 are all owned by he same business entity. They appear to be, possibly making that experience (from March 2002 to the date of filing of the PERM application) ineligible for consideration as experience gained prior to hire by the sponsoring employer. See generally Inmos Corp., 1988-INA-326 (June 1, 1990) (en banc). The Employer seems to acknowledge that it in its reply brief. Nonetheless, the audit documentation clearly establishes that the Alien had the requisite qualifications for the job as early as 2000 – well before he started work for one of the Employer’s restaurants.”

BALCA cited law that has been overturned. Current 20 C.F.R. 656.17(i)(5)(i) refers to “employer” as an entity with the same Federal Employer Identification Number (FEIN). Thus, if two entities, even if owned by the same person, or where one is a subsidiary and the other a parent, have two FEINs, then experience with one entity can be used as a job requirement by another entity. This change was brought about by the new Program Electronic Review Management (PERM) rule (see 69 Fed. Reg. at 77354 (Dec. 27, 2004)), which rejected the pre-PERM law that considered entities owned by identical shareholders or a parent-subsidiary as the same employer even if they had different FEINs. Pre-PERM, if the sponsored employee gained experience with one restaurant and was sponsored by another, and both had identical shareholders and corporate officers, that experience was considered on-the-job experience and could not be used as a job requirement in the labor certification. See e.g. Salad Bowl Restaurants, 90-INA-230 (BALCA June 12, 1990). BALCA in Salad Bowl Restaurants held that for the DOL to consider on-the-job experience gained with the other employer, the sponsoring employer “must demonstrate that its ownership and control are separate and distinct from the company where the employee gained his qualifying experience,” and if distinction can be shown, it must also show that the two employers have “distinct operational independence.”

Pa’Lante involved a filing after the PERM rule took effect, and any experience gained at a different entity may have still qualified. It appears that the experience of the pastry chef listed from March 2002 may have been eligible for consideration as experience gained prior to hire by the sponsoring employer, contrary to BALCA’s assertion in footnote 2. BALCA itself acknowledged that some of the experience may have been gained by other restaurants owned by the same entity. To be fair, nothing in the BALCA decision indicates whether these restaurants had different FEINs. They may not have been separate entities and may have been branches or divisions of one entity. Yet, BALCA did not analyze it this way by distinguishing between the rule prior to PERM and after. BALCA instead cited Immos Corp, supra, which held along the same lines as Salad Bowl Restaurants that experience gained by an employee at a parent corporation was counted as on-the-job experience when it’s wholly owned US subsidiary filed the labor certification. Immos along with Salad Bowl Restaurants have been overturned after PERM and should not have been relied upon by BALCA.

While many of the rules under PERM have complicated the labor certification process further, one exception was 20 C.F.R. 656.17(i)(5)(i), which elegantly and simply suggests that two entities with different FEINs are not the same employer for purposes of on-the-job experience prohibition. With this rule, there is no longer any need to analyze whether two entities owned by the same shareholder or shareholders had “distinct operational independence.” The rule also reflects modern day realities involving corporate reorganizations. To illustrate, if the worker was working for an employer with a different FEIN number that was acquired or merged into the sponsoring employer, the experience gained by this worker for the predecessor entity would not be considered prohibited “on-the-job” experience, as the experience was gained with an entity with a different FEIN. There was no need for BALCA in Pa’Lante to resurrect old ghosts that have long since been exorcised.