BALCA Affirms Labor Certification Denial Where Employer Submitted Two Contradictory NOFs

Labor Certification ApplicationThe Board of Alien Labor Certification Appeals (BALCA) issued a decision titled the Matter of Norman W. Fries, Inc. d/b/a Claxton Poultry Farms, 2012-PER-01071 (Jan. 29, 2016) [PDF version]. In the decision, the Board upheld the denial of a labor certification application where the employer filed two contradictory Notice of Filings (NOFs), where only one NOF satisfied the regulatory requirements under 20 C.F.R. 656.10(d)(4). We will look at the facts of the case and the reasoning behind the BALCA's decision.

Case Background

  • The Employer filed an Application for Permanent Employment Certification (ETA Form 9089) sponsoring an alien for permanent employment in the United States.
  • The Certifying Officer (CO) audited the application.
  • The Employer's response to the audit contained a Notice of Filing (NOF) that failed to name the Employer.
  • The CO reviewed the audit response and subsequently denied labor certification on five grounds.
  • The Employer submitted a request for reconsideration that disputed each of the five grounds on which the initial denial of labor certification was based upon. The Board only considered the Employer's appeal of the denial on the third ground, that the NOF submitted by the Employer “did not conform with 20 C.F.R. 656.10(d)(4) because it did not include the name of the Employer.”
  • The Employer argued “[t]he advertisements did name the employer, please refer to the newspaper advertisement copies attached hitherto.” The Employer mistakenly referenced newspaper advertisements here. However, the list of exhibits included by the Employer with the response “clarified that [it] intended to address the NOF deficiency.” These exhibits included proof of posting the NOF, a picture copy of the NOF, and a copy of the original NOF. The request for reconsideration also included a revised NOF that named the Employer and included a photograph of the NOF posted on a bulletin board.
  • The CO determined on reconsideration that “the Employer did not squarely address the NOF deficiency because its request for reconsideration referenced newspaper advertisements.” Furthermore, while the CO accepted the NOF submitted on reconsideration in order to establish when the NOF was posted (thereby satisfying one of the five denial grounds), the CO stated that the “NOF cannot be utilized to satisfy the issues concerning the employer's name” because “[a] comparison of the initial NOF submitted with the audit response and the NOF submitted with the reconsideration request contain substantial differences concerning the employer's name.” Accordingly, the CO affirmed his denial of certification.

Discussion and Decision

The Board had two issues before it:

  1. Whether the evidence submitted by the Employer on reconsideration was part of the record for it to review;
  2. Whether the NOF complied with 20 C.F.R. 656.10(d)(4).

Whether the Evidence Was Part of the Record

The Board explained that for applications submitted after July 16, 2007, “a request for reconsideration submitted on behalf of an application may only include” [under 20 C.F.R. 656.24(g)(2)(i)-(ii)]:

  1. Documentation that the CO received from the employer in response to a request from the CO;
  2. Documentation the employer did not have the opportunity to present the CO, but which existed at the time the application was filed.

Additionally, the Board noted that BALCA is only permitted to review evidence that was part of the record upon which the CO's decision was made [citing 20 C.F.R. 656.26(a)(4)(i) and 656.27(c)].

On the surface, this would seem to bar review of the Employer's second NOF. However, the Board explained that there is a narrow exception to 20 C.F.R. 656.24(g)(2)(i)-(ii) when the CO “actually considers” evidence submitted on reconsideration. The Board cited previous BALCA decisions that have defined what it means for the CO to “actually consider” evidence on reconsideration:

  1. If the CO states that the evidence is barred by 20 C.F.R. 656.24(g)(2)(i)-(ii), the CO does not actually consider the evidence if he merely describes and quotes the evidence. [the Matter of New York City Dept. of Ed., 2012-PER-3766 (May 29, 2015).
  2. If the CO considers whether the evidence would rectify the reason for denial, then he has “actually considered” the evidence and it is part of the record regardless of whether he states it is barred by 20 C.F.R. 656.24(g)(2)(i)-(ii). [id.; the Matter of Take Solutions, Inc., 2010-PER-449 (Sept. 8, 2010).
  3. If the CO does not state that the evidence is barred by 20 C.F.R. 656.24(g)(2)(i)-(ii), then BALCA may consider the evidence part of the record if it was acknowledged by the CO [Matter of New York Dept. of Ed.].

In this case, the CO acknowledged the evidence and never stated that it was barred under 20 C.F.R. 656.24(g)(2)(i)-(ii). Furthermore, while the Board noted that the mere acknowledgment of the evidence would have been sufficient to consider it part of the record, the CO also used the evidence to determine the time on which the original NOF was posted.

The Employer's Notice of Filing

Under 20 C.F.R. 656.10(d)(1)(ii), the employer filing an ETA Form 9089 under the basic process found in 20 C.F.R. 656.17 must have already notified its employees of the application by posting an NOF at the facility or location of employment.

Under 20 C.F.R. 656.10(d)(4), the NOF must contain all of the information required for advertisements found in 20 C.F.R. 656.17(f). Among these is the requirement that the name of the employer must be listed [20 C.F.R. 656.17(f)(1)].

The Board noted that in the instant case, the NOF submitted in response to the audit failed to comport with the requirements of 20 C.F.R. 656.10(d)(4) while the NOF submitted with the Employer's request for reconsideration conformed with the regulatory requirements. However, the Board noted that the Employer failed to account for the discrepancy, and additionally “asserts the NOF submitted with its request for reconsideration is the same document it submitted with its audit response.” Furthermore, the Board noted that the photograph of the NOF on a bulletin board submitted with the request for reconsideration was clearly neither of the NOFs submitted by the Employer.

Because the Employer failed to account for the discrepancy between the two NOFs it submitted and because the photograph it submitted suggested that neither of the NOFs was posted, the Board determined that the Employer did not meet its burden of demonstrating that it satisfied all of the regulatory requirements for labor certification. Accordingly, the Board affirmed the CO's denial of labor certification.

Conclusion

As the Board stated in its decision:

“The NOF is not a mere technicality, but is an implementation of a statutory notice requirement designed to assist interested persons in providing relevant information to the CO about an employer's certification application.”

This decision serves as a reminder that any issues with regard to the NOF that call into question whether the NOF posted at the job site met all of the regulatory requirements may prove fatal to a labor certification application. It is always recommended to consult with an experienced immigration attorney in the labor certification application process in order to ensure that all of the proper steps and procedures are followed.