BALCA Decision Upholds Denial Where Employer Failed to List All Requirements on Form 9089

 

Introduction

PERM ProcessIn the Matter of New York City Dept. of Education, 2012-PER-03049 (Dec. 21, 2015) [PDF version], the Board of Alien Labor Certification Appeals (BALCA) upheld the denial of a labor certification application where the Employer was found to have improperly rejected two U.S. job applicants who were minimally qualified for the job position described on the ETA Form 9089. Furthermore, the Board ruled that the Certifying Officer's (CO's) issuing a second denial of labor certification without ruling on an initial motion for reconsideration did not mean that the CO conceded all of the Employer's arguments in the initial motion for reconsideration.

Facts of Matter of New York City Dept. of Education

The Employer sought labor certification for the position of “Chemistry Teacher.” On the ETA Form 9089, the Employer listed the following job requirements:

  • Bachelor's Degree in Education, Chemistry, Science, or a related field; and
  • New York State Certification.

The CO issued an Audit Notification Letter after reviewing the ETA Form 9089, requiring the Employer to submit documentation listed in 20 C.F.R. 656.20 [PDF version], to which the Employer responded with the requisite evidence.

The CO denied labor certification because the Employer unlawfully rejected two U.S. workers who were minimally qualified for the position, in violation of 20 C.F.R. 656.10(c) [PDF version]. However, the CO's denial letter appeared to refer to another labor certification application submitted by the same Employer for a “Biology & General Science Teacher” position.

The Employer filed a motion for reconsideration. It argued that the denial letter referred to the wrong job position and job requirements, and that neither of the two U.S. workers were qualified for the “Chemistry Teacher” position because neither “had the required certification in Chemistry for the state of New York.” It explained that New York does not provide a general certification for teachers, but rather distinct certifications in each subject.

The CO did not rule on this motion for reconsideration, but instead issued a second denial letter. In the second denial letter, the CO clearly referred to the Chemistry Teacher position and concluded that the Employer had unlawfully rejected two different minimally qualified U.S. applicants because the ETA Form 9089 did not state that “New York Certification in Chemistry” was a job requirement, but only “New York State Certification,” which both applicants possessed.

The Employer filed a second motion for reconsideration in response to the second denial. The Employer made two primary arguments:

  1. The Employer was not required to specify “New York certification in Chemistry” on the ETA Form 9089 because it was implied.
  2. By failing to rule on the first motion to reconsider, the CO accepted the Employer's arguments and conceded all of the issues in the first denial.

In response to the second motion to reconsider, the CO forwarded the matter to the BALCA. The CO argued that under the PERM process, labor certification can only be granted solely on the basis of information included in the ETA Form 9089, and that the Employer should have specified “New York certification in Chemistry.”

The Decision in Matter of New York City Dept. of Education

The BALCA rejected both of the Employer's arguments.

The Board first rejected the Employer's argument that the Chemistry certification requirement was implied. The Employer sought to rely upon a pre-PERM decision titled Matter of Veterans Admin. Med. Ctr., 1988-INA-70 (Dec. 21, 1988) (en banc) [PDF version], which stated that it was possible in certain cases that some requirements may be implied.1 First, the Board noted that as a pre-PERM decision, it was no longer binding. Second, the Board stated that it was “not convinced that any requirements may be implied under the strict PERM process.” Finally, the Board stated that the Chemistry certification requirement was not implied under the logic of the pre-PERM decision.

The Board concurred with the CO's statement that the purpose of the PERM system is to allow the CO to review the application solely based on the record as submitted. Accordingly, because the Employer's ETA Form 9089 only stated that “certification” was required, the Board upheld the CO's denial.

In response to the Employer's second argument, the Board explained that when the CO does not address his first denial reason in a subsequent second denial letter, it treats the CO's silence as meaning that the original ground for denial is no longer an issue. The Board noted that the CO recognized that he referred to the wrong labor certification application in the first denial letter, and that his decision to issue a second denial letter based on the correct application did not signify the intent to concede all of the Employer's arguments in the first denial letter.

Conclusion

This case highlights the fact that nothing can be taken for granted in the filing of an ETA Form 9089. Had the Employer simply specified that “Chemistry certification” was required, it would have had grounds to reject the applications of the two workers in question. However, the PERM system requires the CO to adjudicate the petition based only on the evidence in the record and not to “investigate the circumstances of each employer's business.” It is always wise for an Employer to consult with an experienced immigration attorney in matters concerning the PERM process to minimize the risk of making avoidable mistakes that can lead to the denial of labor certification.

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  1. Footnote 2 in the decision notes that the example of “English language proficiency” was used in the older decision.