BALCA Finds Inconsistency in DOL Regulation Found in 20 CFR 656.17

On December 14, 2015, the Board of Alien Labor Certification Appeals (BALCA) issued a decision in Matter of Terrence O'Neill, 2012-PER-00404 (Dec. 14, 2015) [PDF version] where it declined to penalize an employer for the late filing of the Form 9089 based on the regulatory construction of 20 C.F.R. 656.17(e)(2). We will explain the issues in the case and the majority and dissenting opinions.

Facts of the Case

The Employer sponsored an alien for permanent residency for the nonprofessional position of “Stonemason.” The Employer sought labor certification for the alien. Its application indicated that:

The Employer placed a job order with the State Workforce Agency (SWA) that was posted from March 17, 2009 to April 15, 2009;
The Atlanta National Processing Center date-stamped the application as received on September 14, 2009 and assigned that date as the filing date.

The Certifying Officer (CO) denied labor certification because the Employer's Form 9089 Application indicated that the SWA job order was posted 181 days from the date of the filing of the application. This denial was based on the regulation found in 20 C.F.R. 656.17(e)(1)(i), which states:

The mandatory recruitment steps must be conducted at least 30 days, but no more than 180 days, before the filing of the application.

The Employer filed a motion for review and reconsideration of the denial. As part of the evidence, the Employer attached an invoice that showed that it paid for overnight delivery of the application on September 11, 2009, and argued that the postmark date (September 11) should be considered the filing date. If the Employer's argument was accepted, the application would have been filed on day 178 rather than day 181.

The CO declined assessed the evidence, but upheld the denial.

Majority Decision

The majority decision in Matter of Terrence O'Neill noted that the employer had applied the wrong regulation in its denial. Because the petition was for a “non-professional position,” the applicable regulation was 20 C.F.R. 656.17(e)(2). However, the majority held that this was “harmless error” because both 20 C.F.R. 656.17(e)(1)(i) and 20 C.F.R. 656.17(e)(2) have the same 180 day limit. The regulation in 20 C.F.R. 656.17(e)(2) states:

If the application is for a nonprofessional occupation, the employer must at a minimum, place a job order and two newspaper advertisements within 6 months of filing the application. The steps must be conducted at least 30 days but no more than 180 days before the filing of the application.

The majority in Matter of Terrence O'Neill declined to reach the question of whether the filing date was the postmark date or the date on which the application was date-stamped as received at the Atlanta National Processing Center because it found that resolving the question was unnecessary in deciding the issue.

Instead, the majority found that the language of the regulation was “potentially contradictory.” It focused on the phrases “within 6 months of filing the application” and “but no more than 180 days before filing the application.” The majority noted that while the September 14 filing date would have been 181 days after filing the application, six months from the date of the filing of the application would have been September 17. Therefore, the majority noted that the Employer filed on time under one part of the regulation and late under a different part of the same regulation. Accordingly, the majority reversed the CO because it found that:

The regulation allowed for two possible outcomes;
It would be unfair to penalize the employer for the inconsistency in the regulation.

Dissenting Opinion

The dissenting opinion filed by Administrative Law Judge William S. Colwell differed from the majority on two points.

First, the dissent argued that because the Employer did not make the argument that the regulation was inconsistent, that issue was beyond the scope of what the BALCA should have considered (under 20 C.F.R. 656.26(a)(4)(i)).

Second, the dissent argued that the regulation was not inconsistent. The dissent suggested that the job offer must have been “placed” within 6 months of the filing of the application for the job order, but that the job order must have been “conducted” within 180 days. Under this reading, the dissent argued that the CO was correct to rely on 180 days, and that the next step would be to address the Employer's arguments.

To that effect, the dissent argued that the CO was correct in relying on the September 14 date as the filing date. It cited the Matter of Café Vallarta, 2007-PER-29 (June 12, 2007) [PDF version] which noted that the Employer which does not use the ETA electronic filing process for a Form 9089 must allow for sufficient time for the Form 9089 to be transmitted by mail and processed to ensure that it will be date-stamped before the 180 day limit.

Accordingly, Judge Colwell stated that he would have upheld the CO's decision to deny labor certification.

Conclusion

Despite the narrow favorable decision for the employer in the Matter of Terrence O'Neill, an Employer should air on the side of caution when mailing a Form 9089 and work under the assumption that the limit is strictly 180 days to air on the side of caution. It will bear watching whether this decision is adopted by subsequent BALCA panels for similar issues, and whether the DOL reassesses the wording of 20 C.F.R. 656.17(e)(2).