Though BALCA stresses on Due Process But still Upholds Denial

SUMMARY

TRAVEL REQUIREMENTS MUST BE INDICATED EVEN ON THE RECRUITMENT.

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FACTS

1.       The ETA Form 9089 stated in an addendum to Section H.14 that “[o]ccasional day travel within San Antonio Metropolitan area and/or to Corpus Christi, Texas. No Overnights.”

2.       The job order, advertisements, and employer’s website did not include this travel requirement

3.       The CO based his denial on 20 C.F.R. §656.17(f)(7), which states that advertisements must “[n]ot contain wages or terms and conditions of employment which are less favorable than those offered to the alien.”

EMPLOYER’S ARGUMENT

·         The Employer argued that its “recruitment did not say travel wasn’t required, it said nothing about travel whatsoever . . . . Silence cannot be inferred as saying there is no travel involved in the job.” Moreover, because travel has routinely been viewed by the DOL as a detriment, and therefore not listing a travel requirement makes the terms and conditions of employment offered to U.S. workers more favorable, not less favorable, than the terms and conditions of employment offered to the foreign worker.

On February 14, 2012, the CO denied reconsideration and forwarded the case to the Board of Alien Labor Certification Appeals (“BALCA”) for administrative review.

·         The Employer argued in its brief that Section 656.17(f)(7) states that advertisements may not “contain” terms and conditions less favorable than those offered to the alien, and therefore silence on the issue of travel does not violate the regulation. (Er. Br. 3). The Employer cited Emma Willard School, 2010-PER-01101 (Sept. 28, 2011) as an affirmation of this argument. (Er. Br. 3-4). The Employer emphasized that not every term or condition of employment needs to be included in an employer’s advertisements, citing to the DOL’s FAQs.

BALCA’S DISCUSSION

1.       This is a violation of Section 656.17(f)(4), which requires employers to include in their advertisements any travel requirements listed on the ETA Form 9089.

2.       Unfortunately, the CO did not cite to Section 656.17(f)(4) as authority for his denial, and instead he unnecessarily complicated the matter by relying on Section 656.17(f)(7). Reliance on Section 656.17(f)(7) is flawed for several reasons. As pointed out by the Employer in its brief, travel can be considered either a benefit or a burden depending on the individual applicant, and therefore not including travel as a term of employment does not necessarily make the position “less favorable.”

3.       BALCA NOTED THAT It is inexplicable to us why the CO would cite to Section 656.17(f)(7) where there is another subsection directly on point, and we note that this is not the first time the CO has cited to questionable, or patently incorrect, regulations when there is a more applicable and appropriate regulatory section to support his reason for denial. Such deficiencies by the CO defeat the PERM process’ goals of efficiency and streamlining cases.

4.    On the other hand, the Government’s interest is substantial in this matter. Under the PERM regulations, we are limited to either affirming the denial of certification, or reversing the denial and granting certification; we do not have authority to remand the case. 20 C.F.R. § 656.27(c); ETA Final Rule, Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System, 69 Fed. Reg. 77326, 77363 (Dec. 27, 2004) (“we have concluded BALCA should not have authority to remand cases to the CO.”). Thus, by reversing the CO’s denial, we would be required to grant certification for a foreign worker despite a clear violation of the regulations, potentially preventing a qualified U.S. worker from obtaining the position. This is a serious consequence, as it defeats the primary intent of the Immigration and Nationality Act and the implementing PERM regulations. Accordingly, weighing the three factors set out in Mathews v. Eldridge, we find no violation of due process.

5.    Because the record shows that the Employer’s various advertisements did not include the phrase “Occasional day travel within San Antonio Metropolitan area and/or to Corpus Christi, Texas. No Overnights,” that was listed on the ETA Form 9089, we affirm the denial of labor certification pursuant to 20 C.F.R. § 656.17(f)(4).