BALCA vacates Final Determination and remands for proper procedures to re-advertise

The Board of Alien Labor Certification Appeals (BALCA) recently vacated the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Fabric and Apparel Patternmaker.” This LC was filed prior to the effective date of the “PERM” regulations.

In the aforementioned case, the employer, a garment manufacturer and wholesaler filed a LC on behalf of an alien worker in February of 2003. In the application, the employer required two years of experience in the job offered. In the Notice of Findings (“NOF”) issued in June 2007, the CO found that the Employer’s advertisement did not meet the criteria for certification because the advertisement did not state the minimum job requirements that appeared on Form ETA 750, Part A. On the LC, the job requirements included two years of experience with no formal education required. Whereas, the advertisement; however, listed the requirements for the job as “2 years exp/AA degree.” The CO stated that it was unduly restrictive to advertise for job requirements in excess of those that were specified on the original LC. To respond to the NOF, the CO stated that the Employer was required to provide a copy of the advertisement and internal posting notice that was placed during the 30 day recruitment period. Additionally, the CO stated that the advertisement must reflect the same job requirements that were stated by the Employer on ETA Form 750-A. In response to the NOF, the Employer submitted a rebuttal which explained that the additional education requirement was a clerical error made at the Employer’s law firm. To rectify the mistake, the Employer drafted another advertisement and ran the new advertisement for three days in June of 2007. Subsequently, the CO issued a Final Determination in July of 2007. In the Final Determination the CO found that the Employer’s rebuttal evidence did not correct the deficiencies raised in the NOF. Specifically, the Employer re-advertised without permission or obtaining further instructions. Thereafter, the matter was referred to BALCA for review. In its request for review, the Employer argued that the NOF did not state that permission to re-advertise was required, nor did it state when or how to obtain permission to re-advertise.

Upon BALCA review, pursuant to the regulations at 20 C.F.R. § 656.25(c), if a CO does not grant certification, an NOF must be issued which states: (1) the date on which the NOF was issued; (2) the specific grounds for issuing the NOF; and (3) the date by which a rebuttal must be made. Specifically, the NOF must give notice which is adequate to provide the employer an opportunity to rebut or cure the alleged defects. An adequate notice of deficiencies should identify the section or subsection allegedly violated, the nature of the violation, the evidence supporting the challenge, and instructions for rebutting or curing the violation.

From the record, it was clear that the NOF listed the sections allegedly violated, the nature of the violation, and the evidence supporting the challenge. However, the NOF included only one set of instructions for rebutting the violation – to submit evidence contradicting the findings. In this case, the Employer admitted that the alleged violation had occurred. The problem is that the NOF did not include any instructions for curing the violation if the Employer agreed such a violation had occurred. The Board’s caselaw, permits an error in recruitment to be cured, if appropriate, by re-advertisement during the rebuttal period.

Accordingly, the Board found that the Employer’s re-advertisement as submitted in its rebuttal evidence establishes the Employer’s intention to correct the advertisement deficiencies noted in the NOF. Due to these circumstances, the Final Determination was wrongly issued by the CO in that it failed to include instructions on how to re-advertise. The Board stated that the CO should have issued a second NOF clarifying what actions the Employer could take to cure the admitted defects.

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