U.S. Department of Labor Board of Alien Labor Certification Appeals
800 K Street, NW, Suite 400-N
Washington, DC 20001-8002
(202) 693-7365 (FAX)
DATE: September 21, 2000
CASE NO.: 2000 - INA - 150
In the Matter of:
AQUATEC WATER SYSTEMS, Employer,
on behalf of
Appearance: James L. Rosenberg, Esq. Santa Ana, CA
Certifying Officer: Rebecca Marsh Day, San Francisco, CA
Before: Holmes, Vittone, and Wood
JOHN C. HOLMES
Administrative Law Judge
DECISION AND ORDER
This case arose from an application for labor certification on behalf of Alien Alberto Ramirez (“Alien”) filed by Aquatec Water Systems (“Employer”) pursuant to § 212(a)(5)(A) of the Immigration and Naturalization Act, as amended, 8 U.S.C. § 1182(a)(5)(A) (the “Act”), and the regulations promulgated thereunder, 20 C.F.R. § 656. The Certifying Officer (“CO”) of the United States Department of Labor, San Francisco, California, denied the application, and the Employer and the Alien requested review pursuant to 20 C.F.R. § 656.26.
Under § 212(a)(5) of the Act, an alien seeking to enter the United States for the purpose of performing skilled or unskilled labor may receive a visa if the Secretary of Labor (“Secretary”) has determined and certified to the Secretary of State and to the Attorney General that 1) there are not sufficient workers who are able, willing, qualified, and available at the time of the application and at the place where the alien is to perform such labor, and 2) the employment of the alien will not adversely affect the wages and working conditions of the U.S. workers similarly employed.
Employers desiring to employ an alien on a permanent basis must demonstrate that the requirements of 20 C.F.R. § 656 have been met. These requirements include the responsibility of the Employer to recruit U.S. workers at the prevailing wage and under prevailing working conditions through the public employment service and by other reasonable means in order to make a good faith test of U.S. worker availability.
The following decision is based on the record upon which the CO denied certification and the Employer’s request for review, as contained in an Appeal File (“AF”), and any written argument of the parties. 20 C.F.R. § 656.27(c). All parties were served with a Notice of Docketing and Order Requiring Statement of Position or Legal Brief on March 10, 2000; they were notified that all parties had twenty-one (21) days to submit a statement or brief, and such was required if a ground of appeal was not stated in the request for review by the Board of Alien Labor Certification Appeals (the “Board”).
Statement of the Case
On August 30, 1994, Employer filed an application for labor certification to allow it to fill the position of “Supervisor” in its water products assembly business, located in Anaheim, California. The duties of the position were described as:
Supervise and coordinate activities of workers engaged in the assembly of electrical wiring for industrial water pumps and R.O. systems. Apply knowledge of assembly and wiring. Interpret job orders and work specifications for assurance of adherence to specs and establish adjustment procedures as required. Demonstrate set-up, assembly and operation of each system with methods to inspect, test and finalize assembly.
A grade school education and two years of experience in the offered job were required. The work schedule was 7:30 a.m. to 4:00 p.m., for a 40 hour work week. The position paid $18.00 per hour. No overtime was required. (AF 21).
The Employer filed a more detailed description of the business and examples of wiring schematics for products in response to an inquiry from the State of California’s Employment Development Department (“EDD”). (AF 27-38).
Employer advertised and posted the position in accordance with the applicable regulations, and four referrals were obtained. (AF 40-43, 56-58). The results of recruitment were reported by a letter dated July 2, 1996. Three of the referrals, listed as “Category B” applicants who were registered with EDD, were reported to have never contacted the Employer or provide any means of contact for the Employer to use, and were found unavailable. The fourth applicant, a “Category A” referral who had specifically applied for the position, did not respond to two phone messages left on his machine or to a letter sent by certified mail, return receipt requested, on June 25, 1996. He was also found to be unavailable and uninterested. (AF 47-48).
A Notice of Findings (“NOF”) was issued on September 20, 1999 which proposed to deny the labor certification on the ground that the Employer had not adequately documented job related reasons for rejecting the Category A applicant, Mr. Henry Petereit. Specifically, the CO found that the Employer had not exercised good faith efforts in attempting to contact the applicant, and noted that “negative results from an untimely attempt...is [sic] not considered to be a rejection of the worker for lawful, job related reasons.” The résumé was forwarded to Employer on April 18, 1996, and a phone call was placed on April 30, 1996 which urged Mr. Petereit to contact the Employer and explaining the position.. A second call was made on May 27, 1996. Finally, a certified letter, return receipt requested, was sent on June 25, 1996. The letter scheduled an interview for the applicant and referenced the two prior attempts at phone contact. A questionnaire sent to the applicant was returned on June 14, 1996, and Mr. Petereit asserted that he had not been contacted, but he would have been willing to accept the position. The lateness of the letter in the recruiting process, the sparsity of phone calls, and the lack of documentation of the calls were also noted in finding that the Employer had not shown good faith. (AF16-19).
Employer filed a Rebuttal to the deficiencies noted in the NOF on October 19, 1999. This consisted of a two page letter from counsel, signed by Employer, reiterating the attempts at contact which were made with regard to Mr. Petereit. The Employer argued that the credibility of the applicant, not the Employer, was at issue in light of the dispute over whether contact had been made. Further, the Employer rejected the speculation that the letter was sent too late to allow a reasonable time for the applicant to respond before the close of the recruitment period. Finally, Employer asserted that the CO wrongly placed the burden of recruitment on it; the initial contact by telephone triggered the applicant’s responsibility to contact the Employer. The second call was therefore justifiably placed a month later and is proof of good faith. (AF 7-9).
The CO issued a Final Determination (“FD”) on November 9, 1999 denying certification. The Employer failed to rebut the finding of a lack of good faith. Employer bore the burden of proof, and failed to show that contact was attempted or made. (AF 5-6).
Employer requested administrative review of the denial on December 6, 1999 on the ground that Mr. Petereit was rejected for lawful reasons. (AF 1).
The employer bears the burden in labor certification both of proving the appropriateness of approval and ensuring that a sufficient record exists for decision. 20 C.F.R. § 656.2(b); Giaquinto Family Restaurant, 1996-INA-64 (May 15, 1997); Carlos Uy III, 1997-INA-304 (March 3, 1999)(en banc).
An employer must show that U.S. applicants were rejected solely for lawful jobrelated reasons. 20 C.F.R. § 656.21(b)(6). Furthermore, the job opportunity must have been open to any qualified U.S. worker. 20 C.F.R. § 656.20(c)(8). Therefore, an employer must take steps to ensure that it has obtained lawful jobrelated reasons for rejecting U.S. applicants, and not stop short of fully investigating an applicant's qualifications.
Although the regulations do not explicitly state a "good faith" requirement in regard to postfiling recruitment, such a good faith requirement is implicit. H.C. LaMarche Enterprises, Inc., 1987INA607 (Oct. 27, 1988). Actions by the employer which indicate a lack of a good faith recruitment effort, or actions which prevent qualified U.S. workers from further pursuing their applications, are thus a basis for denying certification. In such circumstances, the employer has not proven that there are not sufficient United States workers who are "able, willing, qualified and available" to perform the work. 20 C.F.R. § 656.1.
An employer must make efforts to contact qualified U.S. applicants in a timely fashion after the receipt of resumes from the state job service agency. Failure to timely contact the U.S. applicants indicates a failure to recruit in good faith. Contact should be made “as soon as possible.” Importantly, mere compliance with the deadlines for recruitment established by a job service does not make recruitment in good faith as a matter of law. Loma Linda Foods, Inc., 1989INA289 (Nov. 26, 1991) (en banc).
Here, we agree with the CO that the actions of the Employer in recruiting do not establish good faith efforts to locate qualified and willing U.S. workers. The EDD instructed Employer to contact each referral “within 14 calendar days” and cautioned Employer that a delay in contacting applicants could result in a finding that “you have not conducted your recruitment in good faith.” (AF 56). Mr. Petereit was referred on April 18, 1996. A call was allegedly placed to him on April 30, 1996, very near the end of the 14 day period. A full month passed before a second attempt at phone contact was made. Another month passed before a letter was sent. Further, as the CO noted, the letter was mailed on June 25, 1996, only a week before the scheduled interview on July 1, 1996 and the close of the recruitment period on July 2, 1996. We agree that this was not realistically sufficient time for the applicant to receive the notice that a letter was available, sign for such, receive the letter, and respond by the deadline.
Taken as a whole, this pattern of attempted contact does not establish good faith efforts. The Employer bears the burden of proof in employment certification, and should have taken reasonable steps to prove that the U.S. worker was indeed unavailable or uninterested. Two phone calls over 2 months and a letter sent at the last minute are not reasonable steps, and therefore do not indicate good faith in recruiting. Moreover, it has been alleged by the applicant that no phone contact was made. The lackadaisical approach to recruitment demonstrated by Employer tends to support his allegation. As further indication of the lack of good faith, Employer failed to produce any evidence that the certified letter was ever received, even though sufficient time had passed from the mailing until the filing of the rebuttal to allow for a receipt to be obtained. Even if it had not been picked up, Employer could have tracked the letter to establish when it was available for pick up.
Based on the foregoing, the Final Determination of the CO is affirmed, and labor certification is denied.
For the Panel:
John C. Holmes
Administrative Law Judge
NOTICE OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Order will become the final decision of the Secretary unless within 20 days from the date of service a party petitions for review by the full Board of Alien Labor Certification Appeals. Such review is not favored, and ordinarily will not be granted except (1) when full Board consideration is necessary to secure and maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance. Petitions must be filed with:
Chief Docket Clerk
Office of Administrative Law Judges
Board of Alien labor Certification Appeals
800 K Street, N.W., Suite 400
Washington, D.C. 20001-8002
Copies of the petition must also be served on other parties, and should be accompanied by a written statement setting forth the date and manner of service. The petition shall specify the basis for requesting full Board review with supporting authority, if any, and shall not exceed five double-spaced typewritten pages. Responses, if any, shall be filed within ten days of service of the petition, and shall not exceed five double-spaced typewritten pages. Upon granting of the petition the Board may order briefs.