BALCA: Provide Supplemental Documentation That Your Notice of Filing Was Actually Posted In The Proper Place

In the latest installment of not being able to see the forest for all those darned trees, I submit to you Matter of MT Heating, Inc.:

In this case, there was no deficiency in the content of the NOF, but Employer did not provide supplemental documentation that the NOF was actually posted in the proper place.  In response to the Audit Notification, Employer submitted the NOF, which did not indicate the location in which it was posted (AF 30).  Employer also submitted a signed statement from its President attesting that no applicants contacted Employer in response to its advertisements or NOF posting, but which also failed to state where the NOF had been posted (AF 31).  The only evidence presented that the NOF was posted in the proper place was Employer’s attestation in Section I.e.25 of the ETA Form 9089 that the NOF was posted for 10 business days in a conspicuous location at the place of employment (AF 70).  Because it is not administratively feasible for the CO to investigate the circumstances of each applicant’s business, however, the employer must state in its response to an audit notification that the NOF was posted at the proper location.

Yes, we all believe in following the regulations.  But let us not forget that the overall goal here is to implement INA Sec. 212(a)(5):

(5) Labor certification and qualifications for certain immigrants.- (A) Labor certification.-  (i) In general.- Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that-

(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and

(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.

To summarize, the ETA 9089 stated that the NOF was posted for 10 business days in a conspicuous location at the place of employment.  The decision, however, decries that Employer did not provide supplemental documentation that the NOF was actually posted in the proper place. 

Question1:  How does the failure to provide this ‘supplemental documentation’ support the notion that there were US workers out there who were able, willing, qualified, and available at the place where the work is to be performed?   Answer:  It does not. 

Question2:  How does the failure to provide this ‘supplemental documentation’ lead to the conclusion that the employment will adversely affect the wages and working conditions of US workers similarly employed?  Answer:  It does not. 

Question3:  How does this decision carry out the intentions of the statute?  Answer:   It does not.

The NOF was posted in a conspicuous location at the place of employment.  By definition, the NOF is posted at the workplace as notice to current employees.  Under the circumstances, a more descriptive statement from the employer would have had no effect whatsoever on any potential US worker, wage level, or working condition.

About Jeffrey L Robbins
Jeffrey L. Robbins, Attorney and Director at Lewis & Kappes, PC.

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