En Banc Review Addresses Issue of SWA Job Order Documentation

From: USADNEWS Volume VI, Issue 2

Two recent cases decided by the Board of Alien Labor Certification Appeals (BALCA) addressed the question of what constitutes sufficient proof of a job order placed with the State Workforce Agency (SWA). In the case of A Cut Above Ceramic Tile, the Employer’s application was denied because they did not provide a proof of the SWA job order that contained the content of the job order, in response to an audit notification. BALCA upheld the denial by the Certifying Officer (CO), concluding that the Employer failed to comply with the CO’s request for additional documentation of the job order posting.

The Employer subsequently requested en banc review of the decision, based on a previous conflicting decision in the case of Mandy Donuts Corp., which was reviewed in the January 2011 issue issue of USADNEWS. In this case, the CO’s denial was reversed because BALCA determined that the regulations at 20 C.F.R. § 656.17(e)(2)(i) stipulate that the only documentation required of the job order is to enter the start and end dates of the job order on the application.

In its en banc brief, the CO argued that the Board had misinterpreted the regulations in the Mandy Donuts decision and that Section 656.17(e)(2)(i) only referred to documentation of the timeframe of the job order, and did not refer to proof of the job order itself. The Employer however noted that the PERM regulations never require an employer to provide any other proof of a job order, which is in direct contrast to the specific regulations pertaining to documenting a job order for an H-2B case. The American Immigration Lawyers Association (AILA) filed an amicus brief supporting the Employer’s position, and pointed out that in a response to comments during rulemaking, the Employment and Training Administration (ETA) stated that supporting documentation is that which is “specified in the regulations.” If there is nothing specified in the regulations requiring an employer to retain proof of the SWA job order, the CO cannot deny an application based on the employer’s failure to provide that.

In the en banc ruling, BALCA upheld their decision in Mandy Donuts. Furthermore, they agreed with the Employer’s argument contrasting PERM and H-2B regulations, stating that “had the ETA intended employers filing an application for permanent labor certification to provide proof of publication of the SWA job order, it would have drafted the PERM SWA job order regulation the same way that it drafted the H-2B SWA job order regulation.” They also referred to the principle of statutory construction as laid out in Russello v. United States, noting that where Congress “includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion of exclusion.”

Furthermore, in examining the regulatory history, BALCA found further evidence in support of the Employer’s case. For instance, in response to a concern about the amount of time allotted to respond to an audit, the ETA replied that no extension of the response time would be granted in order to obtain documentation of a job order because the only proof required is “to provide the start and end date of the job order on the application form to document the job order has been placed. Gathering additional information on the job order form the SWA will not be necessary.”

BALCA also found fault with a previous decision in the matter of Bettina Equities (March 2011), in which the employer was required by the CO to provide proof of the job order because of its direct bearing on the resolution of a specific issue in the case. However, in it’s en banc review BALCA notes that the “direct bearing” standard only applies if the manner of documentation is not specified in the regulations. Since the regulations specify that the only proof required of a job order are the start and end dates entered on the application, no further proof can be subsequently required. BALCA cited Schnabel Engineering, Inc. (November 2011), in which the Board stated that “the CO does not have carte blanche to require just any documentation. The application may only be denied under § 656.20(b) when the absent documentation is required.”

It is important to note, however, that the Board upheld the CO’s authority to request documentation of the job order, and encouraged employers to provide such documentation if they do in fact possess it. Furthermore, the CO may deny an application based on any incorrect information that appears in the job order, if such proof is provided. The CO is only restricted from denying an application because the employer did not provide the additional documentation.