Board of Alien Labor Certification Appeals 800 K Street, NW, Suite 400-N Washington, DC (202) (202) (FAX)

Transcription

1 U.S. Department of Labor Board of Alien Labor Certification Appeals 800 K Street, NW, Suite 400-N Washington, DC (202) (202) (FAX) Issue Date: 23 January 2008 BALCA Case No.: ETA Case No.: 2008-INA D In the Matter of: CAMELBACK WEDDING CENTER, Employer, on behalf of SANJIV BHATIA, Alien. Certifying Officer: Appearance: Before: Jenny Elser Dallas Backlog Elimination Center Kuldip Verma Director, Camelback Wedding Center Pro Se for the Employer and the Alien Chapman, Wood and Vittone Administrative Law Judges DECISION AND ORDER PER CURIAM. This case arises from the Employer s request for review of the denial by a U.S. Department of Labor Certifying Officer ( CO ) of its application for labor certification. Permanent alien labor certification is governed by section 212(a)(5)(A) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(5)(A), and Title 20, Part 656 of

2 the Code of Federal Regulations ( C.F.R. ). 1 STATEMENT OF THE CASE On April 30, 2001, the Employer a company engaged in providing wedding ceremonies and receptions filed an application for labor certification on behalf of the Alien for the position of Public Relations Representative. (AF 66). On May 17, 2007, the CO issued a Notice of Findings proposing to deny certification on a number of grounds, one of which that the CO was unable to verify the Employer s existence. The CO listed documentation that the Employer would be required to be submit to establish that it could offer a bona fide job opportunity. (AF 19). By letter dated June 16, 2007, the Employer s director stated that the Alien was no longer employed by him full-time, although the Alien continued to do volunteer work for him from time to time. The director stated that although the Alien had been employed full-time when the application was filed, Camelback Wedding Center was no longer in existence due to railroad construction, and had not been in existence for almost three years. The director stated that because Camelback Wedding Center was no longer in operation, it was not possible to provide the documentation requested in the NOF. The director complained that the certification should have been granted back in 2001, and stated that he was planning to start a new organization and would be happy to employ the Alien, and was still sponsoring the Alien for labor certification. (AF 8). The Alien also submitted a letter in which he stated that he was no longer employed by Camelback Wedding Center. (AF 9). 1 This application was filed prior to the effective date of the PERM regulations. See 69 Fed. Reg (Dec. 27, 2004). Accordingly, the regulatory citations in this decision are to the 2004 edition of the Code of Federal Regulations published by the Government Printing Office on behalf of the Office of the Federal Register, National Archives and Record Administration, 20 C.F.R. Part 656 (Revised as of Apr. 1, 2004), unless otherwise noted. -2-

3 On July 18, 2007, the CO issued a Final Determination denying certification on the ground that Camelback Wedding Center had not been in existence for almost three years, and therefore there was no bona fide employer, bona fide job opening or bona fide site to which U.S. workers could be referred, considered and hired, in violation of 20 C.F.R (c)(8). (AF 5-6). The Employer s director filed a request for BALCA review by letter dated August 17, The director stated that he is still sponsoring the Alien, that he has sufficient funds to support the Alien, and that he has intentions to employ the Alien as a public relations officer and pay the preferred wages as determined by the Department of Labor. The director wrote: In the meantime I am requesting [the Chief Administrative Law Judge] for a review in this particular case so that I am able to understand administrative remedies available in this case. (AF 1). Attached to the appeal request was a letter from the Alien in which he complained about the delay in the labor certification determination. (AF 2). The Appeal File was received by BALCA on October 15, 2007, and a Notice of Docketing was issued on October 24, No briefs were filed by either the Employer or the CO. 2 DISCUSSION Section (c)(8) of the Department s labor certification regulations requires that the employer offer a bona fide job opportunity. Bulk Farms v. Martin, 963 F.2d 1286, 1288 (9th Cir. 1992); Modular Container Systems, Inc., 1989-INA-228 (July 16, 1991) (en banc). In the instant case, the company for which the Alien was to work was 2 The copy of the Notice of Docketing served on the Alien was returned by the U.S. Postal Service as undeliverable. -3-

4 disbanded about three years before the CO issued her Notice of Findings. certification was properly denied. Thus, It is unfortunate that it took several years for the CO to review the application. The Employer and Alien in this matter were not alone. As we noted in HealthAmerica, 2006-PER-1 (July 18, 2006) (en banc): Because of a robust economy, a very large influx of new applications related to the Legal Immigration Family Equity Act and LIFE Act Amendments' extension of section 245i, increased workload relating to temporary labor certification programs, and tight or reduced budgets, by the early 2000s ETA faced a backlog of over 350,000 permanent alien labor certification applications. See Liberty Fund, Inc. v. Chao, 394 F.Supp.2d 105, (D.D.C. 2005). Slip op. at (footnote omitted). The delay in processing the Employer s application, however, does not alter the fact that by the time the CO issued her NOF the company sponsoring labor certification was no longer in operation. The fact that the company s director would still like to sponsor the Alien for labor certification in some future business venture is not sufficient grounds for granting certification. If the director forms a new company, it might be able to file a new labor certification application under the criteria found in the new PERM regulations. The 2001 labor certification application, however, is no longer viable and must be denied. -4-

5 ORDER The Final Determination of the Certifying Officer denying labor certification is hereby AFFIRMED. Entered at the direction of the panel by: A Todd R. Smyth Secretary to the Board of Alien Labor Certification Appeals NOTICE OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Order will become the final decision of the Secretary unless within twenty 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 or maintain uniformity of Board decisions; or (2) when the proceeding involves a question of exceptional importance. Petitions for review 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 North Washington, D.C., Copies of the petition must also be accompanied by a written statement setting forth the date and manner of that service. The petition must specify the basis for requesting review by the full Board, with supporting authority, if any, and shall not exceed five double-spaced typed pages. Responses, if any, must be filed within ten days of service of the petition, and shall not exceed five double-spaced typewritten pages. Upon the granting of a petition the Board may order briefs. -5-