On May 14, 2015, the Board of Alien Labor Certification Appeals (“BALCA” or “the Board”) issued a decision affirming denials of certification filed by New York City Department of Education (“the Employer”) on behalf of three foreign workers as Special Education Teachers.
 

BACKGROUND

On June 2, 2011, the Employer filed the Application for Permanent Labor Certification for the position of “Students with Disabilities (Special Education) Teacher.” the CO sent the Employer an Audit Notification Letter requesting, among other documents, the Employer’s signed recruitment report on August 5, 2011.

On August 30, 2011, the Employer responded to the Audit Notification Letter and on February 9, 2012, the CO denied the Employer’s application for two reasons. First, the CO stated that the recruitment report did not provide an account of the actual number of applicants for the relevant position. Second, the CO concluded that that recruitment report was not signed pursuant to 20 C.F.R. § 656.17(g) (1).

The Employer submitted a Request for Reconsideration, or, in the alternative, Request for Review on March 5, 2012. The Employer stated that the recruitment report had, in fact, accounted for all applicants for the job opportunity. Regarding the second reason for denial, the Employer explained that there was a physically-signed copy of the recruitment report in existence at the time its application was filed and through administrative error, it was omitted in its audit materials. The Employer submitted with its motion for reconsideration, a copy of the physically-signed recruitment report, and affidavits and other evidence verifying the signed report was in existence at time the application was filed. The Employer argued that its omission was not material and therefore fundamental fairness required reversal. It alternatively argued that the regulations do not require a handwritten signature and the version of the recruitment report submitted on audit with the typed name of the Employer’s Deputy Executive Director satisfied the regulation.

The CO denied the Employer’s Request for Reconsideration on June 6, 2012. The CO accepted the Employer’s response regarding the number of applicants accounted for in the recruitment report but upheld the denial because the version of the recruitment report submitted on audit did not contain a valid, “original” signature.

The CO transferred the Appeal File to the Board of Alien Labor Certification Appeals (“BALCA” or “the Board”).

ISSUE

The issue before the Board is whether the Certifying Officer (“CO”) correctly denied labor certification on grounds that the Employer did not comply with 20 C.F.R. § 656.17(g)(1), which states that "the employer must prepare a recruitment report signed by the employer or the employer’s representative".

The Board cited the rule regarding the recruitment report requirements as governed by 20 C.F.R. § 656.17(g) (1):

The employer must prepare a recruitment report signed by the employer or the employer’s representative noted in Sec. 656.10(b) (2)(ii) describing the recruitment steps undertaken and the results achieved, the number of hires, and, if applicable, the number of U.S. workers rejected, categorized by the lawful job related reasons for such rejections.

The Board states that while 20 C.F.R. § 656.17(g) (1) does not distinguish between handwritten and electronic signatures; there is no indication that the typed name on the recruitment report was intended to be a signature. The Board agrees that there is indeed no indication that recruitment reports, even those delivered by mail, require original signatures. Nevertheless, the Board concludes that the typed name of the Executive Deputy Director does not constitute a valid signature and that there is no signature of any kind—original or otherwise—on the recruitment report.

The Board rejects the Employer’s argument that it was only through administrative error that a physically-signed copy of the recruitment report was omitted from its Audit Response and that the physically-signed copy was included with the Employer’s Request for Reconsideration. The Board explains that the Employer cannot cure its failure to comply with the Audit Notification by submitting a different recruitment report with its Request for Reconsideration. The Board states that an employer may only submit new evidence with its motion for reconsideration if it did not have a prior opportunity to submit the evidence before the denial. Because it is undisputed that the Employer had the opportunity to submit the signed copy of the recruitment report with its audit response, the CO properly chose not to consider the evidence, and the Board cannot consider it on appeal.

The Board concludes that a signature on the recruitment report is a regulatory requirement contained in 20 C.F.R. § 656.17(g) (1) and that the Employer’s failure to supply a signed copy of the recruitment report in response to an audit notification is not immaterial, and accordingly, the CO’s denials of certification is affirmed.
 

COMMENTS

When a PERM case has been denied, the employer has the right to appeal the decision to BALCA. Recently, BALCA has been very active in its review of PERM cases. The PERM cases continue to face intense scrutiny, increased audits and denials by the Department of Labor (DOL). Recent decisions by BALCA like the case reported here highlight this trend and it is important for the employers and their attorneys to follow the guidance from BALCA decision about the PERM process, recruitment under the PERM regulations, and the required analysis of whether a U.S. worker is qualified for the posted position.