U.S. Department of Labor

Office of Administrative Law Judges
90 Seventh Street, Suite 4-800
San Francisco, CA 94103-1516
(415) 625-2200
(415) 625-2201 (FAX)

I SSUE D ATE : 05 J UNE 2015
BALCA C ASE N O : 2015-TLN-00052
ETA C ASE N O : H-400-15110-86090524

In the matter of:
PELICAN LAKES, INC.
D ecision and Order Affirming Denial
Pelican Lakes LLC (Pelican) objects to the Certifying
Officer’s denial of a temporary alien labor certification application
it made under the H–2B visa program. This proceeding at the
Board of Alien Labor Certification Appeals (BALCA) reviews the
Certifying Officer’s action; 1 a judge may affirm a denial; direct
the Certifying Officer to grant the application; or remand the
matter for more action.2 Pelican requested an administrative
review of the Final Denial3 the Certifying officer entered on May
26, 2105. The evidence in a review is limited to the record made
before the Certifying Officer. Pelican advised my assistant that its
Request for Administrative Review dated May 27, 2015 was its
final position on this matter and that it was not going to retain
counsel to represent it or file anything more in this appeal.
The Certifying Officer denied the application for four
categories of shortcomings, some of which involved sub-parts. The
Certifying Officer’s decision that Pelican failed to satisfy its duty
to recruit U.S. workers for the job before turning to aliens as
temporary employees, and to do so before it filed its application, is
indisputably shown in the record. The job advertisement it
published omitted some of the minimum information the H–2B
program regulations require. The application therefore failed to
demonstrate that no qualified U.S. worker was capable of
performing Pelican’s work. That alone is grounds to deny the
1

Admin. R. P41–50; 20 C.F.R. § 655.33(a) (authorizing review).

2

20 C.F.R. § 655.33(e).

3

Admin. R. at P41.

 application. There is no need to reach the other deficiencies the
Certifying Officer listed. Pelican should not assume because I do
not address them, that I believe the Certifying Officer was wrong
about those matters.
Pelican operates in several divisions. It operates a golf
course, a sports bar, a wedding/event facility, and maintains the
landscape of a residential facility near the City of Windsor in
northern Colorado. The property either abuts or encompasses a
private lake.
Pelican seeks by this application to bring one worker
temporarily to the United States as a nonimmigrant from May 15,
2015 to October 9, 2015. The person would perform a full time job
created through an amalgam of unrelated maritime and nonmaritime duties. The employee will serve as the ship’s engineer
and backup captain for a houseboat of undisclosed size, said to
accommodate 40 people; at some places in the application papers
Pelican refers to it as yacht. The employee would maintain the
vessel’s engines and systems and sometimes operate the boat on a
single lake. This would take about 30% of work hours.4 The
employee also serve as a “Property Caretaker/Landscaper” who
would do landscaping on golf and community areas, as well as on
private property, for the other 70% of the time.5 Both aspects of
the job are characterized as seasonal. The boat at Pelican’s
recreational facility operates from May to October intermittently,
for wedding parties, fundraising, and corporate events. No
landscaping is done from mid- October to early May due to icy
weather and snowfalls that average 59 inches annually; winter
weather precludes golf, use of its swimming pool and of the lake.
The administrative record shows that the advertisement of
the job opening to potential workers in the United States failed to
include information the H–2B program regulations demand. The
applicant is obligated to show that the advertisements it made to
find a U.S. worker contain no less than that information.
The Secretary’s regulations at 20 C.F.R. §655.17(f), state
that the text of “all advertising” Pelican relies on as efforts to
recruit U.S. workers for the job opportunity “must contain” the
work hours and days, expected start and end dates of
employment, and whether or not overtime will be available.” The
newspaper ad it submitted also ran afoul of requirement that “all
advertising must contain the wage offer, or in the event that
4

Admin. R. at P23.

5 Admin. R. at P23. See also P29 at ¶ 7: “The employer’s job duties represent
a combination of the occupation in item F.3 and 37-3011 - Landscaping and
Groundskeeping Workers.”

-2-

 there are multiple wage offers, each of which must not be less
than the highest of the prevailing wage, the Federal minimum
wage, state minimum wage, or local minimum wage applicable
throughout the duration of the certified H-2B employment.” 20
C.F.R. §655.17(g). The employer failed to overcome this deficiency
when the Certifying Officer brought it to Pelican’s attention. The
tear sheet Pelican offered in the application for the ad it ran in a
local newspaper known as “The Tribune” includes none of this
information.6 Job order 6104903 Pelican placed with the State of
Colorado’s Department of Labor & Employment on March 24,
2015 gave no start date.7
Order
These deficiencies leave the application wanting. 8 The Certifying
Officer’s denial is correct, and affirmed.
Digitally signed by William Dorsey
DN: CN=William Dorsey,
OU=Administrative Law Judge, O=US
DOL Office of Administrative Law
Judges, L=San Francisco, S=CA, C=US
Location: San Francisco CA

William Dorsey
Administrative Law Judge

The ad, which ran on more than one day, is found at Admin. R. P36, P37,
& P38.
6

7

Admin. R. at P34, P59.

8

Admin. R. P66–72.

-3-