U.S. Department of Labor

Board of Alien Labor Certification Appeals

Issue Date: 02 April 2015
OALJ Case No.:
ETA Case No.:

2015-TLN-00039
H-400-14336-950222

In the Matter of:
FOUR CORNERS MASONRY, INC.,
Employer.
Certifying Officer:

Charlene G. Giles
Chicago National Processing Center

Appearances:
Lisa B. Rodriguez, Esq.
Nicholson Migliuri Rodriguez, PLLC
Twin Falls, Idaho
For the Employer
Vincent C. Costantino, Esq.
Department of Labor
Office of the Solicitor
Washington, D.C. 20210
For the Certifying Officer
Before:

Peter B. Silvain, Jr.
Administrative Law Judge

DECISION AND ORDER AFFIRMING DENIAL OF CERTIFICATION
This case is before the Board of Alien Labor Certification Appeals (“BALCA”) pursuant
to Four Corners Masonry, Inc.’s request for review of the Certifying Officer’s (“CO”) final
determination in the above-captioned H-2B temporary labor certification matter.1 The H-2B
1

All citations to 20 C.F.R. Part 655, Subpart A refer to the Final Rule published in the Federal Register on
December 19, 2008 (“2008 Rule”), 73 Fed. Reg. 78020. The Department of Labor (“DOL”) indefinitely delayed
implementation of the Final Rule published on February 21, 2012 (“2012 Rule”), 77 Fed. Reg. 10038, after the
United States District Court for the Northern District of Florida (“District Court”) issued a preliminary injunction
enjoining DOL from implementing or enforcing it. See 77 Fed. Reg. 28764 (May 16, 2012) (announcing the
continuing effectiveness of the 2008 Rule “until such time as further judicial or other action suspends or otherwise
nullifies the order in the Bayou II litigation”); Bayou Lawn & Landscape Services v. Solis, Case 3:12-cv-00183,
Order at 8 (N.D. Fla. Apr. 26, 2012) (issuing order temporarily enjoining DOL from implementing or enforcing the

 program permits employers to hire foreign workers to perform temporary, non-agricultural work
within the United States (“U.S.”) on a one-time, seasonal, peak load, or intermittent basis, as
defined by the Department of Homeland Security.2 Employers who seek to hire foreign workers
under this program must apply for and receive a “labor certification” from the U.S. Department
of Labor (“DOL” or “Department”).3 A CO in the Office of Foreign Labor Certification of the
Employment and Training Administration reviews applications for temporary labor
certification.4 If the CO denies certification, in whole or in part, the employer may seek
administrative review before BALCA.5
STATEMENT OF THE CASE
H-2B Application
Four Corners Masonry, Inc. (the “Employer”) specializes in stonemason, brickmason,
and other masonry work in Teton County, Wyoming. AF 50.6 On January 28, 2015, the
Employer filed an ETA Form 9142, Application for Temporary Employment Certification
(“Application”). AF 50-59. The Employer requested certification for eight “HelpersBrickmasons, Stonemasons”7 for the period of April 1, 2015 until November 30, 2015. AF 50.
Request for Further Information
On February 4, 2015, the CO sent the Employer a Request for Further Information
(“RFI”) after determining that the Employer failed to satisfy all of the requirements of the H-2B
program. AF 44-49. The CO explained there were three deficiencies in the Employer’s
Application, and notified the Employer that it had seven calendar days from the date of the RFI
to submit additional information and documentation to remedy the deficiencies. AF 44.
As to the Employer’s deficiencies, the CO first found that the Employer failed to submit a
complete and accurate recruitment report with its Application, as required by 20 C.F.R. §§
2012 Rule), affirmed by 713 F.3d 1080 (11th Cir. 2013). See also Bayou Lawn & Landscape Services v. Solis, Case
3:12-cv-00183 (N.D. Fla. Dec. 18, 2014) (vacating the 2012 Rule and permanently enjoining DOL from enforcing
it). On March 4, 2015, the District Court also vacated the DOL’s 2008 H-2B regulations, and permanently enjoined
the DOL from enforcing them. See Perez v. Perez, No. 14-cv-682 (N.D.Fla. Mar. 4, 2015) (2015 U.S. Dist. LEXIS
27606). On March 12, 2015, the Certifying Officer requested that further proceedings be suspended indefinitely. On
March 13, 2015, Administrative Law Judge Stephen R. Henley, the Acting Chair of BALCA, put all pending H-2B
temporary labor certification matters in abeyance until further notice while the DOL considered its options in light
of the District Court’s decision in Perez v. Perez. On March 19, 2015, the Certifying Officer filed a status report
with BALCA, stating that the District Court granted the Secretary of Labor’s motion requesting a stay of the District
Court’s injunction order until and including April 15, 2015. On March 20, 2015, Judge Henley issued an order
lifting the stay in all pending H-2B temporary labor certification matters, including the above-captioned matter. The
March 20, 2015 order noted that although the above-captioned matter was not listed in the March 13, 2015 order
staying administrative proceedings, it is nonetheless an H-2B matter subject to the Perez v. Perez injunction.
2
See 8 U.S.C. § 1101(a)(15)(H)(ii)(b); 8 C.F.R. § 214.2(h)(6); 20 C.F.R. § 655.6(b).
3
8 C.F.R. §214.2(h)(6)(iii).
4
20 C.F.R. §655.23.
5
20 C.F.R. §655.33(a).
6
In this Decision and Order, “AF” refers to the Appeal File.
7
SOC (O*Net/OES) occupation title “Helpers--Brickmasons, Blockmasons, Stonemasons, and Tile and Marble
Setters,” occupation code 47-3011.

2

 655.20(a) and 655.15(j). AF 46. Specifically, the CO determined the Employer’s recruitment
report did not accurately identify each recruitment source by name. Id. The CO also requested
that the Employer amend its Application to reflect the correct start date of the Wyoming State
Workforce Agency job order (“Job Order”). Id.
Second, the CO determined the Employer failed to submit a complete and accurate
Application, as required by 20 C.F.R. § 655.20(a). AF 47-48. The CO informed the Employer
that various sections of its Application were incomplete. AF 47. The CO also noted that it was
unable to determine if the Employer’s three-month experience requirement was consistent with
the newspaper print advertisements and Job Order. Id. Furthermore, the CO notified the
Employer that its attorney failed to provide a signed and dated copy of Appendix B to ETA Form
9142. AF 47-48.
Third, the CO determined the Employer did not comply with the pre-filing recruitment
requirements described in 20 C.F.R. §§ 655.15(e)(2) and 655.15(f)(3), which mandate that the
job order and newspaper advertisements satisfy the requirements specified at 20 C.F.R. § 655.17.
AF 48-49. The CO explained it was unable to determine if the Employer apprised job applicants
of the correct experience requirements. AF 48. In order to verify that the Employer complied
with the pre-filing recruitment requirements, the CO requested that the Employer submit a copy
of the Job Order and copies of all published newspaper advertisements. AF 48-49. The CO
further advised that, in accordance with 20 C.F.R. § 655.15(a), all recruitment, including the Job
Order and newspaper advertisements, must have been published prior to the date the Employer
filed its Application, which was January 28, 2015. AF 49.
Employer’s Response
On February 10, 2015, the Employer responded to the CO’s RFI via facsimile. AF 24-43.
The Employer included the following information in its response:
(1) a copy of the RFI, which the CO issued on February 4, 2015;
(2) a statement from the Employer clarifying that it prefers to hire individuals with three
months of experience in masonry, but does not require such experience;
(3) permission from the Employer to amend various sections of its Application;
(4) an invoice from the Jackson Hole Daily newspaper, including the text that was published
in the print advertisements on January 2, 2015 and January 3, 2015;
(5) copies of the print advertisements published in the Jackson Hole Daily and Post
Register;8
(6) a copy of Job Order number 2573670; and
(7) a signed and dated copy of Appendix B to ETA Form 9142.
AF 24-43.

8

Although the Employer submitted the advertisements published in the Idaho Falls Post Register, I find the text of
the advertisements unreadable. AF 35-36. Thus, I have not considered them.

3

 Final Determination
On February 27, 2015, the CO issued a Final Determination denying the Employer’s
Application on the basis that the Employer failed to establish that: (1) insufficient qualified U.S.
workers are available and capable of performing the job opportunity for which the Employer is
seeking temporary labor certification; and/or (2) employing H-2B workers will not adversely
affect the wages and working conditions of U.S. workers similarly employed. AF 19-23. The CO
explained that the Employer cured the first two deficiencies outlined in the RFI. AF 21.
However, the CO determined the Employer failed to meet certain pre-filing recruitment
requirements. AF 22. Specifically, the CO noted the Job Order included two application
requirements that the Employer did not list in either its print advertisements or its Application.
AF 23. Furthermore, the CO clarified that it views the Employer’s “preference” for three months
of work experience as a “requirement.” Id. Thus, because the Employer failed to fulfill all of the
pre-filing recruitment requirements, the CO denied the Employer’s Application. AF 19-23.
Employer’s Appeal
On March 4 2015,9 the Employer requested administrative review of the CO’s Final
Determination (“Employer’s Appeal”), as permitted by 20 C.F.R. § 655.33.10 AF 1-18. In its
appeal, the Employer summarized its position and attached the documents it submitted to the CO
in response to the RFI. On March 24, 2015, BALCA received the Appeal File from the CO. On
March 25, 2015, I issued a Notice of Docketing and Expedited Briefing Schedule permitting the
Employer and Solicitor to file briefs within five business days of receiving the Appeal File. The
Solicitor filed a Statement of Position on behalf of the CO on April 1, 2015, urging BALCA to
affirm the CO’s decision to deny certification. The Employer did not file a brief.
DISCUSSION AND APPLICABLE LAW
BALCA’s standard of review in H-2B cases is limited. Specifically, 20 C.F.R. § 655.33
provides that BALCA may only consider the appeal file prepared by the CO, the legal briefs
submitted by the parties, and the Employer’s request for administrative review, which may only
contain legal arguments and evidence that was actually submitted to the CO in support of the
Employer’s Application. After considering the evidence of record, BALCA must: (1) affirm the
CO’s decision to deny temporary labor certification; (2) direct the CO to grant certification; or
(3) remand the case to the CO for further action.11

9

The Employer mailed its request for administrative review on March 4, 2015; BALCA received it on March 17,
2015.
10
Under 20 C.F.R. § 655.33, within ten (10) calendar days of the CO’s adverse determination, an employer may
request that BALCA review the CO’s denial. Within five (5) business days of receipt of the employer’s appeal, the
CO shall assemble and submit to BALCA an administrative appeal file. Within five (5) business days of receipt of
the appeal file, counsel for the CO may submit a brief in support of the CO’s decision. The Chief Administrative
Law Judge may designate a single member or the three member panel of BALCA to consider the case. BALCA
must notify the employer, CO, and counsel for the CO of its decision within five (5) business days of the submission
of the CO’s brief, or ten (10) days after receipt of the appeal file, whichever is earlier, using means that ensure same
day or overnight delivery.
11
20 C.F.R. § 655.33(e).

4

 The Employer bears the ultimate burden of proving that it is entitled to labor
certification.12 The CO may only grant the Employer’s Application to admit H-2B workers for
temporary nonagricultural employment if the Employer has demonstrated that: (1) insufficient
qualified U.S. workers are available for the job opportunity for which it is seeking certification;
and (2) employing H-2B workers will not adversely affect the benefits, wages, and working
conditions of similarly employed U.S. workers.13
Failure to Follow Pre-Filing Recruitment Requirements
The Employer must satisfy specific pre-filing recruitment procedures before filing an
Application. Specifically, the regulations at 20 C.F.R. § 655.15(e)(2)14 and § 655.15(f)(3)15
mandate that the Employer’s job order and newspaper advertisements meet the requirements
specified in 20 C.F.R. § 655.17.16 Recruitment requirements are “designed to reflect what the
Department has determined, based on program experience, are most appropriate to test the labor
market.”17
In explaining its reasons for denying certification, the CO explained that the job
requirements the Employer listed in the Job Order and newspaper advertisements were
inconsistent with those listed in the Employer’s Application. AF 23. The CO emphasized that the
Employer’s Job Order stated applicants were required to have an operator driver’s license and
undergo a drug test/screening, but the Employer did not list those requirements in its Jackson
12

See Cajun Constructors, Inc., 2011-TLN-00004, slip op. at 7 (Jan. 10, 2011); Andy and Ed. Inc., d/b/a Great
Chow, 2014-TLN-00040, slip op. at 2 (Sept. 10, 2014); Eagle Industrial Professional Services, 2009-TLN-00073,
slip op. at 5 (July 28, 2009).
13
20 C.F.R. § 655.32(b).
14
20 C.F.R. § 655.15(e)(2) provides: “The job order submitted by the employer to the SWA must satisfy all the
requirements for newspaper advertisements contained in § 655.17.”
15
20 C.F.R. § 655.15(f)(3) provides: “The newspaper advertisements must satisfy the requirements contained in §
655.17. The employer must maintain copies of newspaper pages (with date of publication and full copy of
advertisement), or tear sheets of the pages of the publication in which the advertisements appeared, or other proof of
publication containing the text of the printed advertisements and the dates of publication furnished by the
newspaper.
16
20 C.F.R. § 655.17 provides: “All advertising conducted to satisfy the required recruitment steps under § 655.15
before filing the Application for Temporary Employment Certification must meet the requirements set forth in this
section and must contain terms and conditions of employment which are not less favorable than those to be offered
to the H-2B workers. All advertising must contain the following information: (a) The employer's name and
appropriate contact information for applicants to send résumés directly to the employer; (b) The geographic area of
employment with enough specificity to apprise applicants of any travel requirements and where applicants will
likely have to reside to perform the services or labor; (c) If transportation to the worksite(s) will be provided by the
employer, the advertising must say so; (d) A description of the job opportunity (including the job duties) for which
labor certification is sought with sufficient detail to apprise applicants of services or labor to be performed and the
duration of the job opportunity; (e) The job opportunity’s minimum education and experience requirements and
whether or not on-the-job training will be available; (f) The work hours and days, expected start and end dates of
employment, and whether or not overtime will be available; (g) The wage offer, or in the event that there are
multiple wage offers, the range of applicable 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; and (h) That the position is temporary and the total number of job
openings the employer intends to fill.”
17
See 73 Fed. Reg. 78,020, 78,031 (Dec. 19, 2008). See also Chateau on the Lake, 2010-TLN-00062 (June 11,
2010).

5

 Daily News advertisement, Post Register advertisement, or Application. Id. In its statement of
position, the Solicitor argued, “[b]y omitting one of the advertising components, the Employer
did not conduct a proper test of the labor market to determine if labor certification was
required.”18
Upon a complete review of the record, I agree with the CO’s finding that the minimum
job requirements contained in the Job Order are inconsistent with the Employer’s Application
and the text of the Employer’s job advertisements. The regulations at 20 C.F.R. §§ 655.15 (e)(2)
and 655.15(f)(3) provide that the job order and the newspaper advertisements must satisfy the
requirements contained in 20 C.F.R. § 655.17, which specifies that all advertising must contain
terms and conditions of employment that are not less favorable than those to be offered to the H2B workers.19 In this case, the Employer’s Job Order specifically listed “Drug
Testing/Screening” and “Operator License” as job requirements. AF 37. Thus, a potential
applicant reading the Job Order could reasonably conclude that undergoing a drug screening and
having an operator driver’s license are prerequisites to being considered for the Employer’s job
opportunity.
In its request for administrative review, the Employer alleged it “requires any foreign
citizens who may apply to pass a drug test and have a driver’s license and so these requirements
are the same of U.S. applicants.” (Employer’s Appeal at 2). In contrast to the Employer’s
assertion, the record demonstrates that neither the Employer’s Application nor the newspaper
advertisements specified that applicants needed to pass a drug test or have an operator driver’s
license. Specifically, the advertisements published in the Jackson Hole Daily on January 2, 2015
and January 3, 2015 did not mention anything pertaining to a drug screening, drug testing, or
driver’s license. AF 33. Similarly, in its Application, the Employer did not list drug testing and a
driver’s license as minimum job requirements. AF 53. In defense of its failure to include these
two job requirements in its Application, the Employer argued that the ETA Form 9142 “does not
request this information.” (Employer’s Appeal at 2). Nevertheless, I find that the Employer could
have listed the two additional job requirements in section F.b.5. of its Application, entitled,
“Special Requirements – List specific skills, licenses/certifications, and requirements of the job
opportunity.” AF 53.
In sum, I find that requiring each applicant to have an operator driver’s license and
undergo drug testing and/or screening is more stringent than the job requirements that would be
advertised to H-2B workers, as evidenced by the Employer’s Application. These two additional
hiring requirements could have limited the number of U.S. workers eligible for the Employer’s
job opportunity. That the Employer did not include these hiring requirements in its newspaper
advertisements does not assist it, as the requirements were included in the Job Order and,
therefore, they could have discouraged U.S. applicants who may have been otherwise eligible to
apply.

18

CO’s Statement of Positon at 3 (quoting Freemont Forest Systems, Inc., 2010-TLN-00038 (March 11, 2010)). See
also Quality Construction & Production LLC, 2009-TLN-00077 (August 31, 2009); Metompkin Bay Oyster Co.,
Inc., 2009-TLN-00100 (October 9, 2009); East Bernstadt Cooperage Inc., 2010-TLN-00004 (October 30, 2009).
19
See 20 C.F.R. § 655.17 (emphasis added).

6

 Also at issue in this appeal is the Employer’s preference to hire individuals with three
months of experience in masonry. In its Final Determination, the CO clarified that although the
Employer listed three months of experience as a preference, and not a requirement, “the
Department views an employer’s preference as a requirement.” AF 23.
In its Application, the Employer initially specified it was seeking individuals with three
months of employment experience. AF 53. However, in its response to the RFI, the Employer
gave the CO permission to amend its Application to reflect that it does not require applicants to
have any experience. AF 31-32. Notwithstanding the correction to its Application, in the
advertisement published in the Jackson Hole Daily on January 2, 2015 and January 3, 2015, the
Employer stated it “prefer[s] 3 months experience in masonry.” AF 33. Similarly, in its Job
Order, the Employer stated it “[p]refer[s] 3 months experience in masonry,” but listed “0” next to
“Months of Experience” required for the job. AF 37. Consistent with the CO’s position, BALCA
has interpreted employer preferences as job requirements.20 I find that the Employer’s preference
for workers with three months of experience in masonry, as listed in the newspaper
advertisements and Job Order, reasonably could have excluded eligible U.S. workers who did not
have any experience.
In conclusion, I find that the Employer has failed to satisfy all of the pre-filing
recruitment requirements contained in 20 C.F.R. §§ 655.15(e)(2) and 655.15(f)(3), which require
the job order and newspaper advertisements to satisfy the requirements specified at 20 C.F.R. §
655.17.
ORDER
In light of the foregoing, it is hereby ORDERED that the Certifying Officer’s decision
denying certification be, and hereby is, AFFIRMED.

For the Board:
Digitally signed by PETER SILVAIN JR.
DN: CN=PETER SILVAIN JR.,
OU=ADMINISTRATIVE LAW JUDGE,
O=Office of Administrative Law Judges,
L=Cincinnati, S=OH, C=US
Location: Cincinnati OH

PETER B. SILVAIN, JR.
Administrative Law Judge

20

See Sodette Simeonidis, 2013-TLN-00055 (July 2, 2013). See also Golden Construction Services, Inc., 2013TLN-00030 (Feb. 26, 2013).

7