U.S. Department of Labor

Board of Alien Labor Certification Appeals
800 K Street, NW, Suite 400-N
Washington, DC 20001-8002
(202) 693-7300
(202) 693-7365 (FAX)

Issue Date: 29 April 2011
BALCA Case No.:

2011-TLN-00017

ETA Case No.:

C-11031-53708

In the Matter of:

MICHELLE PEREZ,
Employer
Certifying Officer:

William L. Carlson
Chicago National Processing Center

Appearances:

William J. Sanchez, Esquire
Miami, Florida
For the Employer
Gary M. Buff, Associate Solicitor
Matthew Bernt, Attorney
Office of the Solicitor
Division of Employment and Training Legal Services
Washington, DC
For the Certifying Officer

Before:

WILLIAM S. COLWELL
Associate Chief Administrative Law Judge

DECISION AND ORDER
AFFIRMING DENIAL OF CERTIFICATION
This case arises from a request for review of a United States Department of Labor Certifying
Officer’s (“the CO”) denial of an application for temporary alien labor certification under the H–2B
non-immigrant program. The H-2B program permits employers to hire foreign workers to perform
temporary nonagricultural work within the United States on a one-time occurrence, seasonal, peakload,

 or intermittent basis, as defined by the Department of Homeland Security.

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).

STATEMENT OF THE CASE
On January 28, 2011, the Department of Labor’s Employment and Training Administration
(“ETA”) received an application for temporary labor certification from Michelle Perez (“the
Employer”). AF 206-216.1 The Employer requested certification on an intermittent or other temporary
need basis for an elderly health aid from February 1, 2011 to February 1, 2012 at a wage of $9.50 per
hour. AF 206, 210. In describing the temporary need for the home health aide, the Employer stated:
My Father is elderly and sick, and has recently undergone surgery. Many of the things
that he used to do by himself, he can no longer do. I need someone who can cook for him
while observing a strict dietary menu appropriate for individuals with diabetes,
administer medications, maintain his daily hygiene including bathing, washing and
ironing clothing, cleaning his room and bathroom, and dressing him, and observing
patient while assisting him through his recovery. His recovery should be about 12
months as estimated by his physician.
AF 206. The Employer listed the minimum job requirements as a high school diploma or a GED and 12
months of experience within the occupation of elderly care. AF 209. Additionally, the Employer
required experience cooking diabetic foods and noted that knowledge of the Tagalog language is
preferable. Id. The Employer also provided the following description of the job duties to be performed:
Prepare and cook three meals per day which consist of breakfast, lunch, and dinner for an
elderly individual who just had surgery. Observe strict dietary menu. Abide by the
nutritional standards for elderly residents, such as low salt, low sugar, and fully balanced
proportional menu per meal. Knowledge in the nutritional value of each food group in
order to serve patients according to their specific dietary needs that they maintain a
healthy diet. Familiarity in the cooking and preparation of meals for diabetic patients.
Request food supplies, kitchen equipment, and appliances, based on estimates of future
needs. Maintain a clean and orderly kitchen. Observe and monitor patient. Interact with
patient by reading to or talking with him. Administer prescribed oral medications under
written direction of a physician or as directed by a home care nurse. Dresses patient and
assists them to bathe and all other aspects of hygiene. Clean the bathroom, including tub
and surrounding areas. Takes patient on walks or other physical activities to help with
rehabilitation of patient after surgery. Washes and irons clothing. Keep patient’s
quarters clean and tidy. At times may clean other parts of the home.

1

Citations to the 216-page appeal file will be abbreviated “AF” followed by the page number.

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 AF 208. With its application, the Employer included a recruitment report, showing that there had been
29 applicants for this position. AF 214. The Employer also included a letter identifying the foreign
worker that it seeks to hire for the position. AF 216.
On February 4, 2011, the CO issued a Request for Further Information (“RFI”), notifying the
Employer that it was unable to render a final determination for the Employer’s application because the
Employer failed to satisfy all the requirements of the H-2B program. AF 200-205. Among the five
deficiencies identified in the RFI, the CO found that the Employer did not submit a complete and
accurate recruitment report. AF 204. Specifically, the CO found that the Employer failed to explain the
lawful job-related reasons for not hiring three U.S. applicants who applied or were referred to the
position. Id. The CO noted that the Employer’s stated reason for rejecting these three U.S. applicants
was that they were not willing to travel or perform duties in regard to travel, but that the Employer never
included any travel requirements on the application. Id. Additionally, the CO found that the Employer
rejected 15 applicants for “not possessing skills necessary to perform duties required,” but the Employer
failed to identify the specific skills that the applicants were lacking. Id. Finally, the CO also noted that
the Employer failed to sign and date the recruitment report. Id. The CO requested the Employer to
provide a recruitment report complying with the regulatory requirements and to explain in detail, the job
related reasons for not hiring the workers. AF 204-205.
The Employer responded to the RFI on February 15, 2011 and submitted the requested
documentation. AF 32-100. The Employer submitted a revised recruitment report that was signed and
dated. AF 60. The Employer stated that three U.S. applicants were not hired because they are not
willing to travel, and that traveling is necessary in order to obtain supplies needed to provide services.
AF 61-66. One of these applicants lives 15.1 miles from the worksite, one lives 10.9 miles from the
worksite, and one lives 11.8 miles from the worksite. AF 62, 65, 68. The Employer also noted that one
of the applicants does not own a motor vehicle, and therefore will be unable to travel. AF 67. The
Employer did not provide a summary of the skills that each of these three U.S. applicants possessed. AF
60-69.
For the remaining applicants, the Employer stated that these applicants lacked some of the skills
required for the position, and directed the CO’s attention to the Florida State Workforce Agency
(“SWA”) printout of each of the applicant’s job skills, as compared to the 24 required skills for the
position. AF 70-167. The 24 skills identified include the following:

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 [A]dminister enemas, irrigations, or douches to patients; administer medications or
treatments; assist patient in walking or exercising; assist patient with dressing,
undressing, grooming, or bathing; change linen; clean rooms or work areas; collect
specimens from patients; cook meals; entertain patients; feed patients; instruct patients in
methods to improve functional activities; lift or transport ill or injured patients; maintain
dental or medical records; observe patient condition; position patient for therapy; prepare
patients for tests, therapy, or treatments; provide in home patient care; purchase food or
beverages; purchase housekeeping or cleaning supplies or equipment; set up patient care
equipment; take vital signs; use massage therapy procedures; weigh patients; work with
persons with mental disabilities or illnesses.
AF 71-72. The Employer rejected two applicants because their “experience in the medical field
is different than that required for the position” and because they have performed duties more related to
medical support than that of a home health aide. AF 112-115. Two other U.S. applicants who submitted
resumes to the Employer were rejected because they did not have any experience in preparing diabetic
foods. AF 116-119. It is unclear whether the Employer contacted either of these two applicants.
The Employer rejected two U.S. applicants because their desired salary was $12.00 per hour. AF
140-144, 159-163.

One of these U.S. applicants possesses 19 of the 24 skills identified by the

Employer, and the other possesses 20 of the 24 skills identified. AF 143-144, 162-163. It is unclear
whether the Employer contacted either of these applicants to inquire whether they were interested in the
position at the offered wage of $9.50 per hour. The Employer rejected three U.S. applicants were
contacted by the Employer on November 24, 2010, but never returned the Employer’s phone call. AF
125, 137, 164.
The CO denied certification on March 22, 2011. AF 26-31. The CO determined that the
Employer failed to submit a complete and accurate recruitment report in violation of the H-2B pre-filing
requirements. AF 28. The CO noted that Employer rejected four U.S. workers based on their desired
wage or occupation, but the Employer’s recruitment report did not indicate whether the Employer
contacted these workers to determine if they were interested in the position. AF 30. Additionally, the
CO found that two workers sought an hourly wage higher than $9.50 per hour, but the Employer’s
recruitment report does not indicate if the Employer contacted these applicants to determine if they were
interested in the offered wage.

Id. The CO identified nine workers that do possess health care

experience, undermining the Employer’s assertion that these candidates do not have the skills to perform
the duties required of the position. Id. The Employer’s reason for rejecting two of these applicants was
that they did not have experience in preparing diabetic food. However, the CO pointed out that the
Employer failed to explain how it made this determination, or even whether it contacted these two

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 applicants. Id. Finally, the CO found that the Employer’s rejection of three other U.S. applicants on the
basis of their unwillingness to travel or failure to own a vehicle was unlawful, because the Employer did
not indicate on its application that travel is a requirement for the position. Id. The CO determined that
the Employer unlawfully rejected eighteen U.S. workers. AF 31.
On April 1, 2011, the Employer appealed the denial, arguing that its prevailing wage request and
its advertisements indicate that travel is a requirement, and that the Employer did not include this
information on the ETA Form 9142 because it was deemed redundant. AF 1-2. Additionally, the
Employer argued that there was no need for it to contact individuals that did not possess the skills listed
in the job order or the applicants who requested a higher wage or were looking for a position in a
different occupation. AF 2.

DISCUSSION
The CO may only grant an employer’s petition to admit nonimmigrant workers on H-2B visas
for temporary nonagricultural employment in the U.S. if there are not sufficient U.S. workers available
who are capable of performing the temporary services or labor at the time the employer files its petition.
20 C.F.R. § 655.5(a)(1). Accordingly, an employer must recruit U.S. workers in good faith. See Final
Rule, Labor Certification Process and Enforcement for Temporary Employment in Occupations Other
Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical
Changes, 73 Fed. Reg. 78030, 78036 (Dec. 19, 2008). In order to ensure good faith recruitment of U.S.
workers, an employer must submit a copy of its recruitment report with its application. 20 C.F.R. §
655.20(a). The H-2B regulations at 20 C.F.R. § 655.15(j)(2) provide that the recruitment report must:
(i) Identify each recruitment source by name;
(ii) State the name and contact information of each U.S. worker who applied or was
referred to the job opportunity up to the date of the preparation of the recruitment
report, and the disposition of each worker, including any applicable laid-off
workers;
(iii)If applicable, explain the lawful job-related reason(s) for not hiring any U.S.
workers who applied or were referred to the position.
The revised recruitment report that the Employer submitted to the CO with its RFI response
demonstrates that 29 U.S. workers were rejected by the Employer. Several U.S. workers had experience
in the health care field or as a home care worker. Two U.S. workers possessed 19 or 20 of the 24 skills
identified in the job order, but were rejected because they had indicated to the Florida SWA that they

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 desired a higher wage than the one offered by the Employer. 2 There is no indication that the Employer
contacted or interviewed either of these applicants. Additionally, two other U.S. workers were rejected
based on the Employer’s assumption that they had no experience cooking diabetic food. It appears,
however, that the Employer made this determination based solely on the face of the applicants’ resumes,
and never contacted either of these applicants to determine whether they had experience cooking
diabetic food.
The Employer’s argument that it does not have a responsibility to contact U.S. workers who are
qualified for the position but seek a higher wage is antithetical to an employer’s duty to recruit U.S.
workers in good faith. The duty to recruit in good faith necessitates that the Employer contact all
potentially qualified applicants to determine whether they possess the minimum requirements for the job
and if they are interested in the job at the wage offered. In this case, the Employer presumed that several
potentially qualified applicants were either not interested in the position or lacked certain skills without
making any effort to verify these presumptions.

As the Employer did not contact any of these

potentially qualified U.S. workers, the Employer has failed to establish a lawful job-related reason for
not hiring any of these U.S. applicants.
Accordingly, the CO properly denied certification.

ORDER
In light of the foregoing, it is hereby ORDERED that the Certifying Officer’s decision is
AFFIRMED.
For the Board:

A
WILLIAM S. COLWELL
Associate Chief Administrative Law Judge

2

I note that some of the “required skills” listed in the Employer’s job order with the SWA do not match the job
duties listed on the Employer’s application, raising the issue of whether the Employer is offering terms of
employment less favorable than those offered to the H-2B worker in violation of 20 C.F.R. § 655.22(a).

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