U.S. Department of Labor

Office of Administrative Law Judges
800 K Street, NW, Suite 400-N
Washington, DC 20001-8002
(202) 693-7300
(202) 693-7365 (FAX)

Issue Date: 05 April 2011

OALJ Case No.:

2011-TLC-00337

ETA Case No.:

C-11060-28222

In the Matter of
SOUTHWEST AGRICULTURAL,
Employer

Certifying Officer:

William L. Carlson
Chicago Processing Center

Before:

PAUL C. JOHNSON, JR.
Administrative Law Judge

DECISION AND ORDER
AFFIRMING DENIAL OF CERTIFICATION
On March 21, 2011, Southwest Agricultural (“the Employer”) filed a request for review
of the Certifying Officer’s determination in the above-captioned temporary agricultural labor
certification matter. See 8 U.S.C. §§ 1101(a)(15)(H)(ii)(a), 1184(c)(1); 20 C.F.R. § 655.115(a)
(2009).

On March 29, 2011, the Office of Administrative Law Judges received the

Administrative File from the Certifying Officer (“the CO”). In administrative review cases, the
administrative law judge has five working days after receiving the file to “review the record for
legal sufficiency” and issue a decision. § 655.115(a).

 Statement of the Case
On March 1, 2011, the United States Department of Labor’s Employment and Training
Administration (“ETA”) received an application from the Employer for temporary labor
certification for two Agricultural Equipment Operators. AF 65-84.1 For its minimum job
requirements, the Employer indicated that it required “3 mos with reference.” AF 68.
On March 17, 2011, the CO denied certification, finding that the Employer’s previous
application “did not indicate any reference requirements,” and therefore, the Employer did not
comply with the requirement at 20 C.F.R. § 655.122(a) and 655.152. AF 7-9.
On March 21, 2011, the Employer appealed the denial, asserting that on ETA Form 9142,
page 3, F(b)(4a), which asks if experience is required, it clearly indicated “3 mos with
references.” AF 1. In the Solicitor’s appeal brief, he clarifies that the Employer’s application
indicated that applicants must possess three months of experience and one reference while its
newspaper advertisements state that applicants must possess three months of experience and
provide two references.

Discussion
The H-2A regulations at 20 C.F.R. § 655.122(a) provide that “[t]he employer’s job offer
must offer to U.S. workers no less than the same benefits, wages and working conditions that the
employer is offering, intends to offer, or will provide to H-2A workers.” Additionally, 20 C.F.R.
§ 655.152 states “[a]ll advertising conducted to satisfy the required recruitment activities under
655.151 must meet the requirements set forth in this section and must contain terms and
conditions of employment which are not less favorable than those offered to the H-2A workers.”
In this case, the Employer’s newspaper advertisements indicate that the applicant must
possess three months of experience with two references, whereas the Employer’s application
indicates that the applicant must possess three months “with reference.”

The Employer’s

singular use of the word “reference” on its ETA Form 9142 indicates that foreign workers are
only required to submit one reference. The Employer’s newspaper advertisement requires U.S.
workers to submit one more reference than that listed on its temporary labor application, and

1

Citations to the Administrative File will be abbreviated “AF” followed by the page number.

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 therefore contains terms less favorable than those offered to the H-2A workers. Accordingly, the
newspaper advertisement is in violation of the regulations, and the CO properly denied
certification.

Order
In light of the foregoing, it is hereby ORDERED that the Certifying Officer’s decision is
AFFIRMED.

A
Paul C. Johnson, Jr.
Administrative Law Judge

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