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: 26 January 2009

BALCA Case No.:
ETA Case No.:

2009-PER-00001
A-06170-29726

In the Matter of

TRUMP BRIARCLIFF MANOR DEVELOPMENT LLC,
Employer,
on behalf of

ASISCLO FIDELINO LOPEZ-PEREZ,
Alien.
Certifying Officer:

William Carlson
Atlanta Processing Center

Appearances:

Victor M. Pizarro, Esquire
Mision Hispana
Long Island City, New York
For the Employer and the Alien
Lisa Bello
Payroll Coordinator
For the Employer1
Gary M. Buff, Associate Solicitor
Vincent C. Costantino, Senior Trial Attorney
Office of the Solicitor
Division of Employment and Training Legal Services
Washington, DC
For the Certifying Officer

Before:

1

Chapman, Vittone and Wood
Administrative Law Judges

Mr. Pizarro filed the Employer’s motion for reconsideration. (AF 2). Ms. Bello filed the Employer’s
Statement of Intent to Proceed with the appeal.

 JOHN M. VITTONE
Chief Administrative Law Judge

DECISION AND ORDER
This matter involves an appeal of the denial by an Employment and Training
Administration, Office of Foreign Labor Certification, Certifying Officer (“CO”) of
permanent alien labor certification under Section 212(a)(5)(A) of the Immigration and
Nationality Act, 8 U.S.C. §1182(a)(5)(A), and the "PERM" regulations found at Title 20,
Part 656 of the Code of Federal Regulations.

BACKGROUND
The Employer is sponsoring the Alien for a position as a “Mason.” (AF 43, 59).
In its Form 9089 application, the Employer checked the box confirming that there was a
Sunday edition of a newspaper available in the area of intended employment.

The

Employer’s report of its newspaper advertisements indicated that the first advertisement
was placed on February 12, 2006, and that the second advertisement was placed on
December 19, 2006. (AF 45-46, 61-62). The advertisements were stated to have been
published in the Journal News. The part of the ETA Form 9089 used to designate the
date of the second advertisement is Section I-12.

The CO denied the application on October 31, 2006, on several grounds, one of
which was that a Sunday edition of a newspaper was available but not used for the second
required advertisement. (AF 21-23). The Employer then submitted a Reconsideration
Request letter stating that “[t]he selection for section I-12 had a typo that has been
corrected therefore, complying with section 656.17 (e) and 656.17(e)(1)(i).” (AF 3). In
support, the Employer filed an amended ETA Form 9089, with the date of February 13,
2006 penciled in for the first advertisement, and “12/20/05” penciled in for the second
advertisement. (AF 11-12). Also enclosed with the Reconsideration Request letter were
two Affidavits of Publication from The Journal News. The first affidavit, which was

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 signed by a notary public on February 12, 2006, indicated that an advertisement was
published on the 12th day of an unspecified month in 2006. (AF 18). The second
affidavit, which was signed by a notary public on February 20, 2006, indicated that an
advertisement was run on February 19, 2006. (AF 19).
On September 30, 2008, the CO issued a letter accepting the Employer’s
explanation for several of the deficiencies cited in the denial letter, but affirmed the
denial because the amended date for the second newspaper advertisement, December 20,
2005, was a Tuesday.

(AF 1). The CO then forwarded an appeal file to BALCA.

BALCA issued a Notice of Docketing on October 7, 2008. The Employer filed a
Statement of Intent to Proceed with the appeal, but did not file a brief. The CO filed a
statement of position urging that the denial be affirmed.

DISCUSSION
A permanent labor certification issued by the Department of Labor is a required
step for an employer to hire a foreign worker to work permanently in the United States.
In most instances, before the U.S. employer can submit an immigration petition to the
Department of Homeland Security's U.S. Citizenship and Immigration Services, the
employer must obtain a certification from DOL that there are no qualified U.S. workers
able, willing, qualified and available to accept the job at the prevailing wage for that
occupation in the area of intended employment and that employment of the alien will not
adversely affect the wages and working conditions of similarly employed U.S. workers.
To obtain such a certification, the employer must complete an Application for Permanent
Employment Certification (ETA Form 9089), and must attest, in addition to a number of
other conditions of employment, to having conducted recruitment prior to filing the
application under the standards set forth in 20 C.F.R. § 656.17(e).

Under 20 C.F.R. § 656.17(e), with certain exceptions not relevant to the instant
case, the Employer must have attested to having placed two print advertisements on two

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 different Sundays in the newspaper of general circulation in the area of intended
employment most appropriate to the occupation and the workers likely to apply for the
job opportunity. 20 C.F.R. § 656.17(e)(1)(i)(B) and 656.17(e)(2)(ii).

In the instant case, the CO’s findings in the original October 31, 2006 denial
letter, was based upon the “12/19/2006” date listed in the ETA Form 9089, which was a
Tuesday. The Affidavit of Publication from The Journal News, however, indicates that
an advertisement was run on February 19, 2006 – a Sunday.

This was one week

following the first advertisement on February 12, 2006. Moreover, “12/19/2006” had not
even occurred yet when the CO issued the letter of denial.

Thus, it appears that the

Employer made a simple typographical error when filing out the Form 9089, typing
“12/19/2006” when the second advertisement was actually run on “02/19/2006.”

We understand why the CO denied reconsideration. The Employer amended its
ETA 9089 with revised dates that were not Sundays. It is especially baffling why the
Employer reported that the second newspaper advertisement was run on December 20,
2005, which would have predated the first advertisement and would not have been a
Sunday. Thus, based solely on the amended Form 9089, the Employer failed to state a
ground for reversing the finding that the second advertisement was not run on a Sunday.

Nonetheless, looking beyond the bizarre amendments to the ETA Form 9089, we
find that the Affidavit of Publication from The Journal News conclusively established
that the Employer’s second newspaper advertisement was run on a Sunday, and therefore
the Employer actually had complied with the two-Sunday newspaper advertisement
requirement. Thus, the ground cited by the CO for denying certification cannot be
affirmed.

See Healthamerica, 2006-PER-1 (July 18, 2006) (en banc) (reconsideration

improperly denied where tearsheets conclusively established that the Employer was in
compliance with the two-Sunday publication rule).

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 ORDER
IT IS ORDERED that the Certifying Officer's denial of labor certification in the
above-captioned matter is REVERSED, and that the Certifying Officer GRANT
certification.
For the panel:

A
JOHN M. VITTONE
Chief Administrative Law Judge

NOTICE OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Order will
become the final decision of the Secretary unless within twenty days from the date of service a
party petitions for review by the full Board. Such review is not favored and ordinarily will not be
granted except (1) when full Board consideration is necessary to secure or maintain uniformity of
its decisions, or (2) when the proceeding involves a question of exceptional importance. Petitions
must be filed with:
Chief Docket Clerk
Office of Administrative Law Judges
Board of Alien Labor Certification Appeals
800 K Street, NW Suite 400
Washington, DC 20001-8002
Copies of the petition must also be served on other parties and should be accompanied by a
written statement setting forth the date and manner of service. The petition shall specify the basis
for requesting full Board review with supporting authority, if any, and shall not exceed five
double-spaced pages. Responses, if any, shall be filed within ten days of service of the petition,
and shall not exceed five double-spaced pages. Upon the granting of a petition the Board may
order briefs.

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