BALCA Concludes Private Household Must Have FEIN Number
U.S. Department of Labor Board of Alien Labor Certification Appeals
800 K Street, NW, Suite 400-N
Washington, DC 20001-8002
(202) 693-7365 (FAX)
Issue Date: 04 June 2008
BALCA Case No.: 2007-PER-00104
ETA Case No.: C-06095-04139
In the Matter of:
on behalf of
CHERRY PENDON EBOJO
Certifying Officer: Dominic Pavese
Chicago Processing Center
Appearances: Miguel P. Inumerable, Esquire
Law Offices of Miguel P. Inumerable and Associates
Los Angles, California
For the Employer and Alien
Gary M. Buff, Associate Solicitor
Stephen R. Jones, Attorney
Office of the Solicitor
Division of Employment and Training Legal Services
For the Certifying Officer
Before: Chapman, Wood and Vittone
Administrative Law Judges
DECISION AND ORDER
PER CURIAM. This matter arises 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.
The following decision is based on the record upon which the Certifying
Officer (CO) denied certification and the Brief of the Certifying Officer,
filed on October 1, 2007. 29 C.F.R. § 656.27(c) (2005).
STATEMENT OF THE CASE
On February 16, 2006, Ms. Carmen Lee (“Employer”) filed an
Application for Permanent Employment Certification on behalf of Cherry
Pendon Ebojo (“Alien”) for the position of “Home Health
Aide.” (AF 26-37). The job duties were described as:
To provide daily assistance, care and companionship to an elderly recovering
heart transplant recipient at the latter’s residence. To administer
medication at the proper times, to plan, cook and prepare meals that are
low sodium and meets dietary instructions, to do the grocery, clean the
house, do laundry and change linens, to assist the client in moving from
bed, bathe, dress and groom; to do housekeeping and routine personal care;
to accompany client as guide and companion.
(AF 29). The Employer required that an applicant have two years prior
experience. (AF 28). The offered wage was $7.63 per hour. (AF 28).
On June 8, 2006, the CO denied certification on four grounds. (AF13-15).
The four grounds arise from the PERM regulations at 20 C.F.R. § 656.17(a),
which require an employer to file a completed Department of Labor Application
for Permanent Employment Certification form (ETA Form 9089). The Employer
failed to make selections for the following questions on the ETA Form
9089: Section C-6 (Year commenced business); C-7 (Employer FEIN); F-3
(Skill level); K-5 (Job 3 Title). (AF 15).
On July 7, 2006, the Employer filed a request for reconsideration. (AF
5-12). The Employer asserted that her response for Section C-6 clearly
indicated that the job offering was for a private household. The Employer
argued that the CO improperly demanded a selection to be made for Section
C-6 of the ETA Form 9089 when the instructions themselves excused the
Employer in this case from this requirement as a private household. (AF
6). Second, the Employer asserted that with regards to Section C-7 (Employer
FEIN) she clearly made a selection/response when she indicated therein
“None.” (AF 6). For these reasons the Employer argued that
the denial should be reviewed and the application should be granted.
On August 24, 2007, the CO denied reconsideration. (AF 1-2). The CO asserted
that the Employer’s request for reconsideration did not overcome
all deficiencies noted in the determination letter. The CO determined
that although the Employer’s reasoning with respect to Section C-6
had been accepted based on her request for reconsideration, the Employer’s
reasoning with respect to Section’s C-7 (Employer FEIN), F-4 (Skill
level), and K-5 (Job 3 Title) had not been accepted. Accordingly, the
CO concluded that the denial reasons remained valid. This matter was forwarded
to BALCA on August 24, 2007 and a Notice of Docketing was issued on September 12, 2007.
We affirm the CO’s denial of certification. The Employer offered
an incomplete ETA Form 9089. The regulations at 20 C.F.R. § 656.17(a)
require that an “employer who desires to apply for a labor certification
on behalf of an alien must file a complete Department of Labor Application
for Permanent Employment Certification form (ETA Form 9089).” 20
C.F.R. § 656.17(a). The regulations go on to say that “incomplete
applications will be denied.” 20 C.F.R. § 656.17(a). In the
instant case, the ETA Form 9089 omissions are material and the Employer
failed to correct them by offering documentation in her request for reconsideration
to establish compliance with the regulations.
The CO correctly cited 20 C.F.R. § 656.3, which defines “employer”
as possessing a valid FEIN and states that “an employer must possess
a valid Federal Employer Identification Number (FEIN).” (emphasis
added). Hence for a private household filing ETA Form 9089 to be considered
an employer, it also must obtain an FEIN from the Internal Revenue Service.
The preamble to the PERM regulations state that the FEIN will be used
to verify whether an employer is a “bona fide business entity.”
69 Fed. Reg. 77326, 77329 (Dec.27, 2004); Maria Gonzalez, 2007-PER-24,
April 25, 2007. Thus, the requirement at Section C-7 of the ETA Form 9089
requiring submission of a FEIN is fully supported by the regulations and
by the policy stated in the regulatory history of the PERM regulations.
In the instant case, the application and request for reconsideration substantiated
that the Employer did not qualify as an “employer” for purposes
of § 656.3, because she did not have a FEIN, and therefore pursuant
to the regulations, the Employer did not qualify to file the ETA Form
9089. Moreover, the Employer’s request for reconsideration underscored
this defect where it explained that Section C-7 was blank, not due to
an inadvertent omission, but because the Employer clearly made a selection/response
when she indicated “none.” (AF 6).
In regards to Section’s F-4 (Skill level) and K-5 (Job 3 Title),
both are required entries. The Employer failed to complete these sections
of the ETA Form 9089. Moreover, the Employer did not address these denial
reasons in her request for reconsideration.
The Employer clearly failed to obtain a FEIN number and to complete Sections
F- 4 and K-5 of the application. Accordingly, the CO properly denied certification.
Based on the foregoing, IT IS ORDERED that the Certifying Officer's
denial of labor certification in the above-captioned matter is AFFIRMED.
Entered at the direction of the panel by:
Todd R. Smyth
Secretary to the Board of Alien Labor
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.