DO WE REALLY HAVE TO WAIT FOR GODOT?: A LEGAL BASIS FOR EARLY FILING OF AN ADJUSTMENT OF STATUS APPLICATION

By Gary Endelman and Cyrus D. Mehta

While the Obama administration is working on unveiling administrative fixes to reform the immigration system, we wish to revive one idea, which we discussed in The Tyranny of Priority Dates.  

We propose that aliens caught in the crushing employment-based (EB) or family-based (FB) backlogs could file an adjustment of status application, Form I-485, based on a broader definition of visa availability. It would promote efficiency, maximize transparency and enhance fundamental fairness by allowing someone to file an I-485 application sooner than many years later if all the conditions towards the green card have been fulfilled, such as labor certification and approval of the Form I-140, Form I-130 or Form I-526. We have also learned that the EB-5 for China has reached the cap, and there will be retrogression in the EB-5 in the same way that there has been retrogression in the EB-2 and EB-3 for India. Systemic visa retrogress retards economic growth, prevents family unity and frustrates individual ambition all for no obvious national purpose

Upon filing of an I-485 application, one can enjoy the benefits of “portability” under INA § 204(j) in some of the EB preferences and children who are turning 21 can gain the protection of the Child Status Protection Act if their age is frozen below 21. Moreover, the applicant, including derivative family members, can also obtain employment authorization.

We acknowledge that INA § 245(a)(3) only allows the filing of an I-485 application when the visa is “immediately available” to the applicant, and this would need a Congressional fix. What may be less well known, though no less important, is the fact that the INA itself offers no clue as to what “visa availability” means. While it has always been linked to the monthly State Department Visa Bulletin, this is not the only definition that can be employed. Therefore, we propose a way for USCIS to allow for an I-485 filing before the priority date becomes current, and still be faithful to § 245(a)(3).

The only regulation that defines visa availability is 8 C.F.R. § 245.1(g)(1), which provides:

An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current). An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.

Under 8 C.F.R. § 245.1(g)(1), why must visa availability be based solely on whether one has a priority date on the waiting list which is earlier shown in the Visa Bulletin? Why can’t “immediately available” be re-defined based on a qualifying or provisional date? We are all so accustomed to paying obeisance to the holy grail of “priority date” that we understandably overlook the fact that this all-important gatekeeper is nowhere defined. Given the collapse of the priority date system, an organizing  principle that was never designed to accommodate the level of demand that we have now and will likely continue to experience,   all of us must get used to thinking of it more as a journey than a concrete point in time. The adjustment application would only be approved when the provisional date becomes current, but the new definition of immediately available visa can encompass a continuum: a provisional date that leads to a final date, which is only when the foreign national can be granted lawful permanent resident status but the provisional date will still allow a filing as both provisional and final dates will fall under the new regulatory definition of immediately available. During this period, the I-485 application is properly filed under INA §245(a)(3) through the new definition of immediately available through the qualifying or provisional date.

We acknowledge that certain categories like the India EB-3 may have no visa availability whatsoever. Still, the State Department can reserve one visa in the India EB-3 like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving is pardoned by the President and not consumed, similarly one visa can also be left intact rather than consumed by the alien beneficiary.   So long as there is one visa kept available, our proposal to allow for an I-485 filing through a provisional filing date would be consistent with INA §245(a)(3).

We propose the following amendments to 8 C.F.R. § 245.1(g)(1), shown here in bold, that would expand the definition of visa availability:

An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current) (“current priority date”). An immigrant visa is also considered available for provisional submission of the application Form I-485 based on a provisional priority date without reference to current priority date. No provisional submission can be undertaken absent prior approval of the visa petition and only if visas in the preference category have not been exhausted in the fiscal year. Final adjudication only occurs when there is a current priority date. An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.

Once 8 C.F.R. § 245.1(g)(1) is amended to allow adjustment applications to be filed under INA § 245(a)(3), we propose similar amendments in the Department of State’s Foreign Affairs Manual to even the playing field for beneficiaries of approved I-140 and I-130 petitions who are outside the U.S. so as not to give those here who are eligible for adjustment of status an unfair advantage. Since the visa will not be valid when issued in the absence of a current priority date, it will be necessary for USCIS to parole such visa applicants in to the United States. The authors suggest the insertion of the following sentence, shown here in bold and deletion of another sentence, in 9 Foreign Affairs Manual (FAM) 42.55 PN 1.1, as follows:

9 FAM 42.55 PN1.1 Qualifying Dates

“Qualifying dates” are established by the Department to ensure that applicants will not be officially informed of requisite supporting documentation requirements prematurely, i.e., prior to the time that the availability of a visa number within a reasonable period can be foreseen. Therefore, post or National Visa Center (NVC) will not officially and proactively notify applicants of additional processing requirements unless the qualifying date set by the Department (CA/VO/F/I) encompasses the alien’s priority date. Otherwise, it is likely that some documents would be out-of date by the time a visa number is available and delay in final action would result. An immigrant visa is also considered available for provisional submission of the immigrant visa application on Form DS 230 based on a provisional priority date without reference to current priority date. No provisional submission can be undertaken absent prior approval of the visa petition and only if visas in the preference category have not been exhausted in the fiscal year. Issuance of the immigrant visa for the appropriate category only occurs when there is a current priority date. Nevertheless, should an applicant or agent request information concerning additional processing requirements, this information may be provided at any time with a warning that some documents may expire if obtained too early in the process.

We believe our proposal would not be creating new visa categories, but simply allowing those who are already on the pathway to permanent residence, but hindered by the crushing priority date backlogs, to apply for adjustment of status or be paroled into the U.S.  Another proposal is to allow the beneficiary of an approved I-140 to remain in the United States, and grant him or her an employment authorization document (EAD) if working in the same or similar occupation. While such a proposal allows one to avoid redefining visa availability in order to file an I-485 application, as we have suggested, we do not believe that a stand- alone I-140 petition can allow for portability under INA §204(j). Portability can only be exercised if there is an accompanying I-485 application. Still, at the same time, the government has authority to grant open market EADs to any category of aliens pursuant to INA §274A(h)(3). Under the broad authority that the government has to issue EADs pursuant to §274A(h)(3), the validity of the underlying labor certification would no longer be relevant.

Our colleague David Isaacson suggests a blunter approach, which would avoid any regulatory amendments. The Department of State could similarly allow filing of adjustment applications by applicants with priority dates for which no visa number was realistically available, at any time it chose to do so, simply by declaring the relevant categories “current” in the Visa Bulletin as it did for July 2007. The most efficient time to do this would be in September, at the end of each fiscal year, when the measure could also be justified as a way to ensure that any remaining visa numbers for that fiscal year did not go unused. The Visa Bulletin cut-off dates for the rest of the fiscal year could theoretically then proceed normally, with dates for each October following naturally from whatever the dates had been in the August two months before.

Finally, we also urge  serious consideration of our other proposal for not counting derivatives as a way to relieve the pressure in the EB and FB backlogs, and refer you to our blog entitled, Two Aces Up President Obama’s Sleeve To Achieve Immigration Reform Without Congress – Not Counting Family Members And Parole In Place, http://blog.cyrusmehta.com/2014/06/two-aces-up-president-obamas-sleeve-to_29.html.

The fundamental point is that priority dates should be a way of controlling not preventing permanent migration to the United States.  The very notion of a priority date suggests a realistic possibility of acquiring lawful permanent resident status. That is no longer the case for many immigrants in waiting. For this reason, since Congress will not act, the President must step forward. Now is the time.

BURNING DOWN THE HOUSE: THE SECOND AND THIRD CIRCUITS SPLIT ON WHETHER ARSON NOT RELATING TO INTERSTATE COMMERCE IS AN AGGRAVATED FELONY

By David A. Isaacson

The lyrics of the Talking Heads song “Burning Down the House” do not mention whether the house in question was involved in commerce.  According to Jones v. United States, 529 U.S. 848 (2000), however, arson of “an owner-occupied residence not used for any commercial purpose” does not qualify as a violation of 18 U.S.C. §844(i), which makes it a crime to “maliciously damage[] or destroy[] . . . by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce.”  Under INA §101(a)(43)(E)(i), 8 U.S.C. §1101(a)(43)(E)(i), a conviction for an offense “described in” 18 U.S.C. §844(i) is an aggravated felony for immigration purposes.  The Courts of Appeals for the Second and Third Circuits have recently come to differing conclusions regarding whether an arson conviction under a state law that does not require such involvement in commerce, and thus would cover burning down a house, qualifies as such an aggravated felony. 

In Bautista v. Attorney General, 744 F.3d 54 (3d Cir. 2014), the Third Circuit, whose jurisdiction includes New Jersey, Pennsylvania, and Delaware, ruled that conviction for attempted arson under New York State law lacking such a commerce requirement “cannot qualify as an aggravated felony because it lacks the jurisdictional element of § 844(i), which the Supreme Court has found to be a critical and substantive element of that arson offense.” Bautista, slip op. at 1-2.  Robert Bautista, a lawful permanent resident of the United States since 1984, had been convicted of attempted arson in the third degree under N.Y. Penal Law §110 and 150.10, and sentenced to five years of probation (and had also been convicted of uttering a forged instrument under New Jersey law, for which he was sentenced to one year of probation).  After being placed in removal proceedings upon his return from a trip abroad, he applied for cancellation of removal for permanent residents under INA 240A(a), 8 U.S.C. §1229b(a), but his application was pretermitted by the Immigration Judge on the ground that the attempted arson conviction was an aggravated felony.  The BIA agreed with this finding in a precedential decision, Matter of Bautista, 25 I&N Dec. 616 (BIA 2011), but the Third Circuit disagreed and vacated that decision.

As the Third Circuit explained, it was clear that the New York arson statute and the federal statute at §844(i) differed with respect to the interstate-or-foreign-commerce requirement but had very similar elements in other respects.

Bautista does not dispute that the New York statute and the federal statute contain three identical, substantive elements: 1) damaging a building or vehicle, 2) intentionally, 3) by using fire or explosives. The Government does not dispute that the jurisdictional element of § 844(i), requiring that the object of arson be “used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce,” is not contained in the New York statute.

Bautista, 744 F.3d at 60, slip op. at 12.  

The Government argued that the jurisdictional element of §844(i) should not count for purposes of the aggravated felony analysis because it was not “substantive”.  The Third Circuit, however, held (in a 2-1 split panel decision) that this element, like the other elements of §844(i), must be present in order for a conviction to qualify under the categorical approach as “described in” §844(i) for purposes of the aggravated felony designation of §101(a)(43)(E)(i). If Congress had wanted to include all generic arson as an aggravated felony, the Third Circuit reasoned, Congress could simply have referenced arson as a generic offense in the statute.  Referencing the federal statute instead evinced a deliberate choice to require the jurisdictional element.  As the majority wrote:

We cannot undermine the categorical approach and Congress’s deliberate choice to include § 844(i), rather than generic arson, in § 101(a)(43)(E)(i). Further, were we to ignore the jurisdictional element in our categorical approach to § 844(i), as the BIA has here, we would be characterizing a state conviction for arson of the intrastate house in Jones as an aggravated felony “described in” § 844(i), when the Supreme Court clearly excised the arson of such intrastate objects from the scope of that federal statute. We are loath to suggest that Congress would use a federal statute, like § 844(i), to “describe” offenses outside the parameter of that very federal statute without an unequivocal indication that it was doing something so counterintuitive.

Bautista, 744 F.3d at 66, slip op at 24.  “The bottom line,” the Third Circuit concluded, “is that § 844(i) does not describe generic arson or common law arson, but arson that involves interstate commerce.”  Therefore, the Third Circuit held that Bautista’s conviction for attempted arson in the third degree under New York law did not constitute an aggravated felony.

Last week, however, the Court of Appeals for the Second Circuit, which includes New York, Connecticut, and Vermont, came to a different conclusion.  In its opinion in Luna Torres v. Holder, No. 13-2498 (August 20, 2014), the Second Circuit deferred to what it found to be the BIA’s reasonable interpretation of the INA.  The Second Circuit did not find the BIA’s conclusion regarding the meaning of INA §101(a)(43)(E)(i) to “follow[] inexorably from the INA’s text and structure.” Luna Torres, slip op. at 13.  However, “[c]onsidering the language of clause 1101(a)(43)(E)(i) and its place in paragraph 1101(a)(43) and the INA as a whole,” the Second Circuit “conclude[d] that the statute is ambiguous as to whether a state crime must contain a federal jurisdictional element in order to constitute an aggravated felony.”  Id. at 11. The Second Circuit therefore determined that the BIA’s interpretation of the statute, in which the BIA had found that such a jurisdictional element need not be included in order for a statute to qualify as an aggravated felony, was entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).  Finding the BIA’s interpretation at least a reasonable one, the Second Circuit deferred to it and denied the petition for review.

One issue that was not addressed in Luna Torres (and may not have been raised) is whether, at the time the Second Circuit made its decision, there was any precedential BIA opinion to defer to.  The BIA’s decision in Matter of Bautista, after all, had already been vacated by the Third Circuit prior to the Second Circuit’s decision.  It seems in some sense disrespectful of that action by the Third Circuit to say, as the Second Circuit did in a section of its opinion addressing and rejecting a retroactivity argument, that “Matter of Bautista . . . governs Luna’s case.”  Arguably, there was no extant decision and judgment of the BIA in Matter of Bautista which could so govern, since it had already been vacated by a court.  The decision in Matter of Bautista, in an important sense, no longer existed by the time of the Second Circuit’s decision.

Moreover, while the BIA had reached the same result in its unpublished decision in Luna Torres’s case as in Matter of Bautista, the Second Circuit had previously held, in Rotimi v. Gonzales, 473 F.3d 55, 56 (2d Cir. 2007), that “a nonprecedential decision by a single member of the BIA should not be accorded Chevron deference.”  Thus the nonprecedential decision in Luna Torres’s case, by itself, cannot be what the Second Circuit was deferring to in its opinion.  Deference was evidently given to Matter of Bautista itself, and yet one might reasonably ask why the Second Circuit should have felt itself bound to defer to a precedential decision that had been vacated by a Court of Appeals and no longer existed.  It might have made more sense for the Second Circuit to vacate the nonprecedential decision in Luna Torres’s case and remand to the BIA as it had vacated the nonprecedential BIA decision in Rotimi and remanded, saying to the BIA, in effect, that it should, in light of the Third Circuit’s decision in Bautista, issue a new precedential decision, Matter of Luna Torres.  The BIA could then have determined not only whether it continued to stand by its reasoning from Matter of Bautista in light of the Third Circuit’s contrary decision, but whether it was troubled by the prospect of its ruling being valid only in some judicial circuits but not others, and would find it appropriate to acquiesce in the Third Circuit’s ruling in the interest of national uniformity. It does not appear that this possibility was considered by the Second Circuit.

Of course, since the Second Circuit found INA §101(a)(43)(E)(i) to be ambiguous and deferred to the BIA’s decision only as a matter of Chevron deference, the BIA could still reconsider Matter of Bautista in the next appropriate case to come before it, and change course to follow the Third Circuit’s Bautista decision.  For the moment, however, if a noncitizen is convicted of burning down a house, whether an arson conviction for that burning is found to be an aggravated felony may depend on whether the noncitizen is placed into removal proceedings in New York or Connecticut, on the one hand, or in New Jersey or Pennsylvania, on the other.

BALCA EN BANC ON WHETHER THE ADDITIONAL RECRUITMENT STEPS FOR PROFESSIONAL OCCUPATIONS MUST COMPLY WITH 656.17(f)

By Cora-Ann V. Pestaina

BALCA (Board of Alien Labor Certification Appeals) has been examining the issue of whether a  Certifying Officer (CO) may deny an Application for Permanent Employment Certification (ETA Form 9089) for a professional occupation if one of the additional recruitment steps does not comply with the advertising content requirements in 20 C.F.R. § 656.17(f). In an en banc decision, Symantec Corporation, 2011-PER-01856 (Jul. 30, 2014), BALCA held that the additional forms of recruitment do not have to comply with 20 C.F.R. § 656.17(f).

The filing of a labor certification with the Department of Labor (DOL) is often the first step when an employer sponsors a foreign national for permanent residency. The purpose of the labor certification process, known today as PERM, is to ensure that the employer has tested the US labor market for qualified and available US workers at the prevailing wage rate prior to filing an I-140 petition to classify the foreign national under either the employment second preference or the employment third preference. If the application is for a professional occupation, the employer must conduct the recruitment steps within 6 months of filing the ETA Form 9089. Two of the steps, a job order and two print advertisements, are mandatory for all applications involving professional occupations, except applications for college or university teachers selected in a competitive selection and recruitment process as provided in § 656.18. Then, under 656.17(e)(1)(ii), the employer must also select three additional recruitment steps from the alternatives listed in paragraphs 656.17(e)(1)(ii)(A)-(J).

Section 656.17(f) lists the advertising requirements for advertisements placed in newspapers of general circulation or in professional journals. These requirements are that these ads must name the employer; direct applicants to report or send resumes, as appropriate for the occupation, to the employer; provide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought; indicate 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 job opportunity; not contain a wage rate lower than the prevailing wage rate; not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089; and not contain wages or terms and conditions of employment that are less favorable than those offered to the alien. The regulations do not address what content must be included in advertisements placed as additional recruitment steps.

In a previous blog, I briefly discussed BALCA’s decision in Matter of Credit Suisse Securities, 2010-PER-103 (Oct. 19, 2010) that the regulations at 656.17(f) govern all forms of advertisements including the additional recruitment steps. In that case, BALCA held that the advertisements must have the purpose and effect of appraising US workers of the job opportunity and in order for this to happen, the additional recruitment steps must contain sufficient information about the position.

In Symantec Corporation, 2011-PER-01856 (Feb. 11, 2014) the question was raised again. In this case, the employer filed an ETA Form 9089 for the position of “Financial Programmer Analyst.” The application was audited and the employer timely responded to the audit. The CO then denied the application because the employer’s advertisement placed on a job search website, as one of the three additional forms of recruitment required for professional occupations, contained a travel requirement not included in the ETA Form 9089 in violation of 656.17(f)(6) in that it contained job requirements or duties which exceeded the job requirements or duties listed on the ETA Form 9089. 

The employer filed a request for reconsideration and argued that the requirements of 656.17(f), upon which the CO relied in issuing the denial, are limited to advertisements placed in newspapers and professional journals, and do not apply to additional recruitment steps found in section 656.17(e)(1)(ii). The employer also cited the Preamble to the regulations, which states that the additional recruitment steps need only advertise the occupation involved in the application, and not the specific job opportunity. The employer also argued that its website advertisement was for multiple positions and the travel requirement expressed by the phrase “may be required to be available at various, unanticipated sites throughout the United States” did not create a travel requirement for all of the multiple open positions listed in the advertisement. The employer stressed that the use of the term “may” indicated that travel “might or might not be part of the job.”  

The CO denied the employer’s request for reconsideration and forwarded the case to BALCA arguing that US workers could consider the phrase travel “may be required” to be a term and condition of employment which could have deterred them from applying for the position.  A BALCA panel of three administrative law judges decided the case. They acknowledged Credit Suisse but noted that it was not an en banc decision and that BALCA, while it recognized, from a policy standpoint, that applying the content requirements to additional recruitment steps would further ensure that the job opportunity is open and available to US workers, does not have the authority to read into the regulations an additional requirement not stated therein. BALCA reversed the CO’s denial of the ETA Form 9089 and held that based on the plain language of the regulations and the regulatory history, the advertising content requirements of 656.17(f) do not apply to the additional recruitment steps. 

Unwilling to accept this, the CO petitioned for en banc review arguing that the panel’s holding conflicted with BALCA precedent and that en banc review was necessary to maintain uniformity in the Board’s decisions. BALCA granted the CO’s petition, vacated the panel’s decision, ordered a rehearing en banc, and permitted the parties to file supplemental briefs. BALCA en banc considered the specific question of whether advertisements placed to fulfill the additional recruitment steps must also comply with the detailed content requirements listed in 656.17(f).

  

BALCA en banc pointed out that the regulations explicitly identify three situations in which an employer must comply with the advertising requirements in 656.17(f):  (1) when an employer places an advertisement in a newspaper of general circulation or a professional journal in fulfillment of the mandatory recruitment for applications involving professional occupations, 656.17(e)(1)(i)(B)(3); (2) when an employer places an advertisement in a newspaper of general circulation in fulfillment of the mandatory recruitment for applications involving nonprofessional occupations, 20 C.F.R. § 656.17(e)(2)(ii)(D); and (3), when an employer posts a Notice of Filing announcing its intent to file an ETA Form 9089 under the basic labor certification process, § 656.10(d)(4). BALCA noted that in all three situations the regulations at 656.17(f) were cross-referenced and that no such cross reference exists in the regulations governing additional recruitment for professional occupations suggesting that the DOL did not intend to impose the content requirements on all types of advertisements.

BALCA en banc also referenced the Preamble to the PERM regulations. When the DOL proposed amending the labor market test to include three additional forms of recruitment, it received a number of comments opposing the proposal. Commenters were concerned that additional recruitment steps would be costly and unduly burdensome.  The DOL responded to these concerns and pointed out that the additional recruitment steps represent real world alternatives and only require employers to advertise for the occupation involved in the application rather than for the job opportunity involved in the application as is required for the newspaper advertisement. The Board pointed out that this clearly shows that the DOL was seeking to alleviate the burden of requiring three additional recruitment steps. BALCA en banc expressly disagreed with the conclusion in Credit Suisse and found that unambiguous regulations must be interpreted in a manner that is consistent with the common understanding of the terms used.

BALCA en banc further pointed out that if the CO does not believe that the existing recruitment regulations provide for an adequate test of the labor market then the recruitment regulations may be amended through a new notice and comment rulemaking process. But the CO may not disregard the plain language of the regulations for policy or other considerations. The en banc panel reversed the CO’s denial decision and directed the certification of Symantec’s ETA Form 9089.

For PERM practitioners, what is the practical take away lesson from Symantec? Does the fact that 656.17(f) does not apply to the additional forms of recruitment mean that these additional forms of recruitment can indeed contain job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089? Can the three additional forms of recruitment contain requirements that are more restrictive than the minimum requirements listed on the ETA Form 9089? In footnote No. 4 to its decision in Symantec BALCA en banc mentioned that the CO, in his argument, relied on East Tennessee State University, 2010-PER-38 (Apr. 18, 2011) (en banc) where the Board concluded that an advertisement placed in fulfillment of an additional recruitment step must not include requirements not listed on the Form 9089, and stated that this conclusion is not binding upon the Symantec en banc Board as the issue was not raised or briefed by the parties, or necessary to the resolution of the appeal, and the Board did not analyze the scope of 656.17(f) in any depth. This could be seen as somewhat confusing to PERM practitioners. How can BALCA hold that 656.17(f) does not apply to the additional recruitment steps but then fail to address the East Tennessee en banc decision stating that the additional recruitment steps must abide by 656.17(e)? Which en banc decision governs? 

I think that PERM practitioners ought not to read too much into Symantec’s footnote No. 4. The en banc panel in Symantec points out that recruitment must be conducted in good faith and that the Board believed that the employer had indeed done this. The Board paid much attention to the fact that the employer’s additional recruitment was for multiple positions with varying requirements and that the employer had indicated the word “may” at the start of each sentence thereby indicating that not all of the requirements applied to each of the multiple positions. The Board stated that the CO does not have to certify an application if he has reason to believe that the employer’s recruitment efforts were not sufficient to warrant certification and the CO may instead exercise his broad discretion to order supervised recruitment under 20 C.F.R. §656.21. Accordingly, pursuant to the en banc decision in Symantec, while the three additional forms of recruitment do not have to comply with 656.17(f) and may be significantly broader or perhaps substantially briefer than the mandatory advertisements and the Notice of Filing, there nevertheless cannot be any information listed on these additional advertisements that is not included on the ETA Form 9089 as this would indicate bad faith on the part of the employer and possibly trigger supervised recruitment.

Viewing Symantec more broadly, BALCA clearly articulated that 656.17(f) was unambiguous, thus precluding the DOL from interpreting the regulation more broadly and insisting that the additional recruitment steps also conform to the requirement for the mandatory advertisements and the Notice of Filing. Pursuant to Auer v. Robbins, 519 U.S. 452 (1997), courts are required to give deference to an agency’s interpretation of its own ambiguous regulation unless such an interpretation is clearly erroneous. By holding that 656.17(f)’s plan language is unambiguous, the DOL will not be able to take cover under Auer by interpreting its regulations willy-nilly to the detriment of employers who recruit in good faith based on the plain language of a regulation but are then snared by the DOL’s different interpretation of its regulation. Auer was similarly criticized by Justice Scalia in his dissent in Decker v. Northwest Environmental Defense Center.   If the DOL desires that the additional recruitment steps conform to the requirements for the mandatory advertisements and Notice of Filing, then it ought to amend the regulation through notice and comment so that it clearly imposes such a requirement.