VALUE MOMENTUM, INC., Employer, SATYA VARA PRASAD SANKARAIAH MADUGUNDU, Alien LEELA ANIL KUMAR TERLI, SASIKANTH KASIREDDY, CYRUS NORIA,

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1 U.S. Department of Labor Board of Labor Certification Appeals 800 K Street, NW, Suite 400-N Washington, DC (202) (202) (FAX) Issue Date: 01 September 2009 In the Matter of: VALUE MOMENTUM, INC., Employer, on behalf of SATYA VARA PRASAD SANKARAIAH MADUGUNDU, BALCA No INA ETA No. P and LEELA ANIL KUMAR TERLI, BALCA No INA ETA No. P and SASIKANTH KASIREDDY, BALCA No INA ETA No. P and CYRUS NORIA, and BALCA No INA ETA No. P SUNIL KUMAR MANDAVA, BALCA No INA ETA No. P and SUNIL KUMAR BHAT, BALCA No INA ETA No. P

2 and MOHAMMED IMRAM ALAM, BALCA No INA ETA No. P and SACHIN BAVEJA, BALCA No INA ETA No. P and PRASHANT SHEKHAR, BALCA No INA ETA No. P and VENKATESH SANKARANARAYANAN, BALCA No INA ETA No. P Certifying Officer: Appearance: Before: Stephen W. Stefanko Philadelphia, Pennsylvania Srinivas Jayashankar, Esquire Shankar & Associates, P.C. New York, New York For the Employer and the s Chapman, Wood and Vittone Administrative Law Judges DECISION AND ORDER PER CURIAM. These appeals arise from the Employer s request for review of the denial by a U.S. Department of Labor Certifying Officer (CO) of the above-captioned application for labor certification. Permanent alien labor certification is governed by -2-

3 Section 215(a)(5)(A) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(5)(A), and Title 20, Part 656 of the Code of Federal Regulations (C.F.R.). 1 The following decision is based on the record upon which the CO denied certification and the Employer s request for review. 20 C.F.R (c). Because the same or substantially similar evidence is relevant and material to each of these appeals, we have consolidated these matters for decision. See 29 C.F.R The following Statement of the Case is based on the Satya Vara Prasad Madugunda application, 2008-INA-00034, which is representative of the Appeal Files in all of the cases. The applications are nearly identical in regard to the issues raised and dealt with by the CO in the Notice of Findings and Final Determinations, and the evidence and argument presented by the Employer in the rebuttals, requests for reviews, and appellate briefs. AF is an abbreviation for Appeal File. STATEMENT OF THE CASE The Application On February 7, 2003, 2 Value Momentum, Inc. ( Employer ) filed an application for labor certification to enable the s to fill the positions of Software Engineer, Systems Analyst, and Manager, Computer Operations. 3 (AF ). The Employer 1 These applications were filed prior to the effective date of the PERM regulations. See 69 Fed. Reg (Dec. 27, 2004). Accordingly, the regulatory citations in this decision are to the 2004 edition of the Code of Federal Regulations published by the Government Printing Office on behalf of the Office of the Federal Register, National Archives and Record Administration, 20 C.F.R. Part 656 (Revised as of Apr. 1, 2004), unless otherwise noted. 2 The dates that each application was accepted for processing are as follows: BALCA No INA November 25, 2002; BALCA No INA October 18, 2002; BALCA No INA December 26, 2002; BALCA No INA January 7, 2003; BALCA No INA November 22, 2002; BALCA No INA March 14, 2003; BALCA No INA March 7, 2003; and BALCA No INA February 7, For BALCA No INA and BALCA No INA the job title was Software Engineer; for BALCA No INA-00149, BALCA No INA-00150, BALCA No INA- -3-

4 listed its address on the ETA 750A as Wilmington, Delaware, but indicated that the address where the will work would be Wilmington, Delaware and various unanticipated locations throughout the United States. In the application for the lead case, the stated that his present address was Richmond, Virginia and that this was the address in the United States where he would reside. 4 (AF 675). He further stated that he had been employed by the Employer from October 2002 to the present as a Programmer Analyst with the same Employer at its South Plainfield, New Jersey address. 5 (AF 676). The Employer requested a Reduction in Recruitment (RIR). (AF 590-1). The Notice of Findings 00152, BALCA No INA-00153, BALCA No INA-00154, BALCA No INA-00155, and BALCA No INA it was Systems Analyst; and for BALCA No INA it was Manager, Computer Operations. 4 Although none of the s lived in Willington, Delaware, the addresses for the s vary. The s individual addresses are as follows: BALCA No INA Cincinnati, Ohio; BALCA No INA-00150, BALCA No INA-00151, and BALCA No INA Edison, New Jersey; BALCA No INA Farmer s Branch, Texas; BALCA No INA and BALCA No INA Glen-Allen, Virginia; BALCA No INA Richmond, Virginia; and BALCA No INA Eagleville, Pennsylvania. 5 While all of the s list prior experience with the Employer at its South Plainfield, New Jersey address, the position titles and dates vary and are as follows: BALCA No INA Programmer Analyst since September 2000; BALCA No INA Software Engineer since October 2002; BALCA No INA Manager, Computer Operations since October 2002; BALCA No INA Software Engineer since November 2002; BALCA No INA Programmer Analyst since August 2002; BALCA No INA Software Engineer since September 2002; BALCA No INA Systems Analyst since March 2002; BALCA No INA Programmer Analyst since July 2001; and BALCA No INA Programmer Analyst since August

5 The CO issued a Notice of Findings (NOF) on January 21, 2004, proposing to deny certification. 6 (AF 583-6). The CO found that the application contained conflicting information and documentation concerning whether the position actually existed and was open to U.S. workers in Delaware or whether the office was established for the purpose of obtaining alien labor certifications. The CO asserted that when a job opportunity involved flexiplace work arrangements, the applications must be filed with the SWA having jurisdiction over the employer s headquarters or main office. The CO also pointed out that if the work will be performed at various unanticipated locations throughout the U.S., a national recruitment campaign should have been conducted and filed with the SWA having jurisdiction over the Employer s headquarters. The CO contended that failure to conduct a national recruitment effort represents a lack of good faith in conducting a bona fide recruitment effort for U.S. workers. Further, the CO asserted that the Employer s choice to conduct recruitment locally in a smaller community rather than in the larger and more appropriate New Jersey Metropolitan Statistical Area ( MSA ), where the headquarters was located, and/or to conduct national recruitment, suggested that the job opportunity is clearly not open to qualified U.S. workers. The Employer was advised that it could rebut these findings by providing various documents, including: (1) a copy of the Employer s Delaware client list including names, addresses, and a point of contact; (2) a copy of initial and current lease agreements for 103 Foulk Road #202, Wilmington, Delaware, 7 the square footage of the office space, photographs of the Delaware location, office phone records, and official payroll records of all Delaware employees, especially for the currently employed alien beneficiaries; 6 This is the date the NOF was issued for the lead case. 7 This is the address of the Employer shown on the ETA 750A. -5-

6 (3) a complete staffing chart of each Delaware employee to include name, wages, reporting officials and/or project managers, including corporate officials, physical location, and the name and contact number for the company s Human Resources Manager (W2 forms, mailing service contacts and Business Identity Plan Agreements will not be accepted); (4) federal tax returns for the prior two years, including a schedule showing employee wages paid and Delaware state tax records; and (5) evidence the job existed before the was hired, including a position description, an organizational chart, formal payroll records, and resumes of former incumbents (W2 forms will not be accepted). The Rebuttal The Employer submitted rebuttal on February 24, (AF ). In its rebuttal, the Employer asserted that it is a fast growing information technology firm with head-offices located in South Plainfield, New Jersey and main offices located in Wilmington, Delaware and Naperville, Illinois. (AF 18). The Employer included a list of its varied clientele, showing that its clients are located throughout the United States, and not just in Delaware, New Jersey and Illinois, where its offices are located. Additionally, the Employer provided detailed information on its clients in Delaware, which included Delasoft and B & T Solutions, LLC. Concerning the actual Delaware office space, the Employer enclosed a copy of its foreign corporation certificate from Delaware; copies of its lease, detailing the square footage of the office spaces used by the Employer; photographs of the Delaware office; payroll records for the nineteen individuals assigned to the Delaware office; a staffing chart of its Delaware employees, showing wages, position descriptions, and reporting officials; copies of State of Delaware Quarterly Tax Records for periods ending 10/31/2003, 07/31/2003, 04/30/2003, and 01/31/2003; Delaware State Corporate -6-

7 Tentative Tax Returns and Quarterly Tax Records for all of 2003; telephone bills for the Delaware office; evidence of payment by the Employer to the Delaware Employment Training Fund; and Delaware Corporate Tax Returns for The Employer also included pages from its website showing the head office, main offices and offshore office address, telephone number and a contact address; copies of W-3 Wage and Tax Statements and Income Tax Returns; and tear sheets for advertisements it placed in the Wilmington News Journal and the resumes it received in response. The Final Determination A Final Determination was issued by the CO on January 6, (AF 10-14). The CO concluded that it was not clear that the job opportunity was open to U.S. workers and therefore the Employer did not comply with the Federal regulations governing the labor certification process. Specifically, the CO noted that out of the sixty-six companies the Employer listed, only one software consulting company was located in Delaware. In addition, the CO pointed out that in all five contracts the Employer provided, it listed its headquarters address as 3001 Hadley Rd., South Plainfield, New Jersey and made no mention of the Delaware address as an intended work location. The CO also noted that all of the nineteen employees assigned to the Delaware office paid state taxes in states other than Delaware. Concerning the office space, the CO pointed out that a 100 square foot office could not serve as a full-time work space for nineteen employees and that the pictures of the space did not indicate that anyone worked in the office on a regular fulltime basis. The CO further noted that according to the Delaware office s phone bills, not one long distance call was placed from September 4, 2002 through October 21, This means, the CO pointed out, that no phone calls were placed to any of the sixty-six clients that the Employer claimed were serviced from the Delaware office, and that no calls were made to the Employer s headquarters office in New Jersey, where the supervisor to all nineteen Delaware employees was allegedly working. Concerning tax payments, the CO asserted that neither the Delaware Corporate Tentative Tax Returns, nor the information -7-

8 on Delaware withholding tax payments supported the Employer s argument that Delaware was the intended work location. The CO concluded that the rebuttal information and documentation did not establish that there were valid job opportunities open to U.S. workers in Delaware and that the Employer had established the Delaware office as a virtual office for the sole purpose of obtaining labor certification. The CO asserted that under Field Memorandum No , where a job opportunity required employees to work at various locations throughout the U.S., the test labor market should be the Employer s headquarters, which was South Plainfield, New Jersey, and not Delaware. Accordingly, the CO denied the application for permanent labor certification. The Request for Reconsideration/BALCA Review The Employer filed a Request for Reconsideration of Denial as well as a Request for Review on February 9, (AF 1-9). The Request for Reconsideration was denied on March 19, In its Request for Review, the Employer contended that the CO s decision was based upon an ignorance of certain facts, a misunderstanding of other facts, and the application of an improper standard of law and that, as such, it was arbitrary and capricious, and constitutes an abuse of discretion. (AF 2). The Employer alleged that the CO acted as a partisan advocate and that he did not present a clear statement of legal basis for the Notice of Findings. The Employer pointed out that in its rebuttal to the NOF, it clearly stated that the Delaware office was not the headquarters, but rather one of its main offices. Addressing the issues brought up by the CO in the Final Determination, the Employer contended that the nineteen employees assigned to the Delaware office did not pay taxes in Delaware because they kept moving from place to place, based on business needs. The Employer conceded that the Delaware office space is small, but asserted that more space is not needed since many of its employees work remotely. -8-

9 Concerning Field Memorandum No , the Employer argued that the CO failed to implement and take full account of this memo and that the CO denied the application based on the assumption that the Delaware office was not a main office, without giving consideration to the documents submitted in the Rebuttal. The Employer placed emphasis on the term main and noted that the Field Memo says that [a]pplications involving job opportunities which require the beneficiary to work in various locations throughout the U.S. that cannot be anticipated should be filed with the local Employment Service office having jurisdiction over the area in which the employer s main or headquarters office is located (emphasis added). Reiterating this point, the Employer argued that the term main offices would not have been included in the Field Memo if DOL only recognized the headquarters office of an employer and that the inclusion of the term main offices provides an alternative filing location to the headquarters. Regarding recruitment, the Employer asserted that the CO ignored its recruitment report and failed to take its recruitment efforts into consideration. The Employer noted that it started placing advertisements in Delaware in August 2002 and continued until May Docketing With BALCA The matters were forwarded to the Board of Labor Certification Appeals, which issued Notices of Docketing on March 26, Neither the Employer nor the CO filed appellate briefs. DISCUSSION 1. Legal Authority Relating to Roaming Employees and Appropriate Location for Filing of Labor Certification Application The Immigration and Nationality Act, 8 U.S.C. 1182(a)(5)(A), provides that "[a]ny alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is excludable, unless the Secretary of Labor has determined and certified -9-

10 to the Secretary of State and the Attorney General that there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor." (emphasis added). Thus, the Department of Labor's regulations require an employer to prove through a test of the labor market that there are not sufficient workers in the United States who are able, willing qualified and available at the time of application for a visa and admission into the United States and at the place where the alien is to perform the work, and that employment of the alien will not adversely affect the wages and working conditions of United States workers similarly employed. Moreover, under 20 C.F.R (c)(8), an employer must clearly show that the job opportunity has been and is clearly open to any qualified U.S. worker. This provision requires an employer to prove that a bona fide job opportunity exists and is clearly open to U.S. workers. Amger Corp., 1987-INA-545 (Oct. 15, 1987) (en banc); Modular Container Systems, Inc., INA-228 (July 16, 1991) (en banc). Where the alien s work site is unanticipated locations rather than a fixed location, the question arises as to where the application should be filed. The filing location is very important because it will dictate the prevailing wage determination and influence where the labor market test is performed. Since the statute and regulations are silent on this issue, the Employment and Training Administration issued Field Memorandum No (May 16, 1994) 10, which provided that "[a]pplications involving job opportunities which require the beneficiary to work in various locations throughout the U.S. that cannot be anticipated should be filed with the local Employment Service office having jurisdiction over the area in which the employer s main or headquarters office is located." In ebusiness Applications Solutions, Inc., 2005-INA-87, et al., slip op. at 12 (Dec. 6, 2006), the panel held that this Memorandum fills a gap in the statute and implementing regulations by recommending the proper location for filing of the application in circumstances where the location for the proposed employment of the is uncertain. The panel held that the Memorandum constituted a reasonable construction of the regulations given the underlying purpose of the statute. Id. at 12. The panel observed that the Memorandum did not impose an inflexible mandate about a filing location, but -10-

11 also observed that nothing in the regulatory scheme obliges a CO to process an application at a location where an employer happens to choose to file, especially where it appears that the employer chose that location to avoid recruiting in a more relevant labor market. Id. at 12. In ebusiness Applications Solutions, Inc., 2005-INA-87, et al. (Dec. 6, 2006), the employer had set up a "virtual" office in Delaware to which workers were nominally assigned, but who actually worked in various locations throughout the U.S. The cumulative evidence in that case established that the Employer had no business reason for the office being located in Delaware other than to obtain faster processing of applications in that state at the time, and the characteristics of the labor market in Wilmington which made it less likely that recruitment would produce qualified and available U.S. applicants. The evidence showed, for example, that the Employer had no significant work in the Delaware area, that it had no concrete business plans for expansion into Delaware, and that the s all lived more than 100 miles from the Delaware office and intended to reside in those distant locations. The panel, while not concerned about a motive to obtain faster processing, found that the Delaware office was an artifice used by the employer to attempt to control where the labor market would be tested, and therefore affirmed the denial of certification. 8 In Paradigm Infotech, 2007-INA-3, 4, 5 and 6 (June 15, 2007), the Employer used its office in Erie, Pennsylvania to file labor certifications for several IT positions. Though the Board found that the Employer did have some business connection to the Erie, Pennsylvania area and there was no evidence that the Erie office was established solely for purposes of supporting the filing of labor certification applications, the panel held that a mere business connection with a location, standing alone, does not establish that such a location is the appropriate place to make a labor market test. Id. at 7. The panel also held that the use of the Erie, Pennsylvania MSA prevailing wage was artificial and misrepresented the appropriate wage rate for this job of potentially national scope. Where a job will involve various unanticipated work sites, the policy stated in 8 Accord Infomerica, 2007-INA-264 and 265 (Apr. 22, 2009) (employer filed applications in Iowa, but failed to show that a bona fide job opportunity existed for a position with a work base in Iowa). -11-

12 ETA Field Memorandum 48-94, 10, that the appropriate venue for filing the application is the jurisdiction covering the employer s main or headquarters office is reasonable, and the mere business presence of an employer in a different MSA is not, in itself, sufficient reason for departing from that policy. Id. at Wilmington, Delaware as the Filing Location In the instant case the Employer is headquartered in South Plainfield, New Jersey, but filed the application on the basis that the work site for filing purposes would be in Wilmington, Delaware. Upon review of the Appeal File, it is clear that the Employer did establish a business location in Wilmington, Delaware, and obtained a business license in that State. However, as the Board stated in Paradigm Infotech, a mere business connection with a location, standing alone, does not establish that such a location is the appropriate place to make a labor market test. Slip op. 7. As the CO noted in his Final Determination, there are several reasons why he found that Wilmington, Delaware was not the proper filing location. Firstly, the Employer does not appear to do much of its business out of this office. As the CO noted, of the sixty-six companies the Employer listed for its Delaware clients, only one was located in Delaware. The phone records for the Delaware office do not show that any long distance phone calls were placed for over a year, from September 4, 2002 through October 21, 2003, suggesting that throughout this year no one from the office ever contacted any of its sixty-six clients that the Employer claimed were serviced from the Delaware office, nor did anyone ever contact the supervisor, who was allegedly working in the New Jersey office. Additionally, the CO observed that the Delaware office did not appear to be large enough to serve as a work space for the nineteen employees who were assigned to the office. The CO also noted that none of the nineteen employees assigned to the Delaware office paid state taxes in Delaware. Further, it did not appear that the would be residing in Delaware, given that he listed his address as Richmond, Virginia on the application and stated that he intended to reside there once the application was certified. 9 9 The address of each varies. The addresses can be found by case number in Footnote

13 In its arguments, the Employer asserted that the Delaware office was used because it was one of the Employer s main offices and that this is permissible under the Field Memorandum. As stated above, the Field Memorandum No , 10 provides that where roving employees are concerned, the Employer should file with the local Employment Service office having jurisdiction over the area in which the employer s main or headquarters office is located." We find that the Employer s emphasis on the word main in this memo is misguided. As the Board stated in ebusiness Applications Solutions, Inc., this memo fills a gap in the statute by recommending the proper location for filing of the application in circumstances where the location for the proposed employment of the is uncertain. Slip op. at 12. The Memo s purpose was not to create law in itself and offer explicit options as to where an Employer may file a labor certification application, but to assist in interpreting the already existing regulations. The Board stated that the Memorandum did not impose an inflexible mandate about a filing location, but also observed that "nothing in the regulatory scheme obliges a CO to process an application at a location where an employer happens to choose to file, especially where it appears that the employer chose that location to avoid recruiting in a more relevant labor market." Id. at 12. As such, the CO was not obliged to process this Employer s application in Delaware simply because the Employer refers to it as one of its main offices. (AF 7). The Employer concedes that its headquarters is in South Plainfield, New Jersey and we see no reason why this office should not be the proper filing location, rather than another one of the Employer s smaller offices in a more remote location. In support of choosing the New Jersey Office as a proper filing location, as the CO pointed out in his Final Determination, in all five contracts the Employer provided, it listed its headquarters address as 3001 Hadley Rd., South Plainfield, New Jersey, and made no mention of the Delaware address as an intended work location. 10 Moreover, the applications were based on prevailing wage determinations for Calendar Year 2003 OES Code , Computer Software Engineers, Systems Software, from Wilmington, 10 It is also noteworthy that while the s live in various locations throughout the U.S., none of which are in Delaware, where they describe their work experience, all the s state that they are currently employed by the Employer at its South Plainfield, New Jersey address. (AF 676). -13-

14 Delaware, which is $82,222 annually for a Level 2 wage. (AF 587). The actual wage offer was $85,000 annually. 11 (AF 673). We take Administrative Notice that the comparable FLCDataCenter prevailing wage for the New Jersey PMSA was $95,389 annually for a Level 2 wage. Thus, if the Employer were to use the New Jersey address for the filing location, he would be required to pay the employee an additional $10,389 annually. Concerning recruitment, the applications in the instant cases were supported by RIR requests based on recruitment done only in local publications, rather than a national trade journal. As the CO pointed out in his Notice of Findings, if the work will be performed at various unanticipated locations throughout the U.S., a national recruitment campaign should have been conducted and filed with the SWA having jurisdiction over the Employer s headquarters. The Board reiterated this point in the Paradigm Infotech cases, stating the labor market may have been adequately tested by publication in a national trade journal rather than solely in local publications. Slip op. at 8. However, in the instant cases, the Employer chose only to place advertisements in the local Wilmington newspaper, thereby attempting to control where the labor market would be tested and limiting its recruitment efforts for qualified U.S. workers. Based on our review of the evidence and the arguments in the Appeal File, we find that the Wilmington, Delaware worksite appears to have been only a nominal assignment, and that testing the labor market as if it was the worksite may have been fallacious, as would be a prevailing wage determination based on that location. We find that the Appeal Files suggest that the Employer is possibly offering a bona fide job opportunities for the positions specified; however, there is ample evidence to support the CO s raising of the concern that the Employer is not offering bona fide opportunities for such positions with a proper filing location in Wilmington, Delaware. 11 The prevailing wages varied, depending on the position title and the time of filing. For BALCA No INA-00150; BALCA No INA-00152; BALCA No INA-00153, the prevailing wage determination was $57,450 for Systems Analyst; for BALCA No INA it was $72,010 for a Database Administrator; for BALCA No INA and BALCA No INA the PWD was $84, 115 for a Computer Software Engineer; and for BALCA No INA and BALCA No INA the PWD was $82,222 for a Computer Software Engineer, Systems. -14-

15 3. Posture of the RIR Request The instant cases were before the CO in the posture of a request for reduction in recruitment. Normally when the CO denies an RIR, such denial should result in the referral of the application for regular processing. Compaq Computer Corp., 2002-INA , 261 (Sept. 3, 2003). We have ruled, however, that a remand for supervised recruitment is not mandated if the reason for the denial cannot be cured by a supervised recruitment. Smith Group Inc., 2005-INA-39 (Nov. 27, 2006). Since we find that these applications for labor certification are not for job opportunities at a bona fide work site remand for supervised recruitment is not warranted. PR Consultants, Inc., 2007-INA-66 (Jan. 16, 2008). ORDER The Certifying Officer's denial of labor certification in the above-captioned matters is hereby AFFIRMED. Entered at the direction of the panel by: A Todd R. Smyth Secretary to the Board of Labor Certification Appeals 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: -15-

16 Chief Docket Clerk Office of Administrative Law Judges Board of Labor Certification Appeals 800 K Street, NW Suite 400 Washington, DC 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. -16-