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Joel Stewart's BALCA Review (September 28, 2004)

by Joel Stewart

Important BALCA Decisions

Substitution of Alien Moots NOF
In Cheema's Supermarket, 2003-INA-220 (BALCA, August 13, 2004), the Employer admitted a familial relationship with the alien and withdrew the application to substitute a new alien. At issue was whether the Employer could moot the allegation of lack of bona fide job opportunity. The Board reasoned that the Employer had unambiguously withdrew its sponsorship of the relative and sought substitution of another alien, and thereby "mooted the familial relationship grounds for denial of the application, unless that relationship is so dubious as to establish that the job was clearly not open to U.S. workers in violation of 20 C.F.R. Sec. 656.20(c)(8), regardless of whether a different alien is substituted for the original beneficiary. Relying on Board made policy, the Board stated that a familial relationship between the alien and the employer is not per se fatal to the application provided that there is a genuine need for an employee with the alien's qualifications, the job has not been specifically tailored for the alien, and the employer has undertaken recruitment in good faith, which has not produced qualified applicants. Applying this rule, the Board ruled that in the instant case there was no evidence that the job offer was so inherently lacking in bad faith that certification should not be granted regardless of the current identity of the sponsored alien. The Board then turned its attention to the question of substitution. The CO had ignored the Employer's request for substitution. The only regulation on point is found in an Interim Final Rule published dated October 23, 1992, which was invalidated in pertinent part by the U.S. District Court in Kooritzky v. Reich, 17 F.3d 1509 (D.C. Cir. 1994). The DOL issued a Field Memorandum No. 37-95 (May 4, 1995) which "essentially returned to the state of law prior to the 1991 Interim Final Rule - i.e., permitting substitution of aliens (emphasis provided). Further, on March 22, 1996, the DOL announced that DOL and INS had developed a Memorandum of Understanding to transfer operational responsibility for processing substitution requests to the INS. Both of these memoranda address only the fate of approved labor certifications, and not pending cases. The Board then concluded that the record is not ripe for a decision on the question of substitution of aliens while the application is still pending and remanded to the C.O. to rule on the Employer's request for substitution. Note: The Board has already held that an alien may substitute an employer while the application is pending at DOL (see Law Offices of Jean-Pierre Karnos, 2003-INA-18, BALCA, May 20, 2004)(Remanded to CO in Boston, Massachusetts)

Private Room Required for Live-In Workers
In TCM Elderly Camino Ramon Home Care, 2003-INA-166 (BALCA, August 23, 2004), the CO challenged the existence of a bona-fide job offer for a nursing home, because the Employer intended to house six residents and two workers in a six-room house. The Employer provided evidence of a legal business, including tax forms and business licenses. Although the Employer appeared to provide a satisfactory response to the NOF, the CO issued a denial citing the fact that the regulations require private rooms for domestic workers. The CO did not specifically state that the employer had to provide private rooms. In its holding, the Board stated that although the NOF did not specifically mention the requirement that live-in workers be provided with a private room, "the CO is not required to provide a detailed guide to the employer on how to achieve labor certification." The CO's duty is only to (1) identify the section or subsection allegedly violated and the nature of the violation, (2) inform the employer of the evidence supporting the challenge, and (3) provide instructions for rebutting the violation. If the employer had read the regulation cited, he would have known that the live-in domestic workers would each have to have their own room. (Application Denied, San Francisco, California).

Attorney Signed Rebuttal to NOF
In Morici Brothers Fresh Fish Daily, 2003-INA-149 (BALCA, August 13, 2004), the attorney expressed a willingness to readvertise because the job title was a Boatswain but the ad had been placed under Manager, and the Employer also provided various documents including tax returns signed by the Employer to establish the existence of a bona-fide job offer. The CO denied, claiming that the rebuttal had been signed not by the employer but by the employer's attorney. On appeal the Board noted that the attorney had provided documents signed by the employer, an important fact because only the employer can attest to facts, not the attorney. Importantly, the Board held that "the attorney is the employer's representative and is therefore allowed to present evidence on his behalf…the attorney has signed the rebuttal as the Employer's agent and certification cannot be denied on this ground." (Remanded, San Francisco, California).

Suppressed Job Orders for Schedule B Waivers
In Tender Loving Care, 2003-INA-167 (BALCA, August 18, 2004), the CO raised a novel issue regarding Schedule B Waivers, coining a new term of art, "Suppressed and non-suppressed" job orders. By "suppressed" the CO means a job order as one "with accounting for responses" and an unsuppressed job order as one "without any way to account for responses from available US workers." Keeping in mind that Schedule B cases are not eligible for RIR, the applications would have been filed by regular processing, including a job order at the local job service office, in California, at the EDD. The instant job was for the position of Caregiver in a residential home for the elderly, where the employer sought to employ a total of 10 applicants. One of the requirements to process a labor certification for a Schedule B occupation is to provide the CO with documentation of the job offer in the local job bank of the SWA. The regulations do not explain how the Employer should obtain documentation of the job order, but it has been supposed that they would provide it by attaching it to a request for Schedule B waiver. Presumably the SWA has a duty to provide this service in good faith and assist the employer in his filing with the agency. Nevertheless, in this case, the CO found that the request for waiver was inadequate, because it did not provide documentary verification from the local job service office that it had a "suppressed" job order on file with the local office. The Employer responded to the rebuttal by informing that it had contacted the local job service and was informed that all job orders are run suppressed. The Employer listed the name and phone number of the staff person with whom the Employer spoke and submitted the final documentation notice from the local job service. The CO then found that the policy to run suppressed job orders was not in effect at the time that the Employer filed its application. Noting that the employer had not provided documentation to confirm that the order had been run "suppressed", the Board dispensed with the Employer's statement under the grounds that (a) a bare assertion from an employer without supporting documentation is not sufficient and (b) the Employer has a burden or proof to create a record upon which certification can be granted. The Board then held that "simply giving the name and number of a contact at the state agency is insufficient to document the Employer's assertion." In conclusion, the Employer should have obtained a statement from the job service confirming that the order was suppressed. (The Board contemporaneously decided several other cases on the grounds of suppressed job orders. See A-R Residential Care for the Elderly, 2003-INA-154, BALCA, August 13, 2004 (Denied, San Francisco, California); Rolan's Residential Care, 2003-INA-168, BALCA, August 23, 2004) (Denied, San Francisco, California).

600 Referrals Vie for Position of Software Engineer
In Innova Solutions, 2003-INA-94 (BALCA, August 11, 2004), the Employer received 600 referrals for the position of Software Engineer during the RIR recruitment period. The referrals were reduced to 180 applicants potentially skilled, all of whom were interviewed. The Employer then stated that a percentage of those interviewed were unavailable, leaving only nine applicants available with the required skills. All nine were offered positions and hired, since the Employer claimed it would have at least fifteen to twenty openings for software engineers. Upon review of the application, the CO found a number of routine deficiencies, including questioning business necessity for a Master's Degree, work to be performed with or without supervision, and tailoring to the alien. The CO had denied the application per the Ziegler memo, but the state that the failure of the employer to meet the requirements for RIR should only result in a remand for further recruitment, and not an NOF or denial. The Board held that the CO acted improperly in following the Ziegler memo. (Remanded, San Francisco, California).

Prevailing Wage Determination at Time of RIR Review
In Solectron Corp., 2003-INA-143 (BALCA, August 12, 2004) BALCA remanded an application for RIR that was denied by the CO instead of remanded to the SWA for further recruitment, holding that GAL 1-97 Change 1 (the "Ziegler Memorandum") was improper. The memo required the CO to deny an application that did not meet the memorandum's standards for review of recruitment during lay-offs, however, the regulations require that the CO remand all RIR cases that do not meet the CO's requirements for satisfactory recruitment. The Board then considered whether the Prevailing Wage should be used from the filing date or from the date when the CO considers the RIR application. In the instant case, the Board rejected the employer's arguments that the CO did not consider the application in timely manner. The Technical Assistance Guide requires such consideration, but the TAG is only a manual and serves as operating instructions, not as regulations. Thus the Board has preserved the CO's right to review applications for RIR at then-current wages and not at the wages prevalent upon filing the RIR with the DOL or SWA. (Remanded, San Francisco, California).

Additional Recent BALCA Decisions Dealing with Repetitive, Cumulative Issues

  1. Inconsistent Documentation.
    Corina Care Home, 2003-INA-145 (BALCA, August 11, 2004).
  2. Failure to Recruit through Labor Union.
    R.E. Drywall Contracting, Inc., 2003-INA-223 (BALCA, August 18, 2004)
    Lido Veal & Lamb, Inc., 2003-INA-139 (BALCA, August 4, 2004).
  3. RIR Denial Requires Remand for Recruitment.
    Cisco Systems, Inc., 2003-INA-249 (BALCA, August 23, 2004).
  4. Bona Fide Job Offer for Domestic Cook.
    Denise Statile, 2003-INA-135, 2003-INA-135.
  5. Untimely Contact of US Workers.
    Majestic Wood Works, 2003-INA-245 (BALCA, August 18, 2004).
  6. Unstated Requirements Imposed During Recruitment.
    Woodland Hills Fireplace Shop, 2003-INA-169 (BALCA, August 11, 2004).
  7. Lengthy Delay to Confirm References.
    Town and Country Escrow, 2003-INA-218 (BALCA, August 11, 2004).
  8. Lengthy Delay to Contact U.S. Job Referrals.
    Karina's Bakery, 2003-INA-199 (BALCA, August 4, 2004).
  9. Combination of Job Duties.
    Orlando Guest Home, 2003-INA-126 (BALCA, August 17, 2004).
  10. Failure to Provide Documentation to C.O.
    Emerald Painting Co., 2003-INA-217 (BALCA, July 20, 2004).
  11. Failure to Provide Documentation to C.O.
    Chandu, Inc., 2004-INA-219 (BALCA, August 11, 2004).
  12. Bona Fide Job Offer - Son of Owner.
    Capelli Antiques Furniture Restoration, 2003-INA-98 (BALCA, August 5, 2004).
  13. Lengthy Delay to Contact U.S. Job Referrals.
    Celeste Carlesimo, 2003-INA-175 (BALCA, July 20, 2004).
  14. Alien Gained Experience with Employer.
    Ray Saoud Farms, Inc., 2003-INA-178 (BALCA, July 20, 2004).
  15. Rejection of U.S. Worker on Basis of Resume.
    Lydia's Bakery
    , 2003-INA-222 (BALCA, August 5, 2004).
  16. No Full Time Job Opportunity.
    Masako Landscape & Garden, 2003-INA-221 (BALCA, August 4, 2004).

About The Author

Joel Stewart works exclusively in the area of immigration law. He is Past President of the South Florida Chapter of the American Immigration Lawyers Association (AILA) and is a nationally recognized authority on employment-based immigration matters and a popular speaker at immigration seminars for national and local bar associations throughout the United States. From 1988 to 2004, Mr. Stewart wrote the monthly BALCA Case Summaries for AILA Monthly Mailing/Immigration Law Today and now contributes monthly summaries to ILW.COM. He has also authored Process and Procedure at the U.S. Consulates and Embassies in Brazil and Portuguese for AILA for many years. Fluent in Portuguese, Spanish, French, and Russian, Mr. Stewart specialized in Romance and Slavic Linguistics before receiving a J.D. from the University of Connecticut School of Law, and is a partner at the firm of Fowler-White-Burnett in Miami, Florida.

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