2003 BALCA Decision Review
In 2003, the Board of Alien Labor Certification Appeals (BALCA) issued 154 decisions, none of which were en banc. The decisions often turn on repetitive issues and fall into familiar categories such as the following (1) Procedural defects, (2) Rejection of U.S. Workers, (3) Bad Faith Recruitment, (4) Prevailing Wage, (5) Prime Facie Argument and Rebuttals.
Very few cases were decided on this basis. They included a dismissal for failure to state grounds for review, an untimely rebuttal, and an untimely request for review, and disqualification of attorney. For example, in Robert & Rhonda Beylik, 2002-INA-114 (BALCA, April 16, 2003), the Employer was held in violation of California state law, because she was not paying unemployment insurance and state disability insurance. The CO offered as a remedy to obtain the proper registration as a domestic employer, i.e., California Form DE-1. In rebuttal, the Employer did not provide Form DE-1, because she could not find it. The Board stated that the Employer was violating the regulations requiring that the job opportunity's terms, conditions and occupational environment not be contrary to Federal, State or local law. Furthermore, the Board held that the regulations require that the job conditions always be in compliance with the law and that the Employer was provided the opportunity to comply procedurally and failed to do so - therefore standing in violation of the regulations.
Twenty cases were decided on the basis of improper rejection of U.S. workers during the recruitment process. For example, in Twin Palms Care Home, 2001-INA-24 (BALCA, January 24, 2003), the job applicants did not respond to certified mail or phone calls, and could have been listed as unavailable on the recruitment report. Instead, the Employer attempted to document that the workers were unqualified on the basis of the resume alone. Under Bronx Medical and Dental Clinic, 1990-INA-479, the Employer can not reject a U.S. worker on the basis of the resume, but must investigate further. As a result, the CO found that the Employer had wrongfully rejected workers, when, in fact, he had not rejected them at all. In another case, Ledgewood International, Inc., 2002-INA-43 (BALCA, October 11, 2002), the Employer offered the position of International Marketing Analyst, but rejected job applicants for reasons not specifically stated on the ETA form or in the ad. Specifically, the Employer inquired about knowledge of quota regulations and Microsoft Software. The Employer provided additional reasons and arguments after receiving a Notice of Findings, and then after a final determination denying the application, the Employer appealed, arguing that the job referrals failed to meet a long list of detailed requirements, even though the job requirements in the forms did not list them. The Court also noted that the requirements should have been listed at an initial stage of the process, and not after interviewing the applicants themselves.
Fifty seven cases were decided for Bad Faith, i.e., lack of bona fide job opportunity or lack of good faith recruitment. Bad Faith is the largest and most common grounds of denial. It only requires a subjective determination by the Board that the Employer's application or procedures show a lack of good faith. While the facts may be argued as a matter of law, the definition of bad faith remains subjective. In Sunview Properties, 2002-INA-80 (BALCA, October 11, 2002), the Employer offered the position of Janitorial Supervisor, but only to referrals who were willing to fill out a questionnaire sent to them. The Employer stated that the referrals who did not return the questionnaires were "deemed unavailable" because the application was incomplete. The questionnaires were sent with the attorney's return address on the receipts. The Board noted that the Employer did not call the job applicants, even after they failed to answer the questionnaires sent to them, and found that this amounted to an unnecessary hurdle by requesting that they submit an application form in addition to their original resume. While the Employer argued that the requirement to fill out an application form was normal, the Board concluded it was evidence of bad faith.
Nineteen cases turned on issues regarding the employer's ability to pay the prevailing wage or the determination of the prevailing wage itself. The INS normally has the responsibility to examine this issue, but courts have uphold the DOL's right to inquire into this area based on the Employer's certification that he has the wages available to pay the alien. In a celebrated case, Ranchito Coletero, 2002-INA-105 (BALCA, January 10, 2003), the CO requested evidence of full time employment. The employer, a sole proprietor, had an annual loss in business income, however, that was caused by depreciation of capital investments. The Employer also noted that he had enough money to pay the wages, taking into consideration his total annual income (adjusted gross income) of $85,000.00. The offer of wages to the alien would have been per schedule C in the amount of $23,850.00. Since the Board held that the farm is a separate entity from the Employer, only the income shown on Schedule C could be used to document the ability to pay the wages. The decision in this case was on appeal to BALCA with AILA participating as an amicus curia. In its review of the prior decision, Board held en banc that as in O'Conner v. Attorney General of the United States, 1987 WL 18243 (D. Mass. Sept. 29, 1987) (unpublished) the entire financial circumstances of a sole proprietorship employer should be considered when considering the ability to pay the wages relating to permanent alien labor certification. The Board also relied on a previous BALCA decision, Ohsawa America, 1988-INA-240 (Aug. 30, 1988), in which, although the corporate employer, as of the date of application for labor certification, had been showing prior losses and a negative working capital, the panel found sufficiency of funds where the company's accountant showed that the employer had increased sales and reduced operating losses, and that the major shareholder, who had indicated a willingness to continue to fund the company, had a person net worth of over $4,000,000.
Prima Facie Arguments
Fifty nine cases involved factual and evidentiary issues presented in the form of prima facie arguments, like remands with requests for documentation, Notices of Findings regarding both substantive and procedural issues, as well as all rebuttals and responses thereto. In one case, the Board reviewed the viability of the Dictionary of Occupational Titles as opposed to the SOC. In David Razo Gardening Service, 2002-INA-129 (BALCA, April 23, 2003), the Employer required a landscaper to work with lawn sprinkling systems as well. The C.O. argued that work with a sprinkling system was not part of the job description in the D.O.T. The Employer then argued that under the Occupational Outlook Handbook and the O'Net System, the duties were more similar to include irrigation than in the DOT. To complicate things, the wages were determined under the Service Contract Act, whose survey source did not include the installation of sprinkler systems. The Board began its analysis by discussing combination of job duties under the regulations and concluded that the CO properly raised the issue; however, the Board found that the Employer's explanation had been sufficient, since the duties of a landscaper include to "dig trenches and install drain tiles," which would appear to be functionally similar to digging and installing an irrigation system." Furthermore, the OOH specifically mentions the installation and maintenance of irrigation systems for a landscape gardener. The Service Contract Act also has a definition of Gardner, similar to that of the DOT. While the wages were determined under the O'Net, the job duties could be determined under the DOT, especially since the O'Net is less precise about particular occupations than is the DOT. The Employer had submitted two letters from colleagues documenting that the job duties of a landscaper should include irrigation systems, and the CO did not discuss the letters or explain why no weight was given to them. (Labor Certification Approved, California). In another case, the Board held that commercial cooking experience may be valid for a domestic cook. In Ron Arthur, 2002-INA-54, (BALCA, October 24, 2002), the Employer offered the position of Domestic Cook, however, the only experience possessed by the alien was as a commercial cook. Since the Employer had not listed the alternate experience requirement of commercial cooking in the ad or on the ETA form, the alien did not meet the stated qualifications. Implicit in the panel's argument was the rationale that an alternate experience like commercial cook would be permissible in a domestic cook case. In a review of an important earlier decision, the Board also met en banc and reaffirmed its holding in re Vito Volpe Landscaping, 1991-INA-300 (Sept. 29, 1994) (en banc). In that decision the Board had determined that a landscaping position in the northeast of the U.S. (in the cold climate zone) was not a full-time position because of seasonal lay-offs each year. The court relied in part on the argument that an H-2B program provided for temporary workers, while the permanent labor certification provided for full-time, permanent employment. The Board further declared that it would uphold its earlier decision under Stare Decisis, i.e., "once a point of law has been settled, a court should follow that precedent." Quoting its 1994 decision, the Board determined that by applying Stare Decisis, it should not overturn itself. The Board added an argument of statutory construction, that to include one thing implies the exclusion of another, and that since seasonal workers are not mentioned in permanent labor certification, the permanent cannot include the seasonal. Judge Pamela Wood wrote a dissent that the Board's decision was flawed because (1) the majority failed to consider the distinction between permanent and temporary labor certification and incorrectly applied the temporary regulations to the inapposite permanent labor certification situation; (2) the majority misapplied provisions from the temporary regulations, which do not address the issue of whether recurring, seasonal employment would constitute permanent full-time work, as required by the permanent regulations; and (3) the majority's analysis fails to consider the policy underlying permanent labor certification, which is premised upon the need for employers to be able to recruit aliens to fill bona fide job opportunities for which there are no qualified and available U.S. workers, taking into consideration the specific circumstances of each occupation. The dissent in the 1994 Volpe decision stated that the employer should demonstrate that the job duties are performed on a continuing basis, the job is career-oriented and for which the applicant has demonstrated a commitment, and that historically, occupants of the position have remained year after year and are not financially dependent on obtaining other employment or unemployment compensation during intermittent breaks in the year. A short-term position, on the other hand is inappropriate for permanent labor certification. Similarly, a job which is subject to one or more lengthy intermittent breaks during the course of a year, or demonstrates a high turnover of occupants from one year to the next is suspect because of the risk that the alien will obtain employment for which the labor market has not been tested or becomes a public charge. Proof of permanence may include documented experience of similar employers and occupations in the area where the work is to be performed….In each case, the Certifying Officer must weight the evidence to determine whether the employer has demonstrated a legitimate need for permanent, i.e., indefinite and substantially continuous, employment."
About The Author
Joel Stewart, Esq.
currently practices in the area of immigration law with Fowler White Burnett P.A. in Miami, Florida. 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. Mr. Stewart writes the monthly BALCA Case Summaries for Immigration Law Today and authors official publications of AILA such as the Visa Processing Guide for Procedures at U.S. Consulates and Embassies in Brazil and Portugal. Mr. Stewart specialized in Romance and Slavic Linguistics before receiving a J.D. from the University of Connecticut School of Law, and is fluent in Portuguese, Spanish, French, and Russian. He can be contacted via email at email@example.com
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