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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Joel Stewart's BALCA Review

by Joel Stewart, Esq.

Joel Stewart Cases Of Note

Featherland Farms, Inc.
2003-INA-6
BALCA, 29 March 2004

The Employer rejected a US worker who was not interested in traveling outside the intended area of employment. The rejection was on the basis of an unstated requirement that was included on the ETA form, in the posting or in the ad. Later, the Employer tried to give additional reasons for rejecting the worker, namely, that the US worker did not possess the proper degree to satisfy the educational requirement. The Board stated that once an employer has rejected an apparently qualified applicant for an unlawful reason, the CO is not required to accept additional bases for rejection, and the case is simply denied for lack of good faith.

Cases Of Interest
Chilitos
2003-INA-100
BALCA, April 7, 2004

The Employer required a foreign food specialty cook to prepare and cook meals from scratch based on the menu and daily specials. The Employer showed photos of its daily specials and the business. The CO noted that the food was being served in a food court, and that there were five daily specials each day. The Employer also explained that the preparation involves several steps. The Board stated that the CO had made a finding that the restaurant was not full service but a fast food establishment. The Board stated that the dishes to be prepared did not require two years experience, but did not explain how it reached that conclusion. The record showed that the Employer prepared daily menu items and specials prepared from scratch. Nevertheless, the Board held that the food preparation did not require a skilled worker. Apparently the Board has interpolated the issues, so that the need for a skilled cook is determined by the type of restaurant (food court instead of candle-light and wine) and not by the duties required to prepare the dishes. The Board quoted other cases where BALCA had held the same. There was no evidence in the record that the job required less than a skilled cook other than the situs (food-court) of the food to be served.


ABS Electric, Inc.
2003-INA-88
BALCA, March 31, 2004

In this case the Employer rejected a US worker based on a resume alone, and without an interview. The CO stated that the US worker might have been qualified on the basis of a combination of education, training and/or experience. The CO also stated that the SOC defined an experience zone of 2-10 years, and that the three-six years experience requested by the Employer were in excess of the minimum two years defined in the experience zone of the SOC. The Board held that the worker had a broad range of experience and appeared to meet the minimum requirements set by the Employer. Since the Employer chose to summarily reject the worker, the labor certification was properly denied. Not addressed in this decision is the fact that the DOT is still used to define minimum requirements, not the SOC, and that the Employer sets the minimum requirements. If the minimum requirements are at the high end of the zone, the CO has to accept this. He can't substitute his judgment and say that the Employer should have found persons qualified at the lower end of the experience zone.

Progressive Greenery
2003-INA-142
BALCA, March 31, 2004

This case presents mixed issues of minimum requirements and Due Process in the Notice of Finding. The position offered was Landscape/Maintenance Foreman. The alien was self-employed as a gardener from 1982 to present and did not mention supervisory experience on the ETA form. In rebuttal, the Employer wrote that the Alien had supervisory experience on a previous job and listed amendments to show that experience. The Employer argued that the alien was qualified because he had two years of experience as a supervisor (not in the job offered) and two years of experience in landscaping (but not as a supervisor). The CO denied the application because the alien had supervisory experience in roofing but not in landscaping. On appeal, the Employer attempted to provide additional explanation of the alien's experience, but the Board held that the information was not properly part of the record, since it had been submitted late. Note: Although the Employer failed to document that the alien was experienced as a supervisory of landscaping, he could have satisfied the supervisory requirement by documenting his work as a self-employed, hence self-supervised landscaper. As a self-employed person, he would have performed all the duties of a landscaper, supervising his own job by performing all the functions of a supervisor/landscaper. The only function lacking might have been actual supervising of other persons, however, he might have worked with other landscapers or helpers from time to time, to move rocks, trees or at peak time, and he could have provided documentation that he performed the duties of self-supervising and occasional supervision of other persons.


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 jstewart@fowler-white.com


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