Joel Stewart's BALCA Review (May 11, 2004)
Certifying Officer Owed Third NOF to Employer
The CO committed several errors in the issuance of the NOF and Final Determination. First, the CO mistakenly stated that the NOF had questioned the Employer's rejection of US workers, however, the CO had not questioned that specific issue. Second, the CO raised an issue for the first time in the Final Determination, without giving the Employer a chance to rebut. Since the CO should have issued a Third NOF to the Employer, to provide an opportunity to adequately rebut the issues. The application was remanded for further determinations. DC Computer Consultants, Co., 2003-INA-127 (BALCA, 29 April 2004).
Japanese Cook Denied for Mexican Restaurant
The Employer petitioned for a chef to cook Japanese-style dishes in a Mexican Restaurant. When the Certifying Officer threatened to deny the application, the Employer rebutted that an American cook would not know how to prepare Japanese food and that only a chef trained in Japanese food could do the job. However, since the Employer did not provide any proof, BALCA upheld the Certifying Officer's denial because the Employer had not proven a business necessity for a cook with experience in Japanese food. Las Palmas Restaurant, 2003-INA-130 (BALCA, April 28, 2004).
American Worker Rejected for Salary Refusal
The Employer sought to reject US workers for the position of accountant. One was rejected for lack of specific software knowledge, however, the Certifying Officer noted that the specific knowledge was not listed on the application form, and that the special requirement had materialized only after the job applicant had appeared for an interview. Furthermore, the Employer rejected another US worker for refusal to accept the salary proposal. The Board held that the Employer could not reject a US worker for refusal to accept the salary, unless an actual job offer had been made, and the worker had then refused the offer. In conclusion, the Employer failed to document that the US workers were either unqualified or unwilling to accept the job. Global Venture, 2003-INA-124 (BALCA, April 28, 2004).
Information in Ad Inconsistent with ETA Form
The Employer's ad required willingness to provide direct care for retarded clients for the position of Residence Supervisor. The Certifying Officer stated that the requirement was restrictive because it was not on the ETA 750A form and would have a deterrent effect on US workers. The Employer believed that the ad was acceptable because it had been approved by the EDD, and therefore refused to place a new ad. Unfortunately, the Employer did not know that state officers do not have the authority to approve or deny newspaper ads. The Board opined that the Employer could have cured the defect by amending the ETA 750A form, however, since no correction was provided, the Board held that the application was not approvable because t he job opportunity in practice was different than the one listed on the form. Facunla Family Home, 2003-INA-49 (BALCA, April 12, 2004).
Interviews the Second Time Around
When 30 applicants were referred for the position of Production Manager, the Employer sent invitation letters for interviews that did not arrive until the day of the interview or even before the interview date. The CO stated that the candidates not given a fair chance to respond to the invitation. In response, the Employer rebutted that the candidates were given a fair chance because they were offered a second round of interviews, however, the Certifying Officer concluded that the Employer should have called or otherwise contacted the workers who did not show up for the job interviews. Furthermore, the Employer's efforts to contact the workers after receiving a Notice of Findings were discounted, as the Board concluded that there was no good faith recruitment. Global Venture, 2003-INA-125 (BALCA, April 12, 2004).
Travel Requirement Held Unlawful
The Employer had an unstated requirement for the position of Social Service Director - to travel between facilities. After an interview, a U.S. worker was rejected, because she had no knowledge of the job description, even though she met the Employer's educational requirements. However, since the Employer had not listed the requirement of familiarity with the job on the ETA form, but had only listed the requirement of a degree in a related field, the requirement of familiarity with the job was unlawful. The Certifying Officer further noted that the travel requirement had been interposed after the fact, apparently to justify the rejection. The Board held that it was unlawful to reject another otherwise qualified U.S. applicant for failure to meet an undisclosed requirement. Professional Staffing Services of America, 2003-INA-46 (BALCA, April 12, 2004).
Furniture Makers Rejected on the Basis of Resumes Alone
The position of furniture maker required two years experience including preparation and construction of furniture from blueprints, drawings or instructions. In response to six job referrals, the Employer found them unqualified. One worker was rejected for experience only in sales and design. Another applicant was considered unqualified by a former employer, but no effort was made to speak to him personally. Other applicants were not contacted at all to determine the details of their experience. The Certifying Officer noted that the Employer had an obligation to inquire beyond the face of each resume, but should not have rejected job applicants only on the basis of their resumes alone. Since the Employer had failed to interview the applicants, the application was denied for failure to document lawful reasons for rejection of the workers. Sisneros, Inc., 2003-INA-44 (BALCA, April 12, 2004).
Painters Rejected for Failure to Appear for Interview
Eight applicants were referred to the Employer for the job of Painter, Construction. The minimum requirements were two years experience in the job offered. The Employer sent each referral an interview letter. When seven of the painters did not appear for an interview, the Employer rejected them. However, since the applicants had provided telephone numbers, the Certifying Officer said that the Employer should have called them to find out why they did not come to the interviews. The Board also noted that when there is no return receipt, the employer has no way of knowing whether the letters were received and held against the Employer, "Presumably an employer who has a bona fide opening it desires to fill would, in exercise of good faith, make additional efforts to contact these applicants again, either by certified mail or by the telephone number provided on each of the applicants' resume. The Employer made no such efforts." Drywall Systems, Inc., 2003-INA-148 (April 29, 2004).
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 firstname.lastname@example.org
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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