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Joel Stewart's BALCA Review (June 22, 2004)

by Joel Stewart, Esq.

Joel Stewart Substitution of Petitioner: Same Job Opportunity & Area of Intended Employment
In Law Offices of Jean-Pierre Karnos, 2003-INA-18 (BALCA, May 20, 2004), attorney Karnos was defunct, and attorney James G. Roche continued with his practice. Mr. Roche alleged that he would continue with the application for labor certification on behalf of an accountant, and stated that the business was the same except for minor administrative changes. The CO directed Mr. Roche to prove that both the business and the business name were the same by producing a contract showing that Mr. Roche had inherited or taken over the firm from Mr. Karnos. Mr. Roche replied that due to the untimely death of Mr. Karnos, no contract was drafted, but the business was ongoing under the name of Mr. Roche and that he wished to continue the labor certification under the same terms and conditions set forth in the application. In the absence of a written contractual or inheritance agreement, the CO stated that Mr. Roche had to be considered a separate employer and could not continue with the application. By rebuttal, Mr. Roche stated that a new application was not required since the alien was working in the exact same position, performing the same duties, and in the same area of intended employment for the same salary or wage, according to the rule determined in International Contractors, Inc., and Technical Programming Services, Inc. On review, the Board further cited International Contractors, Inc., and Germania Club, Inc., the Board in which it had been held that the employer must file a new application unless the same job opportunity and the same area of intended employment are preserved. The Board then stated that the same job opportunity had, in fact, been preserved and that the employer clearly demonstrated that there is a bona fide job opportunity in the same area of intended employment, and that both had remained the same, despite a change in employers. The Board then went on to announce an important holding, "...we hold that the change in employers, when an adequate test of the labor market has been performed and when the position remains the same, does not offend the policies of labor certification." Of great significance was the fact that the new Employer certified that the position remained the same as the original, in the same area of employment, and the labor certification should not be denied solely on the change in employers. Note: Although the petitioner focused on trying to establish similarities between the previous employer and himself, the Board went beyond a narrow conceptual analysis regarding the identity of the Employer and held the application for labor certification may be transmitted to a new employer, if the application has the same job opportunity and the area of intended employment is the same.

Board Creates Concept of Passive Recruitment
In Ukay Trucking and Delivery, 2003-INA-137 (BALCA, May 25, 2004), the Employer contacted US workers by leaving messages on their answering machines. Although the workers did not call back, and therefore did not evidence lack of interest in the job, the Board characterize the Employer's actions as "passive recruitment". According to the Board, the Employer's actions were not diligent, because he simply waited for them to call back, and did not use any other form of contact like certified letters. The Board concluded that the Employer's calls to the workers were nothing more than a "meager step" and did not amount to a good faith recruitment effort. (The application was denied by CO Dolores Dehaan, New York, and denial was affirmed by the Board.)

Failed to Contact Referrals for the Usual Reasons
In Horizon International, 2003-INA-21 (BALCA, May 26, 2004), the Employer made a series of classic errors in failing to contact US workers as required. Among the errors made were the following: (1) Employer waited more than three weeks to contact one referral (workers should be contacted within 10 days); (2) Employer left a message with the referral's wife (The Board has held that an employer may not leave a message with any person except the referral - even the referral's spouse does not suffice); (3) Employer reported that the referral stated that he wanted a position in a larger company (Employer should have documented that he actually offered the position and the referral then refused); (4) Employer failed to list details of efforts to contact referral by phone (A telephone log and/or long-distance telephone records are recommended); (5) Employer rejected a referral on the basis of his resume (DOL policy and BALCA decisions require that the Employer inquire beyond the face of the resume to determine if the referral is qualified by a combination of experience, education and training); (6) Efforts to contact referrals by mail were inadequate (one applicant had an insufficient address and the employer made no effort to find out a sufficient address); (7) One referral was unavailable for the scheduled interview (Employer should have scheduled an additional interview); (8) The recruitment report itself was inconsistent and presented contradictory information. (The application was denied by CO Martin Rios, San Francisco, and denial was affirmed by the Board).

Failure to Prove Licensure Not Required Nursing Supervisor
In Anthony T. Lee, M.D., 2002-INA-274 (BALCA, May 26, 2004), the Board upheld denial based on the Employer's failure to prove that a license was not required for a supervising nurse. The position offered was Case Coordinator (classified as Social Worker, Medical). The job duties were to conduct case conferences, coordinate patient care during pregnancy and teach perinatal classes, as well as training and supervising comprehensive perinatal health workers (CPHW). The CO argued that a license was required, specifically that of a registered nurse. On rebuttal, the CO required that the Employer demonstrate that the position did not require a license or that the alien would be eligible to obtain a license. On rebuttal, the Employer attempted to prove a negative, i.e., that no license was required. Contacts to government agencies proved futile and unproductive, as no government agency was found to state the negative. Although the Employer provided a copy of the California statute proving that a licensed case coordinator referred to the supervision of patient care, and not to the supervision of other case coordinators, the CO found the rebuttal insufficient, specifically because a non-licensed person could only perform certain duties, such as teaching, training and supervision of other health care workers. The Employer also made an offer in the alternative to remove the requirements for duties that appeared to require a license and readvertise. An offer in the alternative is also known as "two bites of the apple", wherein the Employer tries to convince the CO that a requirement is not restrictive, but that if the CO does not agree, then the Employer would be willing to remove the restrictive requirement and readvertise in the alternative. However, in the instant case, as the Board viewed the matter, there were not restrictive requirements (only cases with restrictive requirements could be cured by an offer to readvertise). In the present case, the Board ruled that since some of the job duties required licensure, the removal of the duties would not just amount to a removal of restrictive requirements, but would actually change the job itself. Therefore, no offer in the alternative to readvertise could be granted.. (The application was denied by CO Martin Rios, San Francisco, and the denial was upheld by the Board.)

Incorrect DOT Used for Woodfinisher Supervisor
In Statewide Woodfinishing, Inc., 2003-INA-120 (BALCA, May 20, 2004), the Employer offered the position of Woodfinisher Supervisor, a job bearing an SVP 7 (up to four years training permitted), while the DOL assigned the title Supervisor, Quality Control (up to two years training required). According to the DOL, the Employer's requirements exceeded those permitted by the DOT. On appeal, the Board compared the two positions and noted that the best job title was the one chosen by the Employer, not by the DOL, and specifically noted that the job of supervisor required the ability to perform the duties of wood finisher, while the job of quality control simply required the ability to observe the quality of the items. (The application was denied by CO Martin Rios, San Francisco, but the denial was vacated and the application granted by the Board).

CO Given Chance to Revisit Minimum Requirements
In Guam T & Y Corp., 2003-INA-91 (BALCA, May 19, 2004) the Employer stipulated requirements of a B.S. in Architectural Engineering or Engineering, two years of experience in the job offered and eight years of experience in the related occupation of project manager. The CO misunderstood the requirements and read them as alternative, instead of cumulative. The Board held that the CO did not understand that the requirements were cumulative and ruled that the CO should be given a chance to question the validity of the cumulative experience requirements. (The application was denied by CO Martin Rios, San Francisco, but the denial was vacated and remanded to the CO by the Board).

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

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