Joel Stewart's BALCA Review (July 20, 2004)
Employer Requested Social Security from US Worker
In Bliss Smulian, 2003-INA-171 (BALCA, June 16, 2004), the Employer asked referrals for their SS number during the recruitment process. Under the Immigration Reform and Control Act of 1986 (IRCA), the Employer may ask for a social security number, but not during the recruitment process. Upon offering a position to a job candidate, the Employer may ask for proof of ability to work in the U.S. The Employer's request for the SS number in this case was precipitous, because it was not permitted under IRCA. The DOL regulations state that the job offer in a labor certification proceeding is open to U.S. workers, defined as follows: "United States worker means any worker who is a U.S. citizen; is a U.S. national; is lawfully admitted for permanent residence; is granted the status of an alien lawfully admitted for permanent residence under 8 U.S.C. 1160(a) [special agricultural workers under IRCA] ; 1161(a) [replenishment agricultural workers under IRCA, repealed in 1994], or 1255a(a) [general amnesty entrants under IRCA]; is admitted as a refugee under 8 U.S.C. 1157; or is granted asylum under 8 U.S.C. 1158." Other employment authorized persons are not qualified to trump a job offer to an alien under the labor certification process. To determine if a referral is a U.S. worker, employers can inquire whether he or she falls into one of the protected classes described above. (Denial Upheld, New York, NY).
Proprietary knowledge of computer system
In Best Western, 2003-INA-123 (BALCA, June 8, 2004) the Employer required knowledge of a proprietary reservation system used primarily by Best Western. The alien gained the experience at another hotel in the Best Western group. The CO said that since the alien got experience by working in a related hotel, the job was not truly open to US workers. The Employer failed to show that the experience with the reservation system was not proprietary could have been gained with another hotel chain, and the Board found the requirement restrictive. (Denial of certification upheld, San Francisco, CA).
LPN held restrictive
In Emerald Terrace Convalescent Hospital, 2003-INA-17 (BALCA, June 17, 2004), the Employer offered the position of Licensed Practical Nurse (DOT Code 079.374-014), requiring two years experience in the job or in any related nursing position and a valid vocational license. Although the job of LPN commands an SVP of "six" and therefore permits two years of education, experience or training, the CO found the requirement restrictive because the alien was hired without a license. On rebuttal, the Employer documented that the alien passed the license exam in July 1998, prior to filing for a labor certification, however, at issue was the fact that the alien had been hired for the job before obtaining the license. The Board held that since the alien acquired the license after beginning current employment, the Employer had to prove that it would not be feasible to hire workers with less training or experience, a hypothesis extremely difficult to prove. (Denial of Labor Certification Upheld, San Francisco, California).
In Emily Walder, 2003-INA-134 (BALCA, June 18, 2004), the Employer employed a laboratory technician under a leasing arrangement. When it applied for labor certification on behalf of the leased alien, the CO questioned whether there was a bona fide full-time job opportunity, given that the alien worked for a leasing company and not for the Employer. On rebuttal, the Employer documented that the service agreement merely serves as a book-keeper and does not have supervision or control over the employee/alien. The Employer's payments to the leasing company were only sufficient to cover gross payroll, administrative fees, workers compensation and health insurance costs. Nevertheless, the CO denied and stated that the petitioner could not be the employer if the alien was working for a leasing company. The Board analyzed the relationship of the alien to the leasing company and to the employer/petitioner and noted that the leasing company did not employ the alien under the meaning of the Immigration and Nationality Act , since it did not supervise the alien's work nor did it determine the wages and benefits the alien would receive. They concluded that the leasing company could not be an employer as contemplated under the Act. The Board then reasoned that the Veterinarian was the actual employer for labor certification under the Act, but stressed that the instant decision was based on the unique circumstances presented, including the fact that the alien was hired by the petitioning employer prior to the retention of the service company. The Board held that on balance the terms, conditions and occupational environment of the leasing company are not contrary to Federal, State or local law, and there is a bona fide employment relationship between the Employer and the Alien. (Labor Certification Granted, San Francisco, CA).
More on the Ziegler Memo
In Motorola, Inc., 2003-INA-290 (BALCA, June 8, 2004), the CO denied an application filed under RIR, because the Employer had not complied with the lay-off provisions of the Ziegler Memo. You will recall that the Ziegler memo was illegal, because it stated that if a CO denies an RIR on the issue of laid-off workers, the CO should issue an NOF requiring the names of the workers, and if the Employer does not provide the information as rebuttal information, then the CO should issue a denial. However, contrary to the Ziegler memo, the regulations require the CO to remand an RIR for further recruitment if the application for RIR is rejected. This scenario was visited in Compaq Computer Corp, 2002-INA-249, wherein the Board held that the regulations require the CO to remand for further recruitment and not to issue a Notice of Findings. In the instant case, the Board held that labor certification was improperly denied and ordered the CO to remand for further recruitment per the regulations. (Remanded, Boston, MA).
Mix-up on date of ad
In Plexus Guest Home, 2003-INA-22 (BALCA, June 16, 2004), the Employer was instructed to run a Sunday ad for the position of Cook/Diet. The Employer stated that he had placed a Sunday ad but that it had been placed in the wrong edition and on the wrong date. The CO did not issue an NOF and opportunity to correct but denied the application for failure to advertise properly. On review, the Board held that the Employer was denied a chance to correct the error because the error in advertising was first stated in a Final Determination and not in an NOF. (Remanded, San Francisco, CA).
Polish Speaking Fence Welders
In Tony's Fence Company, Inc., 2003-INA-28 (BALCA, June 18, 2004), the Employer required a Polish speaking fence welder due to the fact that the entire staff was comprised of native Polish speakers with a minimal fluency in English. Using a business necessity analysis patterned after Lucky Horse Fashion, Inc., the Board noted that it must determine whether the foreign language requirement bears a reasonable relationship to the occupation itself, in the context of the employer's business, and whether the language is essential to perform the job duties. The only rebuttal evidence provided by the Employer established that the entire staff was native Polish and had minimal fluency in English, but did not explain how the Polish language related to the job duties of fence welder. The Board then held that these facts did not establish that the use of Polish speakers has a reasonable relationship to the occupation of welder. (Denied, Boston, MA.)
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
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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