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Joel Stewart's BALCA Review (August 12, 2004)

by Joel Stewart, Esq.

Joel Stewart Important BALCA Decisions

CO Considered US Worker Qualified Even Without Degree

In Richline Textile, Inc., 2003-INA-198 (BALCA, July 6, 2004), the Employer required an office manager with a Bachelor's Degree and two years experience in the job offered. Under long-standing SVP guidelines, the position commands level "7" and therefore permits up to four years experience, education or training. The Employer rejected the job referral without an interview because he did not possess a Bachelor's Degree, although the referral did have a two-year associate degree. Since a Bachelor's Degree counts as two years SVP, and the total preparation time for the position was determined to be four years SVP, the CO objected to a rejection of the worker for not possessing a Bachelor's Degree and stated that the US referral might have been qualified since he possessed an Associates Degree and seven years experience. Although the Board has previously held that only an employer may properly judge a U.S. job referral's qualifications as determined in the job interview, it nevertheless held that the CO was correct in determining this US job referral qualified because with a total preparation time of almost ten years, the information on the resume established that the qualifications "met the employer's own minimum job requirements" of four years experience, education or training. Note: The Employer may indicate why a referral should not be considered qualified by a combination of related experience, education and training, however, an interview would normally be necessary to determine whether the referral has such an equivalency. (Application Denied, San Francisco, California).

Attorney Agent as Remitter of Certified Mail

In Verdugo Construction, 2003-INA-158 (BALCA, July 14, 2004), the Employer's attorney sent certified letters to job applicants scheduling job interviews for the referrals and advising them how to get in contact with the employer, however, the CO complained that the certified mail receipts (not the letters themselves) bore the attorney's return address and alleged that the Employer had violated the regulations that prohibit the attorney or agent from interviewing or considering U.S. workers. The Employer argued on rebuttal that the letters were on the employer's letterhead, the interviews were scheduled at the employer's place of business and the interviews were scheduled with the employer himself. The Employer further argued that the agent had used his return address on the return receipt postal cards for their safekeeping. Although the Employer is held to an unusually high level of BALCA-made rules and probative requirements to document the results of recruitment, the Board panel made the quixotic statement that "the alien's agent would have to communicate with the Employer regarding the return receipts, or, at the very least, the agent would have to notify the employer as to which return receipts had been received," and then issued its holding as a conclusory statement, "this involvement is a per se violation of the regulations." Ironically, in a decision issued the same day by the same panel, Jersey Precast Corp, 2003-INA-174 (BALCA, July 14, 2004) the Board upheld denial in part because the Employer had not entrusted certified mail receipts to its agent for safekeeping after mailing letters to three job referrals and could not subsequently find the certified mail receipts to provide to the C.O. as proof of contact. (Both Applications Denied, San Francisco, California).

Hairdresser Required for Translations

In Etreby Computer Co., Inc., 2003-INA-131 (BALCA, June 30, 2004), the Employer required a Translator to interpret German-language software programs for hairstyling and hair designing. The minimum requirements for the position of translator were two years experience in the job offered or two years experience in hairstyling, hairdressing or hair designing. The local office advised that the position appeared to contain a combination of restrictive, alternative job duties in violation of the ruling in Kellogg, 1994-INA-465, a decision that holds alternative requirements to be restrictive if the alternative requirements are not substantially similar to the primary requirements. In the instant case, the Board found that the alternative requirements of experience as a hairdresser were restrictive because they were not substantially related to the main requirements of experience as translator. Although the Employer withdrew the restrictive alternative experience requirements, he continued to insist that the programmer must have a license in cosmetology to provide accurate translations, and the Board held that the cosmetology license requirement was restrictive for the position of computer program translations. (Application denied, San Francisco, CA).

Amendment of Job Description Raises Question about Bona Fide Job

In East West Clinic, 2003-INA-153 (BALCA, July 6, 2004), the Employer offered the position of Medical Records Administrator, but then amended its job description by changing all of the duties in the job offer. Doubting that the Employer had a bona fide job offer, the CO asked whether the amended job was newly created and why the position was needed. In rebuttal, the Employer responded that the current job holder would be leaving shortly. The CO then reasoned that since the current job-holder had not yet left, there could be no current job opening available. Applying the "totality of the circumstances" test, the Board found that there was no indication in the record when or if the current job holder would vacate the position and held that the CO correctly determined that there was no job opening to which a U.S. worker could be referred. (Application denied, San Francisco, CA).

Employer Contributed to Delay in Transmittal of Resumes from Referrals

In Elegant Interiors, 2003-INA-77 (BALCA, June 30, 2004), the employer advised DOL about a change of address three weeks after the ad was run during recruitment, resulting in a delay in the transmittal of resumes from the DOL. The Board reasoned that if the delay was caused solely by the DOL, it could be excused, however, if the Employer contributed to the delay, then certification must be denied, unless a reasonable justification is established. Since the Employer had no excuse to provide an untimely notification of change of address, the Board held that the employer was at fault and the delay could not be excused. (Application denied, San Francisco, CA).

Job Referrals Invited to Apply for Job

In Rondale Construction, Inc., 2003-INA-214 (BALCA, June 30, 2004) the CO objected to a letter sent by the Employer to U.S. job referrals. The letter stated, "If you feel that you have the necessary experience and are interested in this position, please call me to set up an interview." According to DOL policy, this type of letter is an intermediate stage in the recruitment process that discourages U.S. job referrals by requiring those who have already sent their resumes or applications to reapply by sending a response to the letter. Although the letter is considered objectionable, the CO mentioned the objection for the first time in the Final Determination, thus denying the Employer a chance to respond to the finding. Consequently, the Board remanded to allow a rebuttal to the objection. Note: In actual fact, the Board has ruled many times on this issue and has consistently held that such letters are unequivocal evidence of bad faith recruitment. Since there is virtually no "cure " for a finding of bad faith recruitment, an Employer in this situation might win the battle but lose the war. The Board's decision maintains an appearance of propriety and upholds the premise that a C.O. can not make a final determination without providing an opportunity for rebuttal. (Remanded, San Francisco, CA).

Low Result for Designer Developer on Interview Evaluation

In Reliance Technologies, Inc., 2003-INA-216 (BALCA, July 1, 2004), the employer rated job applicants on a scale of 1-10 in four technical subject areas. The referral scored 12 out of a possible 40 points. The Employer did not show how it arrived at the scale or that it was a normal practice. Noting that the job was entry level, the CO issued a Notice of Findings stating that the referral was qualified because he possessed the minimum requirements of a B.S. in computer science and two years experience. The Employer argued on rebuttal that the U.S. job referral had limited experience in databases, database design and software languages, but the C.O. denied the application. On appeal, the Board questioned whether the specific technical subjects were set forth on the ETA forms and whether the job duties required the experience to be performed adequately. The Employer failed to provide timely rebuttal evidence, however, and the Board upheld the CO's decision. (Denied, San Francisco, CA).

Additional Recent BALCA Decisions Dealing with Repetitive, Cumulative Issues

1. Inconsistent Prior Statements
Interstate Plumbing & Air Conditioning, Inc., 2003-INA-95, (BALCA, July 1, 2004).
2. Failure to Prove Alien was not Owner of Business
Maxine R. Newman, Ph.D., 2003-INA-2003 (BALCA, July 14, 2004).
3. U.S. Referral Held Fully Qualified for Position
South Hills Country Home, 2003-INA-197 (BALCA, July 14, 2004).
4. Lengthy Delay to Contact U.S. Job Referrals
Storage & Relocation Services, 2003-INA-146 (BALCA, July 8, 2004).
5. Letters to U.S. Job Referrals Failed to Identify Employer
Regency Pet, 2003-INA-200 (BALCA, July 6, 2004).
6. Lengthy Delay to Contact U.S. Job Referrals
Metal Tek, 2003-INA-150 (BALCA, July 6, 2004).
7. Lack of Full-Time Landscaper Position in Cold Climate
Rose Landscaping, 2003-INA-196 (BALCA, July 6, 2004).
8. Unstated Requirements Imposed During Recruitment
Barkat Enterprises, 2003-INA-141 (BALCA, July 6, 2040).
9. Minimum Requirements Exceeded SVP
Rose Celia Rosato, 2003-INA-180 (BALCA, July 13, 2004).
10. Failure to Provide Documentation to CO
Integrity Environmental Consultants, Inc. 2003-INA-92 (BALCA, July 1, 2004).
11. Appeal Evidence Submitted After Final Determination
Active Lifestyle for Older Adults, Inc. 2003-INA-213 (BALCA, July 6, 2004).
12. Failure to Provide Documentation to CO
Ya Rub Inc., 2003-INA-172 (BALCA, July 14, 2004).
13. Alien Gained Experience with Employer
Pioneer Electronics, 2003-INA-152 (BALCA, July 14, 2004).
14. Two Years Experience Restrictive for Shipping Clerk
Jane Doe International, 2003-INA-170 (BALCA, July 6, 2004).
15. No Grounds Stated on Review
Fish Creek Ranch, LLC, 2003-INA-138 (BALCA, July 8, 2004).
16. Unstated Requirements Imposed During Recruitment
Amy & Philippe Heilberg, 2003-INA-173 (BALCA, July 14, 2004).
17. No Proof of Contact with U.S. Job Referrals
Jersey Precast Corp., 2003-INA-174 (BALCA, July 14, 2004).
18. B.S. Held Restrictive for Medical Assistant
Excel Care Clinic, Inc., 2003-INA-147 (BALCA, July 8, 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

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