Joel Stewart's BALCA Review (October 18, 2004)
by Joel Stewart
Important BALCA Decisions
In Houston's Restaurant, 2003-INA-237 (BALCA, September 27, 2004), the Employer did not provide a timely response to the CO, and instead of remanding to the local office, the CO denied and sent to BALCA for review. Normally the CO's denial of RIR cannot result in a Notice of Findings or Final Determination per the regulations and the decision in Compaq Computer Corp., 2002-INA-249 (BALCA, September 3, 2003). In the instant case, where the Employer was three months late in responding to an NOF, the Board held that the CO properly denied the application outright rather than remanding to the SWA for regular processing, even though the case was currently before the CO in the posture of an RIR request. (Application Denied, Philadelphia).
Contract Worker Raises Serious Questions
In Joe's Auto Body, 2003-INA-244 (BALCA, September 8, 2004), the CO alleged that the Employer and Alien worked as associates for some time, and that the employee position was only being created for the labor certification application. The CO requested tax information from the Employer and the alien, to determine whether the Employer was reporting wages under federal or state employment tax laws and whether the alien was a contract worker or an employee. The alien submitted that he had been paid case for several years and that starting in 2001 he had filed taxes as an independent contractor. The Board reasoned that the employer's documentation raised "serious questions about whether a valid employment relationship exists." The Board noted that the Employer did not provide accounting records or documents to support the assertion that the Alien had been paid in cash, or that the source of the income on the Alien's tax return had been payments from the Employer. Finally, the Board concluded that the Employer failed to provide relevant documentation requested by the CO and reasonably obtainable by the Employer. (Denied, San Francisco).
Contract Workers Rarely Certifiable
In Scott Avenue Builders, 2003-INA-296 (BALCA, September 27, 2004), the Board issued stern warnings about Employer's trying to certify workers who are characterized as contract workers. The Employer had a carpentry business and was not paying wages to salaried employees. Instead, the Employer issued 1099-MISC to its workers. Noting that employment under 20 CFR 656.3 is defined as full-time employment for an employer other than oneself, the CO found that the Employer violated the regulations by failing to document the existence of an employer-employee relationship. Although the regulations do not proscribe certification for independent contractors, an employer who seeks to have a contract employee certified "must read a narrow path." Furthermore, labor certification will not be granted when unlawful terms or conditions of employment exist, such as misclassification of employees to avoid legal obligations of employment (payment of payroll taxes, etc.). In the instant case, the case was remanded on technical grounds for further fact-finding on the issue of a bona fide employer-employee relationship. (Remanded, New York).
Relationship Between Employer and Alien
In Aqua Air Enterprises, 2003-INA-80 (BALCA, September 2, 2004), since the Owner/Director held the position of Sales Engineer, prior to hiring the alien, the CO asked the employer to prove that there was a major change in the business operation which caused/s the job to be created. Although the Employer stated in rebuttal that he wanted to devote time to other business matters, the Board held that the statement did not constitute adequate documentation. In a footnote, the Board also stated that there was the suggestion of a relationship between the Employer and the Alien, since they had both attended the University of Belgrade and received degrees in Agricultural Engineering on the same date. (Application Denied, San Francisco).
California Teaching License not Ministerial in Nature
In Aspire Public Schools, 2003-INA-254 (BALCA, September 9, 2004), the Employer stated that the alien was qualified for the position of Teacher while waiting for the results of the CBEST (California Basic Educational Skills Test) and that she could work as an assistant teacher on an emergency credential. Under board-made policy, the Employer may not obtain certification for an alien not fully qualified, unless the licensing or certification is purely ministerial in nature. While lack of licensing is not a per se bar to certification, the Employer must prove that the process is ministerial and involves a relatively short process. In this case, the Board held that the successful completion of the teaching exam "can hardly be called 'ministerial' in nature." Rather than upholding the denial, the Board remanded the case to the C.O., since a request for RIR can only result in a denial of the RIR and should not result in a Final Determination. (Remanded, San Francisco).
More on Suppressed Job Orders for Schedule B Jobs in California
In Christopher Fries of Bretano House, 2003-INA-247 (BALCA, September 7, 2004), the Board reviewed another case in which the Employer had requested a Schedule B waiver along with an assertion that the EDD had run a "suppressed" job order. A "suppressed" job order is in which the EDD maintains control of the workers referred for the job. The practice of the EDD is not to issue written confirmation that the job order had been suppressed, but only to advise the Employer verbally that the job order had been placed and suppressed. The CD held that the Employer had erred by not providing written confirmation from the Employer, even though the EDD does not provide a written confirmation. The Board held on appeal that the Employer failed to meet its responsibility to provide directly relevant and reasonably obtainable documentation that is requested by the CO. The Board also indicated that the Employer had not stated why it had not provided a written confirmation that the job order was suppressed. If the Employer had made its request to the EDD for a statement documenting the suppressed job order, and if the EDD had refused to provide it, the Employer may have met its responsibility to provide documentation that is reasonably requested and obtainable, i.e., no responsibility to provide proof of suppression if the local office refuses to provide it. (Application Denied, San Francisco).
Job Applicant's Long-Term Goal Is to Work Elsewhere
In Beth and David Dassa, 2003-INA-251 (BALCA, September 8, 2004), the Employer rejected a worker because his long term goals to obtain employment in management were inconsistent with the position of secretary. The Board held that the Employer's statement that the applicant had stated that he would not be available long-term to work as a secretary was not documented and that there were no proof that the job required a lengthy period of on-the-job training, such that would justify a long-term commitment from the job applicant. (Labor Certification Denied, San Francisco).
Employer's Agent Mishandled Rebuttal
In Gabriele and Ivana Difederico, 2003-INA-283 (BALCA, September 27, 2004), the CO requested the Employer respond to twelve questions to establish whether a bona fide job offer existed for the position of cook. The Employer's Agent did not transmit the questions in timely manner to the Employer, and the case was denied. The Employer then filed a motion to reconsider, based on the fact that the twelve questions had not been available due to the misfeasance of the agent. When the matter came before the Board, when rebuttal material is not previously available, then reconsideration is appropriate. In the instant case, the Board held that the negligence by the agent rendered the material unavailable to the Employer, and the Employer was entitled to a chance to present the material for the first time in a motion to reconsider. (Remanded, Boston).
Full-Time Position for Choir Director Denied
In Open Evangelical Church, 2003-INA-225 (BALCA, September 7, 2004), the Board considered whether the position of full-time Choir Director was a bona fide job opportunity. The Employer asserted that the alien would be required to work 41.5 hours per week. At issue were actual worship times amounting to about 12.5 hours per week, with the remaining hours dedicated to preparation time. The Board adopted the totality of the circumstances test, including percentage of income to pay the alien, total number of hours of proposed work, industry standard, credibility and subjective motives. Noting that the church had approximately 75 members, as opposed to larger churches with 600-5000 members, plus a lease that permitted only limited part-time use of the facilities, the Board concluded that the Employer had failed to document a bona fide full-time job offer. (Denied, San Francisco).
Alien's Experience Gained as Outside Consultant
In Orange County Sanitation District, 2003-INA-261 (BALCA, September 27, 2004), the employer required a Bachelor's Degree in computer engineering and two years of experience as a Programmer Analyst. Some experience was gained working for the employer as a consultant; however, the Employer provided additional documentation of the alien's experience, gained prior to working for the Employer. When the CO denied the application, the Board held that the CO could not make an erroneous assumption and ignore the employer's documentation or prior experience. (Denied, San Francisco).
Additional Recent BALCA Decisions Dealing with Repetitive, Cumulative Issues
Joel Stewart works exclusively in the area of immigration law. 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. From 1988 to 2004, Mr. Stewart wrote the monthly BALCA Case Summaries for AILA Monthly Mailing/Immigration Law Today and now contributes monthly summaries to ILW.COM. He has also authored Process and Procedure at the U.S. Consulates and Embassies in Brazil and Portuguese for AILA for many years. Fluent in Portuguese, Spanish, French, and Russian, Mr. Stewart specialized in Romance and Slavic Linguistics before receiving a J.D. from the University of Connecticut School of Law, and is a partner at the firm of Fowler-White-Burnett in Miami, Florida.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.