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Joel Stewart's BALCA Review (November 30, 2004)

by Joel Stewart

Important BALCA Decisions

Enforcement of Wages by EDD for Controlled Standby
In Nacario's Home for Ambulatory Aged, 2003-INA-265 (BALCA, September 28, 2004), the employer offered the position of household domestic worker/caregiver. The CO requested documentation that the employer obtain a legal opinion from the State Labor Commissioner to prove that it imposes no conditions of employment contrary to California laws or regulations and that it is not requiring its employee to be on "controlled standby." Information submitted by W-2 records showed that the alien earned minimum wage and was not paid overtime or for required live-in or 24-hour per day on-call status. The CO alleged that under California labor law, an employee who is required to remain at the employer's place of business to respond to emergency calls is working and must be paid for on-call work. The test provided in Section 47.5.4 of the Manual of the Division of Labor Standards Enforcement states that "if an employee's time is so restricted that he cannot 'come and go as he pleases,' the employer is considered to have the employee on controlled standby. Since the Employer did not provide an opinion from the State Labor Commissioner to document compliance with the law, the Board upheld the final determination of the C.O. (Denied, San Francisco).

Applicant lacked Oracle skills but had years of experience
In Highdata Software Corp, 2003-INA-288 (BALCA, September 29, 2004), the employer offered the position of Systems Analyst/Administrator with special requirements to design, develop and implement customized software on Unix and NT platforms using Oracle RDBMS Tools, TCP/IP, SQL, PL/SQL, and Unix Shell Scripts. A U.S. worker submitted a resume showing a B.S. in Business Management rather than the B.S. in Computer Science specified by the Employer, however, she also revealed eighteen years of experience in computer systems, with the last seven years spent as a systems and senior IT manager. She also had knowledge of various computer operating systems including UNIX OS, Windows 98 and NT, and SQL. Oracle skills were written as a requirement on the ETA Form, but they did not appear in the newspaper ad or posting. Given the wide range of experience possessed by the U.S. worker, the CO objected to the Employer's rejection based on her resume for lack of Oracle skills. The Board agreed with the Employer and quoted the holding in Dearborn Public Schools, 1992-INA-222 (Dec. 7, 1993) (en banc), for the premise that "where an applicant's resume shows such a broad range of experience, education and training that it raises a reasonable possibility that the applicant meets all the employer's requirements, an employer must further investigate the applicant's credentials." In the instant case, the Board noted that the employer had improperly rejected a U.S. worker because the resume raised the reasonable possibility that the applicant was qualified, and the Employer had the burden to further investigate her credentials. (Denied, Boston, Massachusetts).

Belated attempt to amend ETA forms
In Green Acres Group Home, 2003-INA-263 (BALCA, September 28, 2004), the Employer offered the position of Caregiver with a combination of duties and restrictive requirements. When the CO objected to the duties and requirements, the Employer attempted to rebut by providing business necessity and simultaneously invoking the opportunity to readvertise if the CO did not accept the rebuttal documentation. Additionally, the CO had advised the Employer to choose one of multiple options to rebut the defects. The Employer chose to exercise not one but multiple options to cure the defects, and the CO denied, citing as a reason that the Employer failed to limit its rebuttal to one method of curing the deficiencies. The Board did not support the CO's interpretation about limiting the Employer's rebuttal, however, it did note that the employer's offer to readvertise lamentably was not unequivocal as required by the doctrine called "two bites of the apple". (Denied, San Francisco, California).

Untimely and insufficient request for review
In Flexy Foam, 2003-INA-280, 281 (BALCA, October 29, 2004), the Board analyzed how to count the number of days available for timely appeal as follows: (1) The time period for requesting review begins to run on the date following the date of the FD, not on the date of the Final Determination; (2) The deadline to respond is 35 days after the time period begins and does not permit extra days for mailing; (3) The request for review may be filed by certified mail no later than the 35th day; (4) A late filing may be overcome is the employer demonstrates excusable neglect. In the instant case, the request for review was due on July 11, 2003, but was not mailed until July 23, 2003. In addition to the late filing, the request for review simply stated that "the following request for review of the denial made upon this case is herein provided." No additional basis or reason for review was provided. The Board held that this type of request for review is insufficient, as it does not assign error to the CO's findings, make any other statement of disagreement with the CO, or state any grounds on which the review must be based. (Denied, San Francisco, California).

Ability to Pay Wages Not Documented
In Carlos Mery, 2003-INA-299 (BALCA, October 18, 2004), the CO asked the Employer to provide a tax return from 2001 and the year immediately preceding the filing of the application to document the ability to pay the wages for a domestic cook. The Employer submitted an unsigned 2001 tax return, along with a note that he entertains several times a week. The CO's request for a tax return from the year before the labor certification application was filed is unusual, and probably ultra vires, but the Board but held that based on the unsigned 2001 return there was not enough money shown to pay the wages of $26,000.00 to the alien. (Denied, New York, New York).

Testing job applicants
In Kawshar Mohammed, 2003-INA-297 (BALCA, October 18, 2004), the employer administered a test during the interview and rejected eight workers because they did not pass the test. The CO objected, because the ETA form did not state that passing a test as part of the hiring requirement. Furthermore, if a test were given, it would have to be common to the industry and administered to all applicants, not just to some. The CO asked the Employer for a copy of the test, the correct answers, the applicants' test materials and the passing score. The Employer stated on rebuttal that the applicants were not rejected on account of the test and but only because they did not have experience in the job offered. The Board also stated that questionnaires and practical tests were unstated requirements because they did not ask questions that would usually be asked in a routine job interview. Since the Employer did not document any independent evidence to support testing for bookkeepers as an industry-wide standard, the Board ultimately found that the employer had not complied with the CO's request for documents, a substantive requirement under the holding in Gencorp, 87-INA-659 (Jan. 13, 1988) (en banc). (Denied, New York, New York).

Additional Recent BALCA Denials Dealing with Repetitive, Cumulative Issues

  1. Domestic cook, specialty cuisine. Anita Cassandra, 2003-INA-239 (BALCA, September 28, 2004). (New York, New York).
  2. Domestic cook, specialty cuisine. Zenaida P. Gonzaga, 2003-INA-227 (BALCA, September 24, 2004). (New York, New York).
  3. Domestic cook, specialty cuisine. Jane S. Soudavar, 2003-INA-241 (BALCA, October 29, 2004). (New York, New York).
  4. Domestic cook, specialty cuisine. Ellen Kestenbaum, 2003-INA-301 (BALCA, October 18, 2004).
  5. Domestic cook, employer lacks ability to pay wages. Rajnish Kapoor, 2004-INA-240 (BALCA, September 28, 2004).
  6. Household Manager. Karim Amiryani, 2003-INA-226 (BALCA, September 28, 2004).
  7. Improper rejection of U.S workers. Fifth Avenue Drug and Surgical, 2003-INA-298 (BALCA, October 18, 2004).
  8. On call 24-hours per day. Igbante-Enriquez Care Home, 2003-INA-262, 267 (September 29, 2004).
  9. Improper rejection of U.S. workers. Kelly & Company, Inc., 2003-INA-292 (October 18, 2004).
  10. Improper rejection of U.S. workers. Platon Interiors, Inc., 2003-INA-275 (September 29, 2004).
  11. Improper rejection of U.S. workers. Evangelina Ramirez, 2003-INA-278 (BALCA, September 28, 2004).
  12. Improper rejection of U.S. workers. Vinmor Pools, Inc., 2003-INA-286 (BALCA, September 29, 2004).
  13. Improper rejection of U.S. workers. Econo Lodge, 2003-INA-291 (BALCA, September 29, 2004).
  14. Full-Time Job Opportunity. Robert L. Peterson, M.D., 2003-INA-289 (September 29, 2004).
  15. Full-Time Job Opportunity. Manuel da Cunha Construction, 2003-INA-294 (BALCA, September 29, 2004).
  16. Restrictive Requirements. Diamond Care Home, 2003-INA-264 (BALCA, September 28, 2004).
  17. Minimum Requirements. Palos Verdes Library District, 2003-INA-260
  18. (BALCA, September 28, 2004).

About The Author

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. Mr. Stewart contributes monthly BALCA case summaries to ILW.COM and writes special articles of interest on BALCA issues for AILA Monthly Mailing/Immigration Law Today. 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.