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Joel Stewart's BALCA Review (February 1, 2005)

by Joel Stewart

NOF Held Improper Under Ziegler Memo

In Sun Microsystems, Inc., 2004-INA-271 (BALCA,November 18, 2004), the C.O. followed the Ziegler Memo which authorized the CO to issue a Notice of Findings after denying an application for RIR because of failure to respond to inquiries about layoffs. The Ziegler Memo was in direct conflict with the regulations which did not authorize the CO to issue an NOF, but only to order additional recruitment after issuing an NOF. The Board found the Ziegler Memo contrary to the regulations in Compaq Computer Corp., 2002-INA-249-253, 261 (Sept. 3, 2003), and reached the same results in similar cases like this. The Board held that the C.O. must provide for regular recruitment instead of denying the application. (Remanded, Arizona).

Ashbrook-Simon-Hartley Not Applicable Without Experience in Duties

In Metro Bank, N.A., 2004-INA-20 (BALCA, November 30, 2004), the Employer advertised for a credit analyst, with no experience required, but requiring a Bachelor's degree in finance or
economics. The employer claimed that two applicants with Bachelor's degrees were not qualified because they could not perform the job duties. The CO denied because there were no experience requirements listed on the ETA Forms Under Ashbrook Simon Hartley, the Circuit Court of Appeals held that an Employer could reject applicants if they could not perform the required job duties, even if they possessed the minimum requirements stated on the ETA form. However, in the instant case there was no experience required in any of the job duties. The Board held that without any experience requirement listed on the ETA Forms, the Employer could not reject U.S. workers for inability to perform the job duties, provided that the applicants possessed the stated minimum educational requirements. (Denied, Texas).

Evolving Standard for NOF's Following a Request for RIR

In Beith Aharon, 2003-INA-300 (BALCA, November 18, 2004), the Employer filed an application for the position of Cantor with two years of experience required. After failing to find evidence of the existence of the employer's place of business, the C.O. issued a Notice of Findings that challenged the application on the basis of a lack of bona fide job opportunity. The Employer was asked to provide evidence of an ongoing business, however, the Employer did not provide convincing evidence. In the matter of Compaq Computer Corp., 2002-INA-249-253, 261 (Sept. 3, 2003), the panel held that where the CO denies a request for reduction in recruitment, the proper procedure is to remand the case to the State Workforce Agency ("SWA") for regular labor certification processing and not to issue a Notice of Findings under the procedures specified in GAL, 1-97, Change 1 (popularly know as the "Ziegler Memorandum").

However, in Houston's Restaurant, 2003-INA-237 (Sept. 27, 2004), the Board held that the where the "CO's denial of labor certification was based, not on a denial of the merits of the RIR request, but on the failure to comply with a reasonable time deadline the CO may properly deny the application outright rather than remanding to the SWA for regular processing, even if the case is currently before the CO in the posture of an RIR request. Also in Houston's the Board observed that a CO might be able to skip ruling on an RIR request and go straight to the ultimate question of whether the labor certification should be denied where the application is apparently fundamentally flawed. The Board added in a footnote, "Such a procedure may make sense where the perceived flaw in the application is grounded in reasons unrelated to whether the pre-application recruitment efforts were sufficient.

An employer who is not able to establish that it can offer a bona fide job opportunity has presented an application that is so fundamentally flawed that it would serve no purpose to remand the case for regular processing. In such a case, the CO may deny the application outright rather than remand for regular processing, even if the case was presented in an RIR posture. The Board went on to opine that its decision was not intended to subsume all of the regulations and that its decision in the instant case is "not an invitation for the CO to raise the bona fide job opportunity in every RIR application in order to avoid having to remand a case for regular recruitment if the RIR is denied." Rather, the CO should only raise the bona fide job opportunity issue if good cause exists for suspecting that the job offer is not bona fide or that the employer does not have a viable business to which applicants may be referred. This panel will not affirm the outright denial of a labor certification application presented to the CO in a RIR posture if there is any indication that failure to remand to the SWA would constitute a denial of due process." The Board also warned that if the issues of a bona fide job opportunity and/or ability to pay are clearly raised by the CO in a NOF based on a reasonable suspicion, an employer who fails to address those issues in rebuttal cannot reasonably expect to be able to remedy the problem later in a remand to the SWA. (Denied, NY).

More Seasonal Landscapers Held Ineligible for Certification

In Good Earth Gardens Centers, 2003-INA-284 (BALCA, November 5, 2004), the Employer filed an application for a landscaper in a northern city. The C.O. challenged the position as not being full-time. Although the winter recess was only 4-6 weeks, Board agreed with the C.O. that the job was not full-time due to the cold months when no gardening could be performed. A sub-issue was the fact that most of the workers had a longer winter-break. (Denied, Philadelphia, PA).

Trilingual Wholesaler Failed Business Necessity Test

In J N Distributor, 2003-INA-242 (BALCA, November 3, 2004), the Employer offered the position of wholesaler for sundry goods with a language requirement, specifically Russian, Polish and Ukranian, in addition to English. The Employer maintained that the position required foreign language skills to work with customers. However, when asked to provide documentation, the Employer was unable to prove the two prongs of the business necessity test, i.e., that the requirement foreign language requirements had a reasonable relationship to the job and that they are essential to perform the job duties in a reasonable manner. The Board has usually denied applications for employers with multiple langue requirements. In the instant case, the Board held that the Employer failed, to document how often problems with customer orders occur and what percentage of the problems with customer orders occur with those who require a foreign language speaker. (Denied, Philadelphia, PA).

Construction Jobs Are Filled by Aliens in California

In Future Construction, 2003-INA-243 (BALCA, November 30, 2004), the Employer ceased to operate as a corporation and had no employees other than contract workers who were supervised on construction jobs. The CO asked the Employer to provide a California TIN. Since the Employer had no evidence of employees, the Board held that the job offer did not meet the definition of a full-time employee. (San Francisco, CA).

Master Roaster to Prepare Gourmet Coffee

In JBR Gourmet Foods, 2003-INA-279 (BALCA, November 18, 2004), the Employer required a master roaster to supervise workers to grind, blend, roast, and package gourmet coffees, designate ingredients, train workers, monitor operation of the equipment, and assess the finished product for specified viscosity, texture, color, and taste. The CO noted that the alien had gained experience on the job with the Employer and issued a Notice of Findings. On rebuttal, the Employer stated that training a new worker would severely limit the quantity, quality and consistency of coffee during the training period. The Board applied the Delitizer test to determine whether the position the supervisory position would be different from the position the alien held while being trained. The Board noted that while the Employer's rebuttal letter provided a lengthy and detailed discussion of the relevant job duties and responsibilities, no documentation was provided to show that the two positions are separate, dissimilar, and distinct. (Denied, San Francisco, CA).

In Takeo Kawamara M.D. and Associates, 2004-INA-31 (BALCA, December 6, 2004), the Employer offered the position of Medical Services Manager but rejected a U.S. worker who met the minimum requirements because the applicant's resume mentioned no computer skills. The Board has consistently held that Employers must inquire into the applicants' resumes to determine if they might be qualified and not just make superficial determinations of qualifications based on the actual resumes themselves. In the instant case, the Employer failed to document that the applicant was not qualified on the basis of a combination of experience, education or training. (Denied, Boston, Mass.).

About The Author

For Labor Certification by Joel Stewart - "THE PERM BOOK", see here.

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.

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