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Joel Stewart's BALCA Review (May 10, 2005)

by Joel Stewart

Beauty Sales Manager Gained Experience as Beautician (pre-PERM)

In Sanchez Elvina, Inc. d/b/a Ely-Lyn House of Beauty, 2004-INA-8 (BALCA, February 25, 2005), the Employer filed a request for reduction in RIR for a Beauty Sales Manager, however, the C.O. issued a Notice of Findings proposing to deny the application, since the alien was hired as a Beautician and trained by the employer. Using the Delitizer analysis, the Employer detailed the dissimilarities of the two positions in its rebuttal, especially differences in the level of responsibility and salary. The Board agreed with the employer, finding the positions to be sufficiently dissimilar to permit training with the same employer. Note: Delitizer is a pre-PERM case where the Board interpreted the need to document the dissimilarity of jobs if the alien gained experience with the same employer. Delitizer suggests a series of flexible criteria. Under PERM, the Delitizer decision has been adopted and codified at 656.17(i)(5)(ii), and it is applied now with a bright line test. The Employer need only prove that the positions are not substantially comparable, meaning that the new job requires performance of different job duties more than 50 percent of the time. The Board reversed denial and stated that since the job had been filed RIR, the CO must either grant the decision or remand to the SWA for further recruitment. (San Francisco, California).

Experience gained with Canadian affiliate prohibited under PERM

In IBM Corporation, 2004-INA-12 (BALCA, March 4, 2005), the employer sought to transfer an alien gained who gained experience with IBM in Canada to a position at IBM in Vermont. Using the per-PERM Inmos analysis, the Board reasoned that the companies, although different corporations, with separate presidents, management, research and development and human resources, should be treated as if they were one company. The Board merely stated laconically, "…there appears to be no basis to support a theory that the two IBM corporations are different businesses with nothing in common except a corporate entity connection....On this record, it is determined that IBM Corporation of Vermont and IBM Canada are considered one and the same employer…." Ironically, if this case had been decided under PERM, it should not have been denied, since PERM permits experience gained at an affiliate or subsidiary if the two companies do not use the same FEIN number. (Boston, Massachusetts).

Two Bites of the Apple Permitted after NOF

In Cottonwood Home, 2004-INA-2 (BALCA, March 11, 2005), the employer received a notice of findings to document a live-in requirement and combination of job duties. Under the principle enunciated in the O'Mara case, the Employer, in response to an NOF, can offer to cure the defect by proffering business necessity, and if the C.O. does not find the documentation to be sufficient, then the Employer may remove the restrictive requirement and re-advertise the job. Under this doctrine, the C.O. must provide a second chance to cure the defect, hence the phrase second bite of the apple! In the instant case, the C.O. told the Employer either to delete and re-advertise or justify the business necessity and did not give the employer a second bite. Therefore the Board remanded to the C.O. to give the employer an opportunity to remove the restrictive requirements and re-advertise without the restrictive requirements. (San Francisco, California).

Employer refers workers out on contract

In Professional Staffing Services of America, 2004-INA-7 (BALCA, March 7, 2005), the Employer required an Accountant, but the job was created to provide contract labor to third parties. When the C.O. required information to prove a permanent, full-time position, the Employer provided contracts between itself and two corporate clients. However, the Board upheld the C.O.'s denial, citing the Employer's failure to provide specific information to document a full-time, permanent position. The Board complained that the staffing agreements provided by the Employer were only general, and did not stipulate the number of hours, length of employment during referrals, or number of workers to be referred. ( San Francisco, California).

Ziegler exceptions carved out where further recruitment held futile

In Madni, Inc., t/a Silver and Watch Palace, 2004-INA-75 (BALCA, March 30, 2005), C.O. had denied an RIR application and transmitted the case to BALCA, instead of ordering additional recruitment as required by the pre-PERM regulations. When the Ziegler memo first came out, ordering C.O.'s to issue a NOF in lay-off cases, instead of remanding for additional recruitment, the Board held that the C.O. must follow the regulations, i.e., remand for further recruitment instead of denying. However, some exceptions have been carved out to this rule, where the employer fails to meet a deadline set by the CO for responding to a request or where the application is so fundamentally flawed that a remand would be pointless. The Board also permits the CO to deny if the Employer fails to establish sufficiency of funds to pay the Alien's wages for the position. Such cases are considered to be so fundamentally flawed that a remand would be pointless. Since the C.O. had failed to consider evidence provided by the Employer with a request for reconsideration, the Board remanded to the C.O. for consideration of the financial evidence. (Philadelphia, Pennsylvania).

Ziegler memo may not be used to request interlocutory review

In Siemens Energy and Automoation, Inc., 2005-INA-1 (BALCA, February 11, 2005), the Board considered the Employer's request for interlocutory review after denial of an RIR without first remanding to the SWA for regular recruitment. Since a denial of RIR is not considered to be a final decision of the C.O., the Board held that the Employer's request for accelerated review was in effect a request for interlocutory. The Board then cited several exceptions to the general rule that interlocutory appeals are disfavored, but found that the instant petition failed to meet the exceptional criteria for interlocutory appeal.

About The Author

Joel Stewart works exclusively in the area of immigration law. Joel Stewart is the editor and author of THE PERM BOOK. 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.