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Bloggings: March 26, 2008

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

March 26, 2008
Nothing New Under The Pre BALCA Sun

For those of you have not noticed, BALCA has been churning out decisions, not only about the new PERM rule, but also about backlog cases. Recent pre-PERM decisions are actually restatements of earlier issues that are familiar to experienced practitioners.

In fact, recent BALCA cases have dealt with familiar questions like full-time employment for gardeners, employing one's self, and delayed interviews for U.S. workers. Although I reviewed all the BALCA decisions from 1987 until a few years ago for AILA and ILW, I took a break when the new PERM rule came out so I could concentrate on editing the PERM BOOK and in large part because I found the BALCA cases had become repetitive and cumulative. For this occasion, however, I decided to revisit some recent BALCA cases, and communicate my impressions to you, the readers of this Blog.

Full-Time Year-Round Permanent Employment. According to the Almnac, gardens are annual, not perennial,  at least in the North of this grand country, and therefore Employers cannot have full-time gardeners. As a pundit once stated, you can't have it because you don't need it. Decided recently is the case of Rankin Landscaping, Inc., 2007-INA-00057, January 16, 2008, wherein the Board reiterated its long-standing position that gardeners, groundskeepers and the like are jobs whose duties can only be performed ten months or less during the year and must therefore be deinfed as seasonal rather than permanent, full-time employment. This principal was established at least 15 years ago in Vito Volpe Landscaping, 1991-INA-300, (Sept. 29, 1993)(en banc). The Board's reasoning in this line of cases is that workers are performing less than permanent full-time employment. Factors that have been taken into consideration are whether the workers collect unemployment insurance during the seasonal layoffs or whether payment is spread out over the entire year. Teachers have been distinguished and held to be engaged in full-time employment because they are paid year-round and, well, because the Board says they are. The Board has often commented that if the job is not full-time, the employer should consider applying for H-2B visas, which also require certification of non-availability from DOL. This is great advice except that H-2B visas are not always available.

Will BALCA rule differently under the PERM rule? It is unlikely, since the requirement for full-time employment has been continued in PERM and there is nothing in PERM that would require the Board to change its point of view. Hence one may assume that all PERM cases should always be year-round employment opportunities all the time!

Gaining experience on the job in the pre-PERM world is another taboo. Although the regulations permitted on-the-job training in certain circumstances, i.e.,  that if the Alien did not have the requisite experience prior to being hired by the Employer, or by showing that it is not presently feasible to hire a worker with less than the qualifications now being required and that the job existed prior to hiring the Alien, in practice employers were rarely successful in proving non-feasibility. And so it was in a recent BALCA case, Matter of Professional Staffing Services of America, 2007-INA-00058, the Board reiterated its philosophy: "Under section 656.21(b)(5), an employer must demonstrate that the requirements it specifies for the job are its actual minimum requirements and that it has not hired the alien or other workers with less training or experience for jobs similar to the one offered. An employer violates section 656.21(b)(5) if it hired the alien with lower qualifications than it is now requiring and has not documented that it is now not feasible to hire a U.S. worker without that training or experience. Capriccio's Restaurant, 1990-INA-480 (Jan. 7, 1992); Office-Plus, Inc., 1990-INA-184 (Dec. 19, 1991); Gerson Industries, 1990-INA-190 (Dec. 19, 1991); Rosiello Dental Laboratory, 1988-INA-104 (Dec. 22, 1988); MMMats, Inc., 1987-INA-540 (Nov. 24, 1987)." In this long line of cases, the Board never upheld the Employer's point of view.

Under PERM, the possibility of obtaining certification for a worker trained on the job is actually more likely than before, since the PERM rule quantifies the training requirement. It states, to put it in plain language, that the duties must be more than 50% dissimilar in the new job than the old. This test is more of a mathematical test than the previous requirement to prove infeasibility. It appears that under PERM, the Employer may expect to prevail, if the jobs are indeed different. The fact that the jobs are described as different occupations on the O*Net should also be a positive factor.

Applying for certification for one's self is strictly forbidden in labor certification land. This has long required the employer to show that the alien is not in control of the employer or does not own the employment entity. In an interesting twist, in ATI Consultores, 2007-INA-00064, an employer tried to prove that because the alien (who was also the employer) had an E-1 visa, certification should be granted. The Board rejected this idea and invoked the argument set forth in  Modular Container Systems, Inc., 1989-INA-228 (July 16, 1991) (en banc), "if the alien or close family members have a substantial ownership interest in the sponsoring employer, the burden is on the employer to establish that employment of the alien is not tantamount to self-employment, and therefore a per se bar to labor certification.” Under the Board's standard, the fact that an alien has obtained an E-1or E-2 visa is virtually incontrovertible evidence that he or she cannot be certified to work for the E-1 or E-2 entity.

In ATI Consultores the Employer argued that the Employer and Alien were different because they had distinct Federal Employment Identification Numbers. The distinction between Employers has been clarified somewhat by the PERM regulation that defines an Employer in part as an entity with a Federal Employment Identification Number. Also under PERM, the FEIN serves to determine whether experience has been gained with the same or different employer. However, this distinction is not very helpful to promote cases involving alien influence, ownership or control. Note that the PERM form has a section which inquires about the possibility of alien ownership, control, or family relationship, however, the rule does not state what inference or consequences should be drawn from a "yes" answer to the question. Early reports from practitioners indicate that under the PERM rule CO's may only deny those cases where the alien clearly has control of the recruitment process, a position less stringent than the totality of circumstances test based on the pre-PERM Modular Container case.

Another familiar issue, delaying contact with U.S. workers, is found in Bistany’s Oriental Rug Dealers, 2007-INA-009, December 12, 2007. The familiar principle from pre-BALCA cases is that two weeks or less may be the outside limit to contact U.S. workers. In the instant case, the Employer told one U.S. worker to wait three weeks while she went on a trip, and another worker had to wait about six weeks. The initial contact date is crucial. Additional post-interview contacts may involve delays, for example, if the worker himself does not promptly reply to a request for documents.

Under PERM, the Employer must prepare a recruitment report and resumes. The report includes the entire record, and the C.O. should not be entitled to ask for any further documents. This is a basic difference between pre-PERM and PERM. Under pre-PERM, the CO may go on fishing expeditions, but under PERM this does not appear to be possible, since the record file is the whole file, and nothing additional may be added during an audit or motion to reconsider.

For the time being, as most attorneys have observed, BALCA has been dealing mostly with issues of electronic filing and computer glitches. However, BALCA's continued attention to its long-standing pre-PERM regulatory interpretations is a strong indication that pre-PERM principles such as those described in this article will soon be applied in PERM cases. Employer beware!