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Bloggings on PERM Labor Certification

by Joel Stewart

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

September 09, 2008

Will Global Warming Change the Prohibition on Landscape Gardeners?

Oh my, are they still doing that? I am referring to the landscaping cases. For years and years we have been writing about the proscription on landscaping cases.

The DOL considers that in the north of the US, where the winter is severe, landscapers cannot work full-time. We have written about this before, many times. The cases are all pre-PERM, dating from 2001. The employers may have had some strategy to continue with the appeals. Basically, a full-time job has to be one where the salary is rendered year-round, and not just during the work season.

Now there is a slew of new Landscaping cases from BALCA, eight decided the same day. Perhaps the most heroic is Suburban Nursery, 2008-INA-61, BALCA, August 28, 2008.

The Employer argued, "....payroll records establish a long-term commitment since they clearly demonstrate that despite the winter hiatus, everyone returns ready for a new year of hard work beginning in the spring."

The Employer went on to argue that landscaping is considered permanent, full-time year-round work in areas with continuously warm climates and, due to global warming, even northern states are experiencing milder winters and, therefore, have longer landscaping seasons.

The Employer even argued that "it is time to stop waiting for Congress to pass new legislation on this subject and end the over-reliance upon stare decisis and modify the determination of Vito Volpe Landscaping, 1991-INA-300 (Sept 29, 1994) (en banc) and Crawford & Sons, 2001-INA-121 (Jan. 24, 2004) (en banc), and recognize that landscaping occupations constitute permanent full-time work where the employer can establish that an alien's employment is ongoing rather than seasonal and that ties to the employer are maintained even through a vacation period."

On appeal, the BALCA discussion starts off with this:

"A landscape gardener position for which duties can only be performed during approximately nine to ten months per year cannot be considered permanent employment for the purposes of labor certification. Rather, this employment should be considered seasonal employment. The fact that the same employees return the following year bears no relevance on this determination. The re-employment of the same employees does not cure the defect. The Employer has not demonstrated that the job duties can be performed year-round. As such, the position is seasonal employment and labor certification was properly denied. The Employer's argument that global warming may result in longer landscaping seasons fails to contradict the fact that the Employer's payroll records show that the Alien's employment was only for nine months each year. As such, as the Board found en banc in Vito Volpe and affirmed in Crawford and Sons, supra, the duties for this job as performed during nine months of the year cannot be considered permanent employment for purposes of labor certification."

As global warming increases, no doubt the issue will become moot.