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U.S. Department of Labor               Board of Alien Labor Certification Appeals

800 K Street, NW, Suite 400-N                                     

Washington, DC  20001-8002

 (202) 565-5330

(202) 565-5325 (FAX) 

DATE: September 21, 2000

CASE NO.: 2000 - INA - 28

        Formerly 1999-INA-76

 In the Matter of:

DR. MICHAEL AND MRS. LYNNE GREENE,Employer,

 

on behalf of

 

MYRNA SANTOS,

Alien.

 

Appearance:                 Dr. Michael Greene, Pro Se

McLean, VA

 

Certifying Officer: Richard E. Panati

Philadelphia, PA

 

Before:                         Holmes, Vittone, and Wood

 

JOHN C. HOLMES

Administrative Law Judge

 

DECISION AND ORDER

 

This case arose from an application for labor certification on behalf of Alien Myrna Santos (“Alien”) filed by Employers Dr. Michael and Mrs. Lynne Greene (“Employer”) pursuant to § 212(a)(5)(A) of the Immigration and Naturalization Act, as amended, 8 U.S.C. § 1182(a)(5)(A) (the “Act”), and the regulations promulgated thereunder, 20 C.F.R. § 656.  The Certifying Officer (“CO”) of the United States Department of Labor, Philadelphia, Pennsylvania, denied the application, and the Employer and the Alien requested review pursuant to 20 C.F.R. § 656.26.

 

 

Under § 212(a)(5) of the Act, an alien seeking to enter the United States for the purpose of performing skilled or unskilled labor may receive a visa if the Secretary of Labor (“Secretary”) has determined and certified to the Secretary of State and to the Attorney General that 1) there are not sufficient workers who are able, willing, qualified, and available at the time of the application and at the place where the alien is to perform such labor, and 2) the employment of the alien will not adversely affect the wages and working conditions of the U.S. workers similarly employed.

 

Employers desiring to employ an alien on a permanent basis must demonstrate that the requirements of 20 C.F.R. § 656 have been met.  These requirements include the responsibility of the Employer to recruit U.S. workers at the prevailing wage and under prevailing working conditions through the public employment service and by other reasonable means in order to make a good faith test of U.S. worker availability.

 

The following decision is based on the record upon which the CO denied certification and the Employer’s request for review, as contained in an Appeal File (“AF”), and any written argument of the parties.  20 C.F.R. § 656.27(c).  All parties were served with a Notice of Docketing and Order Requiring Statement of Position or Legal Brief on November 17, 1999; they were notified that all parties had twenty-one (21) days to submit a statement or brief, and such was required if a grounds of appeal was not stated in the request for review by the Board of Alien Labor Certification Appeals (the “Board”).

 

Statement of the Case

 

On April 13, 1998, Employers Dr. Michael Greene and his wife Lynne Greene applied for labor certification to allow them to fill the position of “Household Manager”, or housekeeper, in their McLean, Virginia home.  The position was described as:

 

“Supervision of staff, incl. gardener and babysitters; also supervision of bartenders and waiters during regular business related dinner parties; responsible for planning menus for daily meals as well as dinner party menus; ensures that meals are cooked and served; ensures that home is well maintained, cleaned, laundry done, plants watered and that activities of child are supervised; occasional care of elderly family member with advanced Alzheimer’s disease; orders supplies and determines need for maintenance and repairs; supervision of primary residence to ensure that all mechanical operations of the home work properly and calling plumber, electrician and other workers, as appropriate.” (AF 43).

 

 

A forty hour week, with variable overtime, was called for, and would be compensated at the rate of $12.05 per hour.  The stated schedule was 8:30 a.m. to 5:30 p.m. (AF 5).  Numerous special requirements were listed.  A tenth grade education and two years of experience in either the offered position or a related occupation were required.  Additionally, Employers required the worker to be a non-smoker, have character and/or job references, be available for flexible overtime, possess two years of supervisory experience, be able or willing to perform elder care, and live in Employer’s home. (AF 5).

 

Employers advertised and posted the job opportunity as required by law, and no responses were forthcoming. (AF 49).  Additionally, Employer submitted a reference for Alien, and a statement by Alien as to her duties in the home. (AF 50, AF 55).

 

An NOF was issued by the CO on August 19, 1998, which proposed to deny the application based upon a violation of § 656.3.  That section defines employment as being full time, and the CO found that the position in this case did not offer sufficient work to constitute full time employment.  The CO enumerated eight questions for Employers to respond to in rebuttal. (AF 38-40).

 

Employers filed their rebuttal on September 17, 1998.  This consisted of a three page letter responding to each of the inquires made by the NOF, and offering a statement to the effect that a housekeeper was necessitated by the busy work schedules of both parents and the presence of a young child. (AF 35-37).

 

A Final Determination was issued on September 28, 1998, and this denied certification based upon Employers failure to show that full-time work existed which would occupy the Alien.  Specifically, the CO found that Employers had failed to establish that, in accordance with the Dictionary of Occupational Titles (“DOT”) definition of “Household Manager,” that there were any supervisory duties to be performed by Alien.  Because the CO found that there were no other household employees, there was no one for Alien to supervise, and she therefore would not be performing a required duty. (AF 32-33).

 

Employers requested administrative review of the FD on October 28, 1998, on the grounds that they had shown full-time employment, and that supervisory duties, although perhaps minor, were performed.  They argued that the other activities performed by Alien did constitute full-time employment, and requested reversal of the FD. (AF 28-31).

 

On April 29, 1999, the Board, after careful consideration of the record and in light of the recent en banc decisions in Carlos Uy III, 1997-INA-304 (Mar. 3, 1999)(en banc), and Daisy Schimoler, 1997-INA-218 (Mar. 3, 1999)(en banc), remanded the case to the CO for further development and reconsideration.  Uy and Schimoler dealt with the proper test to be applied by the CO in evaluating applications for certification of domestic workers.  The Board instructed the CO to consider not whether the duties performed would add up to a full-time, 40 hour week, but instead to determine whether the position was a bona fide job offer, clearly open to qualified U.S. workers, or had been created expressly for Alien, to facilitate immigration.  Specifically, the Board found that, although the analysis offered by the CO tracked a violation of § 656.20(c)(8), the NOF, by stressing the hours to be worked, did not give adequate notice of such to Employers, and therefore they did not have a fair opportunity to respond. (AF 22-27).

 

 

In accordance with the Board’s Order, the CO issued a Supplemental NOF (“SNOF”) on July 6, 1999.  This again proposed to deny the labor certification, but framed the violation in terms of a failure of Employers to demonstrate that a bona fide position existed, and had not merely been created for the Alien to avoid the delays in obtaining an immigration visa for unskilled workers.  Specifically, the CO cited a violation of § 656.20(c)(8), which requires that the position be clearly open to qualified U.S. workers.  The CO again listed inquiries to guide Employers’ rebuttal; fourteen such questions were listed, many of them repetitive of those asked in the original NOF.  The inquires were generally in accord with the guidelines set forth in Uy, supra.  The CO specified that when asking about employees supervised by the Alien as a housekeeper, outside vendors or contractors were not considered employees. (AF 18-21).

 

Employers filed their Supplemental Rebuttal on August 6, 1999.  They supplied responses to each specific inquiry by repeating the information given to the NOF, and adding additional information to complete the answer or reflect changed circumstances.  For example, Employers stated that one of the duties had been deleted, as the family member suffering from Alzheimer’s Disease had passed away. Employers also enclosed a tax return from 1998 to demonstrate an ability to pay the stated wage. (AF 10-17).

 

The CO issued a second Final Determination (“SFD”) on August 11, 1999.  The CO denied certification based upon the failure of Employer’s Rebuttal evidence to show that a bona fide job opportunity existed.  The CO alleged that the position, although advertised as a “Household Manager,” was in fact a “General Houseworker” because of the lack of any significant supervisory duties.  The duties described and evidence submitted, therefore, did not establish a bona fide position for a housekeeper in Employer’s home. (AF 7-9).

 

A Motion for Reconsideration was filed by Employers on August 25, 1999, on the grounds that a full-time, bona fide housekeeper position with some supervisory duties had been shown, and that past Board decisions supported issuance of certification in this case. (AF 4-6).  The motion was denied on September 21, 1999 (AF-3), and Employer subsequently requested administrative review of the denial by letter of October 21, 1999. (AF 1-2).  The request for review indicated that Employers had terminated representation by their attorney, and were proceeding before the Board pro se.

 

Discussion

 

 

The employer bears the burden in labor certification both of proving the appropriateness of approval and ensuring that a sufficient record exists for decision.  20 C.F.R. § 656.2(b); Giaquinto Family Restaurant, 1996-INA-64 (May 15, 1997); Carlos Uy III, 1997-INA-304 (March 3, 1999)(en banc).  The Employer in this case has responded fully to each inquiry of the CO, and has provided documentation to support those responses where appropriate.  The CO, however, determined that the responses were not adequate to show a bona fide job opening existed for a Household Manager.

 

The crux of the CO’s finding is that the position discussed by Employers does not include a great deal of supervisory duties.  The CO found that, because the DOT included “works in residence employing large staff” and clearly contemplated that a housekeeper would act as an administrator and assign, not perform, household duties, Employers had not proven that such a position exists. Instead, they had mislabeled the position; it should have been listed as a “General Houseworker,” an unskilled position.

 

We agree with the CO.  The Employer has stressed throughout these proceedings that the Alien’s main contribution to the household comes in the performance of tasks such as cooking, cleaning, laundry, and child care.  The DOT draws a clear distinction between a worker who performs such acts and one who directs others to perform them.  It may be true that the Alien occasionally supervises contract workers and may in the future have an assistant hired permanently, but that does not alter the fact that the overwhelming majority of her duties are not supervisory in nature, as the DOT clearly contemplates for a housekeeper or household manager.

 

The Employer has failed to establish that a bona fide position for a housekeeper exists.  The arguments put forth quite passionately and sincerely do establish that a bona fide position exists, but the evidence and statements of the Employer indicate that it is for a general household worker.

 

            Order

 

Therefore, based upon the foregoing, the Second Final Determination of the Certifying Officer is affirmed, and labor certification is denied.

 

For the Panel:

 

 

 

________________________

John C. Holmes

Administrative Law Judge

 

 

 

 

NOTICE OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Order will become the final decision of the Secretary unless within 20 days from the date of service a party petitions for review by the full Board of Alien Labor Certification Appeals.  Such review is not favored, and ordinarily will not be granted except (1) when full Board consideration is necessary to secure and maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance.  Petitions must be filed with:

 

Chief Docket Clerk

Office of Administrative Law Judges

Board of Alien labor Certification Appeals

800 K Street, N.W., Suite 400

Washington, D.C.  20001-8002

 

Copies of the petition must also be served on other parties, and should be accompanied by a written statement setting forth the date and manner of service.  The petition shall specify the basis for requesting full Board review with supporting authority, if any, and shall not exceed five double-spaced typewritten pages.  Responses, if any, shall be filed within ten days of service of the petition, and shall not exceed five double-spaced typewritten pages.  Upon granting of the petition the Board may order briefs.


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