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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) 693-7300

(202) 693-7365 (FAX)

 

DATE: September 21, 2000

CASE NO.: 2000 - INA - 234 

In the Matter of:

KRAFT HOUSEHOLD, Employer,

 on behalf of 

MARTHA PATRICIA AGUILLON,

Alien.

 

Appearance:                 Mario DeMarco, Esq

Port Chester, NY

 

Certifying Officer:            Raimundo Lopez

Boston, MA

 

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 Martha Patricia Aguillon (“Alien”) filed by the Kraft household (“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, Boston, Massachusetts, 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 June 13, 2000; they were notified that all parties had twenty-one (21) days to submit a statement or brief, and such was required if a ground of appeal was not stated in the request for review by the Board of Alien Labor Certification Appeals (the “Board”).  A brief was filed on June 30, 2000.

 

            Statement of the Case

 

Employer field an application for permanent alien labor certification in November or December of 1997; the Form 750A does not bear an original filing date.  Employer wished to fill the position of “Live Out Cook” in the Kraft’s Weston, Connecticut home.  The job duties were described as follows:

 

Prepare and cook meals according to dietary restrictions.  Plan menus, and serve meals.  Clean entire kitchen and dining areas.  Shop for food and other household items.  

 

Two years of experience in the offered position were required.  The position paid $577.60 per week for a 40 hour work week.  The scheduled work hours were 10 a.m. to 6 p.m., with overtime as needed. (AF 51).

 

The position was advertised in accordance with the applicable regulations, and 8 applications were received.  The Employer reported the results of recruitment in a letter dated October 25, 1999.  Two applicants, referred from the job center, did not respond to Employer’s inquiries.  The remaining six were rejected for a lack of interest after interviewing, or a lack of experience in the job duties. (AF 15-16).

 

 

The CO issued a Notice of Findings (“NOF”) on December 6, 1999 which proposed to deny the application on two grounds.  First, the CO questioned whether a bona fide job opportunity clearly open to qualified U.S. workers existed.  The CO required responses to a series of questions regarding the job duties and circumstances of the household, and also requested documentation where appropriate.  Second, the CO found that one of the applicants, Ms. Gravel, had been rejected for unlawful reasons.  The stated rationale was that she did not have any education in food preparation or nutrition, but such was not listed as a requirement on the Form 750A.  The Employer was directed to offer a job related reason for the rejection. (AF 10-12).

 

A Rebuttal was filed on February 9, 2000 and consisted of a cover letter from counsel and a two page letter from the Employer responding in a general manner to the CO’s inquiries.  No documentation was included in support of the responses.  The rejection of Ms. Gravel was explained by the fact that Mrs. Kraft was more comfortable with the Alien, whose references she knew personally, than with a stranger. (AF 5-7).

 

A Final Determination was issued on April 10, 2000 denying the application.  The CO found that neither of the cited deficiencies had been adequately addressed by the Rebuttal.  The CO found that the statement that the Alien would have to perform “general cleaning in the household” indicated that this was actually a general houseworker and not a skilled labor position.  Further, the rejection of Ms. Gravel was for a reason unrelated to the job duties.  “[S]he was rejected because the employer does not know her references.” (AF 3-4).

 

Administrative review was requested on May 8, 2000. (AF 1-2).

 

            Discussion

 

We agree with the findings of the CO, and affirm the denial of certification on both of the cited grounds.  Domestic cook cases are to be reviewed under a totality of the circumstances standard, in accordance with our decision in Carlos Uy III, 1997-INA-304 (Mar. 3, 1999)(en banc).  The NOF inquiries reflect the factors which can indicate the bona fides of a position.

 

The Employer bears the burden of proof in labor certification proceedings. 20 C.F.R. § 656.2(b).  The CO warned the Krafts of this in the NOF, when he informed them that merely answering the questions might not be sufficient, and indicated the importance of documentation.  The Krafts submitted no supporting documentation, and further did not answer all of the questions posed.  Those answers which were given were cursory. For example, the CO requested information on how many meals would be prepared and how long preparation would take, as well as who the meals would be prepared for.  The response indicated that 2 meals a day would be prepared for 4 people, but “I cannot tell you how long is required to prepare these meals.”  No indication is given of the schedules of the members of the household, so it is not clear who will eat lunch or dinner.

 

Special dietary restrictions are noted because of Mr. Kraft’s medical conditions.  The CO required a note from a physician to justify such, but none was provided.  The Employer did not even indicate what the special dietary need was.

 

 

The Rebuttal clearly states “Ms. Aguillon will be required to perform general cleaning in the household.” (AF 6).  The CO had asked “Will the Alien be required to perform...general cleaning or other non-cooking functions?” (AF 12).  General cleaning is clearly distinguished, and is listed with functions unconnected with cooking, such as child care.  Further, the recruitment summary indicated rejection because of a lack of experience with “cleaning.”  We find, despite the protest of the Employer in the request for review, that the plain language of the rebuttal means what it says.  The Alien would have to perform work other than merely cooking and cleaning in connection with that cooking.  We agree with the CO that this is a position for a general household worker, and that the circumstances indicate this is not a bona fide position clearly open to U.S. workers.

 

We also agree that Ms. Gravel was rejected for unlawful reasons.  We understand the desire to bring only trustworthy workers into the home, but that is the purpose of obtaining references.  Ms. Gavel can perform the job duties, and Employer admits she could get recommendations for any of the other applicants.  Nothing Ms. Kraft cites has any bearing on the ability of Ms. Gavel to do the job, nor does it provide a rational basis for her rejection.  We do not credit the allegation that Ms. Gavel was not interested in the job, as such was not made until the request for review, and other applicants who were not interested were noted on the original report of recruitment.

 

            Order

 

Based on the foregoing, the Final Determination of the CO 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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