Date Issued: June 16, 2003
BALCA Case No.: 2002-INA-85
ETA Case No.: P1999-CA-09442846/ML
In the Matter of
JOSE'S FRONT END ALIGNMENT,
on behalf of
RUDY ERWIN FLORES,
Certifying Officer: Martin Rios
San Francisco, California
Appearance: Garish Sarin, Esquire
Los Angeles, California
For the Employer
Before: Burke, Chapman and Vittone
Administrative Law Judges
JOHN M. VITTONE
Chief Administrative Law Judge
DECISION AND ORDER OF REMAND
This case arises from an application for labor certification (1) filed by an automobile service business
for the position of Mechanic Supervisor. (AF 13-14). (2) The following decision is based on the record upon
which the Certifying Officer (CO) denied certification and Employer's request for review, as contained in
the Appeal File ("AF"), and any written argument of the parties. 656.27(c).
STATEMENT OF THE CASE
On November 8, 1996, Jose's Front End Alignment filed an application for alien employment
certification on behalf of the Alien, Rudy Flores, to fill the position of Mechanic Supervisor. Minimum
requirements for the position were listed as two years experience in the job offered. (AF 13-14).
Employer received seven applicant referrals in response to its recruitment efforts, all of whom were
rejected by Employer as uninterested in the position on the basis that they had failed to respond to
Employer's contact letter. (AF 17-18), Employer's letter of contact instructed:
Before we scheduled [sic] a personal interview please provide us with written references
meeting our minimum requirements from your last employers delineating your experience
as a Mechanic Supervisor.
Upon receipt of your correspondence meeting our minimum requirements we would like
to schedule a personal interview please choice [sic] one date, time and attach the date and
time to your letter of references as well a telephone number were [sic] we can reach [you].
December 30, 1998 at 10:00 or 10:30
December 31, 1998 at 10:00 or 10:30
(AF 24, 27, 31, 35, 41, 44).
A Notice of Findings (NOF) was issued by the CO on May 31, 2001, proposing to deny labor
certification based upon a finding that Employer had unlawfully rejected U.S. workers because of
undisclosed requirements. The CO concluded that because the requirement of references was not shown
on the ETA 750 Part A, lack of this requirement could not be cited as justification for finding the U.S.
applicants unqualified. Employer was instructed to show that the U.S. workers who applied were not
qualified based on their failure to possess the requirements set forth on the ETA 750 Part A. (AF 10-12).
In rebuttal, Employer asserted that all seven U.S. applicants were scheduled for a personal
interview and did not appear; thus Employer's reason for rejection was valid as they clearly manifested an
intent not to pursue the job offer. (AF 6-7).
A Final Determination denying labor certification was issued by the CO on August 29, 2001, based
upon a finding that Employer had failed to adequately rebut the NOF as it did not address the issue of the
undisclosed requirement. In addition, the CO further noted that the letter "supposedly" sent had no return
receipt or other documentation to corroborate a timely transmittal; nor did it identify Employer as a business
or give a telephone number for reply. (AF 3-4).
Employer requested Administrative-Judicial review by letter dated September 11, 2001. (AF
In general, an applicant is considered qualified for a job if he or she meets the minimum
requirements specified for that job in the labor certification application. United Parcel Service,
1990-INA-90 (Mar. 28, 1991); Mancillas International Ltd., 1988-INA-321 (Feb. 7, 1990). Thus, an
employer unlawfully rejects a U.S. worker who satisfies the minimum requirements specified on the ETA
750A and in the advertisement for the position. CCDONLINE Systems Inc., 1993-INA-258 (May 24,
1994); American Café, 1990-INA-26 (Jan 24, 1991); Cal-Tex Management Services, 1988-INA-492
(Sept. 19, 1990).
BALCA has held in Bell Communications Research, Inc., 1988-INA-26 (Dec. 22, 1988), that
the employer must state all the requirements for the job on the application form itself . Thus, rejection for
requirements not stated on the form is only appropriate if they are implicit in the duties, or normally incident
to recruitment. Notably, BALCA has held that the request that workers provide references and verification
of work experience is implicit in the recruitment process and need not be stated on the ETA form. Petit
Jean Poultry, 1994-INA-3 18 (Aug. 15, 1996). Accordingly, the CO's denial of certification on this basis
is inappropriate in this case.
The CO in fact raised other bases for denial in the Final Determination, i.e., documentation as to
whether the contact letter was actually and timely sent, and the fact that the letter neither identified
Employer as a business nor provided a telephone number for reply. The Final Determination may not,
however, deny certification on the basis of evidence not cited in the NOF. Shaw's Crab House,
1987-1NA-714 (Sept. 30, 1988)(en banc); Marathon Hosiery Co., Inc., 1988-INA-420 (May 4,
1989)(en banc); Clarkson Medical Group, 1987-INA-714 (Sept. 30, 1988). If a CO bases his Final
Determination on evidence not first discussed in the NOF, the matter may be remanded to the CO for
clarification and the issuance of a new NOF. Dr. Mary Zumot, 1989-INA-35 (Nov. 4, 1991); Western
Yarns, Inc., 1989-INA-60 (Feb. 23, 1990).
In the instant case, Employer received seven applicant referrals, none of whom responded to the
Employer's recruitment letter. The Board in M.N. Auto Electric Corp., 2000-INA-165 (Aug. 8, 2001)(en
banc), held that evidence of timely mailing to numerous applicants of a letter which does not tend to
discourage or contain onerous requirements and allows sufficient time for U.S. applicants to attend an
interview may constitute a reasonable effort where there is significant response to the letter. Here,
none of the applicant who were sent interview letters contacted Employer to schedule an interview; but
Employer's letter required significant additional effort on the part of the applicant, including notifying their
current employer, before he or she even knew if they were in fact being seriously considered for or were
interested in the job.
Implicit in the regulations is a requirement of good faith recruitment. H.C. LaMarche Ent. Inc.,
1987-INA-607 (Oct. 27, 1988). Actions by the employer which indicate a lack of good faith recruitment
effort, or actions which prevent qualified U.S. workers from further pursuing their applications, are thus a
basis for denying certification. In such circumstances, the employer has not proven that there are not
sufficient United States workers who are "able, willing, qualified and available" to perform the work. 20
As the issues regarding contact and its appropriateness were not raised until the issuance of the
Final Determination, it is determined that an Order of Remand is appropriate in this case.
The Certifying Officer's denial of labor certification is hereby VACATED and the matter is
REMANDED for further consideration and findings in accordance with this decision and order.
For the panel:
JOHN M. VITTONE
Chief Administrative Law Judge
NOTICE OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Order will become
the final decision of the Secretary unless within twenty days from the date of service a party petitions for
review by the full Board. Such review is not favored and ordinarily will not be granted except (1) when full
Board consideration is necessary to secure or 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.
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, arid shall not exceed five double-spaced pages. Responses,
if any, shall be filed within ten days of service of the petition, and shall not exceed five double-spaced
pages. Upon the granting of a petition the Board may order briefs.
1. Alien labor certification is governed by section 212(a)(5)(A) of the Immigration and Nationality
Act, 8 U.S.C. 1182(a)(5)(A) and 20 C.F.R. Part 656.
2. "AF" is an abbreviation for "Appeal File."