Articles Posted in BALCA Decisions

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of heavy equipment operator. This LC was filed prior to the effective date of the “PERM” regulations.

The employer, a residential home construction company filed a LC on behalf of an alien worker in April of 2001. In January 2006, the CO issued a Notice of Findings (NOF) proposing to deny certification on the ground that two U.S. applicants were unlawfully rejected in direct violation of the regulations. In the submitted recruitment report there were several findings at issue. First, the employer left a phone message for one applicant that was never returned, and an email was sent to a second applicant, and thus returned because it was inoperable. The employer did not follow up with alternative attempts, such as written correspondence. In summary, the CO stated that an employer who does no more than place unanswered telephone calls without making additional attempts has failed to make a minimally acceptable effort. In response, the employer stated that if an applicant does not return a telephone call for a high paying position, then it can be reasonably inferred the applicant is no longer interested in the position. Additionally, the employer contended that he is not required by the regulations to send certified mail notices or other written communication to an applicant that it has tried in good faith to contact for an interview. Thereafter, the CO issued its final determination denying certification for the same grounds contained in the NOF. Subsequently, the Employer requested BALCA review.

Upon BALCA review, it was determined that an employer must show that U.S. applicants were rejected solely for lawful job related reasons. An employer must take steps to ensure that it has obtained lawful job-related reasons for rejecting U.S. applicants, and not stop short of fully investigating an applicant’s qualifications. According to the Board’s case law, an employer who does no more than make unanswered phone calls or leaves messages on answering machines has not made a reasonable effort to contact the U.S. worker, where the addresses were available for applicants; in such a case the employer should follow up with a latter – which may be certified mail, return receipt requested. The Board further pointed out that what may be considered adequate recruitment by an employer for hiring is not necessarily adequate to establish good faith efforts to recruit U.S. workers for the purposes of supporting a labor certification application.

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Landscaper”. This LC was filed prior to the effective date of the “PERM” regulations.

The employer filed a LC on behalf of an alien worker in December 2001. In November 2006, the CO issued a Notice of Findings (NOF) proposing to deny certification. The regulations at 20 C.F.R. § 656.3 define employment as permanent, full-time work by an employee for an employer other than oneself. Generally, the work of a landscaper is only performed during certain seasons of the year. The CO needed more information to determine whether the position required full-time, year round work. The CO asked the employer to provide payroll records for December to Mach for the last three years to establish that the position of landscaper was performed on a year-round basis. The Employer submitted its weekly payroll records for the Alien and two other employees. The Employer’s attorney argued that the employees perform their jobs year-round on a continuous basis working in the months of December, January, February, and March. The CO issued its Final Determination denying certification in June 2007. Simply stated, the CO found that the employer failed to provide evidence to establish that the position was performed on a year-round basis. The Employer’s payroll records for the last three years showed that the Alien and the other two employees regularly worked less than 35 hours in a given week during the winter months. The Employer stated that the future position will perform 40 hours per week during the winter months. Accordingly, the evidence submitted was not sufficient to establish that the position constituted permanent, full-time, year-round employment as defined by the regulations. Subsequently, the Employer requested BALCA review.

Upon BALCA review, the Board relied upon case law and held that a landscaper position for which duties can only be performed during several months per year cannot be considered permanent employment for the purposes of labor certification. The Board considered this arrangement seasonal employment. The Board found that the employees averaged between 23 and 26 hours a week from December through February in the 03’/04′ season, 04’/05′ season and 05’/06′ season. Although the Employer argued that the offer for future employment will be 40 hours each week year-round, the evidence submitted did not support such a finding. The Employer did not provide any additional documentation to establish that the position was permanent and full-time. Accordingly, the Board agreed with the CO that the position was for seasonal employment and as a result, the labor certification was properly denied.

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “landscaper”. This LC was filed prior to the effective date of the “PERM” regulations.

The employer filed a LC on behalf of an alien worker in April of 2002. In March 2007, the CO issued a Notice of Findings (NOF) proposing to deny certification. The regulations at 20 C.F.R. § 656.3 define employment as permanent, full-time work by an employee for an employer other than oneself. Generally, the work of a landscaper is only performed during certain seasons of the year. The CO needed more information to determine whether the position required full-time, year round work. The CO asked the employer to provide payroll records for December to Mach for the last three years to establish that the position of landscaper was performed on a year-round basis. The Employer submitted its Quarterly Federal Tax Returns for 2005 and 2006 as evidence of permanent, full-time employment. The CO issued its Final Determination denying certification in August 2007. Simply stated, the CO found that the employer failed to provide evidence to establish that the position was performed on a year-round basis. The Employer’s Quarterly Tax Returns did not show the number of hours each individual worked each week. Subsequently, the Employer requested BALCA review.

Upon BALCA review, the Board relied upon case law and held that a landscape gardener position for which duties can only be performed during several months per year cannot be considered permanent employment for the purposes of labor certification. The Board considered this arrangement seasonal employment. Therefore, the employer has the burden to prove that the position is permanent and full-time. The employer failed to produce evidence that would show that the position was in fact permanent, full-time employment. The Employer’s failure to submit the documentation reasonably requested by the CO warranted a denial of labor certification. The Board held that while the employer’s quarterly reports established that the business is open year-round; they did not establish that the position was for permanent, full-time year-round employment. Accordingly, the employer failed to meet its burden and as a result, the labor certification was properly denied.

The Board of Alien Labor Certification Appeals (BALCA) recently vacated the final determination

of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Secondary Mathematics Teacher,” and remanded the case for regular processing and supervised recruitment. This LC was filed prior to the effective date of the “PERM” regulations.

In the aforementioned case, the employer, a state charter school filed a LC on behalf of an alien worker in April of 2004. In a letter submitted with the application for LC, the Employer requested that the application be handled under the provisions for Reduction in Recruitment (RIR). In August 2007, the CO issued a Notice of Findings (NOF) proposing to deny certification. The CO concluded that the Employer did not make a bona fide, good faith effort to recruit U.S. workers for the job offered because the Employer made no attempt to contact any of the job applicants but, rather, rejected all applicants without adequately investigating their qualifications. The CO stated that the Employer could rebut its findings if (1) it submitted documentation that showed that U.S. workers were rejected for lawful, job related reasons; and (2) a recruitment report detailing the number of workers who responded to the recruitment, the manner of contact, the number of workers who were interviewed, and information regarding those interviews. Additionally, the CO noted that at the time of filing the application, the Employer was “delinquent” according to the Wisconsin Secretary of State’s public website, and that good standing was not restored until January 2005. The CO equated the delinquency to mean that the Employer had not yet legally restored his qualification to legally conduct business in the State of Wisconsin. On rebuttal, the Employer submitted documentation which established the requirement to hire teachers with valid licenses or permits. In addition, the Employer submitted an affidavit from the Director of the school further indicating that the applicants in question were not qualified for the position. The Employer also provided copies of letters and emails that were sent to the otherwise qualified U.S. workers in August 2007 to determine if they were still interested in the job opportunity. Also, the Employer submitted documentation indicating that “delinquent” status is not an assessment of the entity’s financial condition, stability, or business practice, but an indication of the entity’s status in regards to filing annual reports. In September 2007, the CO issued a Final Determination denying certification. The grounds for denial were: (1) neither applicant for the position had been contact by the Employer back when the recruitment took place in 2004; (2) the affidavit was not credible because it testified to information about which he did not have first hand knowledge; (3) the Employer’s attempt to contact the applicants three years after recruitment was not sufficient; and (4) the information from the Wisconsin Department of Financial Institutions was insufficient to establish that the Employer had the legal authority to transact business in the State of Wisconsin. In summary, the Employer had not address the deficiencies in the NOF, and therefore the CO denied the application for LC. Subsequently, the Employer requested BALCA review.

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Landscape Gardener.” This LC was filed prior to the effective date of the “PERM” regulations.

In the aforementioned case, the employer, a nursery filed a LC on behalf of an alien worker in April of 2001. In a letter submitted with the application, the Employer requested the application be handled under the special provisions for Reduction in Recruitment (RIR) processing. In May 2006, the CO issued a Notice of Findings (NOF) proposing to deny certification. The NOF provided that the regulations at 20 C.F.R. § 656.3 define “employment” as permanent full-time work by an employee for an employer other than oneself. Additionally, the NOF stated that the work of a landscape gardener is generally performed during certain seasons or periods of the year and not others. Lastly, the NOF stated that there was insufficient information to determine whether the Alien would perform the work on a full-time basis. The NOF requested that the Employer submit payroll records for the last three years to establish that the job duties are permanent full-time employment. On rebuttal, the Employer submitted payroll records for the last three years and argued that the payroll records establish a long-term commitment because despite the winter hiatus, everyone returns for re-employment in the spring. The Employer also plead that in continuously warm climates, landscaping is considered permanent, full-time year round work. The Employer argued that they should not wait for Congress to pass new legislation on this issue, and recommended a modification of the existing case law. In September 2007, the CO issued a final determination denying certification. The CO noted that the Employer’s pay roll records for the last three years did not show any pay for the first quarter of each year for the months of January, February and March. Therefore, the Employer’s rebuttal failed to establish employment on a year-round basis. Subsequently, the Employer requested BALCA review.

Upon BALCA review, existing case law holds that 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, the employment should be considered seasonal. The fact that employees return the following year bears no relevance on the final determination, as the re-employment of the same employees does not cure the defect. As such, the position is seasonal and labor certification was properly denied.

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Heavy Equipment Operator.” This LC was filed prior to the effective date of the “PERM” regulations.

In the aforementioned case, the employer, a contractor providing commercial site preparation services filed a LC on behalf of an alien worker in April of 2001. In March 2006, the CO issued a Notice of Findings (NOF) proposing to deny certification. The CO noted that the employer did not document that its requirements for the job opportunity, represented the Employer’s actual minimum requirements for the job opportunity in violation of Section 656.21(b)(5). Additionally, the CO concluded that based on the recruitment report, the Employer had screened and rejected U.S. workers for the lack of qualifications not stated in the ETA 750A form or the advertisements. There were 10 additional qualifications not mentioned in ETA 750A or the advertisements for the position which the Employer used to reject otherwise qualified U.S. workers. The Alien had been hired without these qualifications and allowed to gain the required experience now required of U.S. applicants. The CO provided three ways in which the employer could rebut its findings: (1) submit evidence showing the alien had the qualifications at the time of hire; (2) submit evidence of business necessity; or (3) delete the requirements. The CO concluded that the Employer had not established lawful job-related reasons for rejecting the otherwise qualified U.S. workers. In response, the Employer submitted a rebuttal to the NOF. Thereafter, the CO issued a final determination in April 2007, denying certification because the Employer’s rebuttal was not sufficient to correct the deficiencies noted in the NOF. Subsequently, the Employer requested BALCA review.

Upon BALCA review, 20 C.F.R. § 656.21 (b)(5) provides: The employer shall document that its requirements for the job opportunity, as described, represent the employer’s actual minimum requirements for the job opportunity, and the employer has not hired workers with less training or experience for jobs similar to that involved in the job opportunity or that is not feasible to hire workers with less training or experience than that required by the employer’s job offer. Therefore, an employer cannot require more stringent qualifications of a U.S. worker than it requires of the alien. Thus, the employer is not allowed to treat the alien more favorably than it would a U.S. worker. An employer must establish that the alien possesses the stated minimum requirements for the position that is being offered. There is no documentation on record, which establishes that the alien had the additional qualifications required for the position. An employer’s unsupported statement that the alien meets its minimum requirements does not constitute adequate documentation that the alien meets those requirements. Since the alien’s prior experience is not documented, the record does not establish that the Alien was hired with the experience now being required of U.S. applicants. Therefore, the U.S. applicants who were rejected for their lack of an experience, which was not required of the Alien were not rejected for lawful job related reasons.

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the Final Determination

of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “tailor – textile, apparel & furnishing worker.” This LC was filed prior to the effective date of the “PERM” regulations.

In the aforementioned case, the employer, a warehouse filed a LC on behalf of an alien worker in April of 2001. In December 2001, the employer requested conversion to “reduction in recruitment” processing by letter and attached a new ETA 750A Form. In July 2005, the Philadelphia Backlog Processing Center sent a letter to the employer requesting a response to whether or not the employer wished to continue to pursue the application. Counsel for the employer responded indicating that it wished to continue processing the application, and that a new attorney was entering an appearance on behalf of the Employer and the Alien because their previous attorney was no longer practicing law. New counsel submitted both the original ETA 750-A and B forms and new ETA 750A and B forms because the originals were not of high quality and included several omissions or incomplete answers. Subsequently in September 2006, the CO issued a Notice of Findings (NOF). The NOF indicated that the previous attorney who represented the employer and the alien had been suspended from practicing law, and therefore requested the Employer to indicate whether it wish to withdraw the application, remove the attorney and continue without representation or identify a new representative and continue with processing. Additionally, the CO indicated that additional information was required to determine if the application represented a bona fide job opportunity open to qualified U.S. workers. Specifically, nine items of documentation were listed. The ninth item stated, “If you are represented by new counsel, please submit an updated G-28 form. Please note that representation by new counsel does not cure the above finding. The CO emphasized that the information requested must be provided in order to rebut the NOF. The NOF was addressed and mailed to the previous attorney rather than the employer’s new counsel. In the rebuttal, the Employer argued that the NOF was inconsistent with the July 2005 letter. Thereafter, the CO issued a final determination denying the application because the employer failed to provide the information requested in the NOF. The Employer requested BALCA review.

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Ethnic Singer/Entertainer.” This LC was filed prior to the effective date of the “PERM” regulations.

In the aforementioned case, the employer, a restaurant/nightclub filed a LC on behalf of an alien worker in April of 2001. In June 2006, the CO issued a Notice of Findings (NOF) proposing to deny certification on the basis that the job was not full-time. Accordingly, the position could not be considered permanent because it did not involve full-time work during the entire year. The CO provided the employer with specific instructions in the NOF to rebut the findings. Specifically, the CO requested evidence that the position as performed in the employer’s establishment constitutes full-time employment as required by the regulations, evidence such as a daily/weekly/ work schedule, and proof that the job was previously filled by an incumbent on a full-time basis before the alien was hired, etc and proof of recruitment efforts. In its rebuttal, the Employer provided the performance schedule of the alien, contending that the position was a full-time position, and provided the CO with the recruitment report. The Employer also suggested that since the Department of Labor (DOL) had previously approved a similar petition, accordingly, this petition should be approved. Subsequently, the CO issued a Final Determination denying certification. The CO stated that the NOF had clearly identified two violations: the employer’s failure to demonstrate that the petition was full-time employment as required by the regulations, and that the Employer had not engaged in adequate recruitment efforts. The CO determined that the Employer had rebutted the second violation by providing the recruitment report; however, the Employer did not successfully rebut the first violation. The CO further explained that an employer’s failure to produce documentation that is requested by the CO and that has a direct bearing on the resolution of an issue, is a ground for denial of certification. Thereafter, the Employer requested BALCA review.

Upon BALCA review, it was determined that the employer has the burden of demonstrating that it meets the definition of employer and that the position that is offered is both permanent and full-time as required under the regulations. The Board’s caselaw provides that if an employer offers, for example, only a 25 hour a week work week, then section 656.3 may be properly cited by the CO as a ground for denying labor certification. In the instant case, the Employer only offered 20 hours of work per week. Additionally, the Employer failed to provide all of the documentation that was reasonably requested by the CO in the NOF.

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Operations Foreman.” This LC was filed prior to the effective date of the “PERM” regulations.

In the aforementioned case, the employer, a metals distributor filed a LC on behalf of an alien worker in April of 2001. The LC was denied on three grounds. First, the Employer did not recruit in good faith because it had only tried to contact applicants by telephone, and had not attempted the alternative of writing to those applicants. The CO found that the Employer’s rebuttal response, which was an offer to re-advertise, was not a remedy for lack of good faith in recruitment. The CO also denied the LC based on the Employer’s rejection of U.S. applicants for lacking experience not specified as a job requirement in the ETA Form 750A, and its failure to establish that the Alien had such experience prior to being hired by the Employer. Thereafter, the Employer requested BALCA review.

Upon BALCA review, it was determined that an employer must take steps to ensure that it has obtained lawful job-related reasons for rejecting U.S. applicants, and did not stop short of fully investigating an applicant’s qualifications. Pursuant to 20 C.F.R. § 656.21(b)(6), an employer must show that U.S. applicants were rejected solely for lawful job related reasons. Case law provides that although the regulations do not explicitly state a “good faith” requirement in regards to post-filing recruitment, such a good faith requirement is implicit. The Board’s case law states that an employer who does no more than make unanswered phone calls or leaves a message on an answering machine has not made a reasonable effort to contact the U.S. worker. In such a case, the employer should follow up with a letter.

The Board of Alien Labor Certification Appeals (BALCA) recently vacated the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Fabric and Apparel Patternmaker.” This LC was filed prior to the effective date of the “PERM” regulations.

In the aforementioned case, the employer, a garment manufacturer and wholesaler filed a LC on behalf of an alien worker in February of 2003. In the application, the employer required two years of experience in the job offered. In the Notice of Findings (“NOF”) issued in June 2007, the CO found that the Employer’s advertisement did not meet the criteria for certification because the advertisement did not state the minimum job requirements that appeared on Form ETA 750, Part A. On the LC, the job requirements included two years of experience with no formal education required. Whereas, the advertisement; however, listed the requirements for the job as “2 years exp/AA degree.” The CO stated that it was unduly restrictive to advertise for job requirements in excess of those that were specified on the original LC. To respond to the NOF, the CO stated that the Employer was required to provide a copy of the advertisement and internal posting notice that was placed during the 30 day recruitment period. Additionally, the CO stated that the advertisement must reflect the same job requirements that were stated by the Employer on ETA Form 750-A. In response to the NOF, the Employer submitted a rebuttal which explained that the additional education requirement was a clerical error made at the Employer’s law firm. To rectify the mistake, the Employer drafted another advertisement and ran the new advertisement for three days in June of 2007. Subsequently, the CO issued a Final Determination in July of 2007. In the Final Determination the CO found that the Employer’s rebuttal evidence did not correct the deficiencies raised in the NOF. Specifically, the Employer re-advertised without permission or obtaining further instructions. Thereafter, the matter was referred to BALCA for review. In its request for review, the Employer argued that the NOF did not state that permission to re-advertise was required, nor did it state when or how to obtain permission to re-advertise.

Upon BALCA review, pursuant to the regulations at 20 C.F.R. § 656.25(c), if a CO does not grant certification, an NOF must be issued which states: (1) the date on which the NOF was issued; (2) the specific grounds for issuing the NOF; and (3) the date by which a rebuttal must be made. Specifically, the NOF must give notice which is adequate to provide the employer an opportunity to rebut or cure the alleged defects. An adequate notice of deficiencies should identify the section or subsection allegedly violated, the nature of the violation, the evidence supporting the challenge, and instructions for rebutting or curing the violation.