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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 Accountant. 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 July of 2004. In the spring of 2006, the employer submitted its recruitment results indicating that nineteen resumes were received: some candidates did not have the requisite degree/experience, two candidates were found to be overqualified, and several other candidates were either unwilling to take the job or did not respond to contacts by the employer. Thereafter, in August of 2007, the CO issued a Notice of Findings (NOF) proposing to deny certification on the basis of the rejection of U.S. workers for other than lawful, job-related reasons. The CO found that the Employer had placed telephone calls to U.S. applicants and some of these were unsuccessful. The CO requested documentation of attempts to contact the referred applicants in a timely manner, and suggested that such documentation could include evidence such as certified mail receipts, itemized telephone bills or other documentation of timely contact which would establish good faith recruitment. The CO stated that failure to provide lawful, job-related reasons for their rejection was a violation of Federal regulations. The employer submitted its rebuttal arguing that it did contact the U.S. applicants, and asserting that it was in the process of obtaining its telephone bills. Additionally, the employer argued that their rejection of the candidates was consistent with normal business practices of the industry and its own normal practice. The CO did not accept the Employer’s argument regarding good faith recruitment, noting that placing unanswered telephone class without making additional attempts to contact U.S. applicants did not constitute good faith recruitment. 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 both of the grounds cited by the CO for denying certification were supported by BALCA caselaw. First, an employer who does no more than make unanswered phone calls or leave a message on an answering machine 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 letter – which may be certified mail, return receipt requested. Second, the Employer rejected at least two applicants as overqualified. The Board has repeatedly ruled that an employer who is recruiting pursuant to a labor certification application may not reject an applicant solely because that applicant is overqualified.

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.