Good faith efforts to recruit: union job: CO directed Employer to provide notice of
job opportunity to bargaining representative: rebuttal apparently based on argument that
posting of job was all that was required under union contract: panel held that CO had the
authority to required notice of job to bargaining representative even if such was not required
under the union contract
Good faith efforts to recruit: Employer had no proof that it telephoned applicants within 14
days of receipt of resumes, as asserted, and did not mail interview letters until about one month
after receipt of the resumes: CO reasonably suspected that interviews did not occur - Employer's
credibility suspect because recruitment report was dated prior to the date of the purported interviews
Unduly restrictive job requirements: combination of duties: nursing and housekeeping duties:
California regulation cited by Employer did not support combination of duties: advertisements
submitted to show custom in field were inapposite as they were for domestic service workers whereas
the instant application was for a residential care facility: Employer failed to make a convincing
showing that two workers could not be supported, Robert Lippert Theatres, 1988-INA-433 (May 30, 1990) (en banc)
Due process: confusing or inadequate NOF/FD: panel rejected Employer's argument that the
NOF and FD were deficient because they did not cite an applicable BALCA decision: although
the FD did not specifically cite a regulatory section, reference to NOF was adequate to put
Employer and the Board on notice of the violations that were the basis for the denial
Ability to provide full-time employment: fact that NOF
requested copy of "business license" while the FD faulted Employer for failure to provide a
"contractor's license" unimportant since tax returns indicated insufficient funds to employ
a full time gardener
Bona fide job opportunity: familial relationship: where the Employer was a small, family-owned company,
in which the Employer's directors and officers are related to the Alien and there were no other
employees, and the company is run by three officers who are all related to the
Alien, it appeared that the petitioned position may not be a bona fide job opportunity
truly open to U.S. workers: moreover, evidence indicated lack of funds to pay wage: certification denied
Rejection of U.S. workers: Employer rejected U.S. applicant based on resume for lack of experience as
a bakery manager: applicant had over 13 years of experience in store management, including some
bakery experience: Employer should have at least contacted the applicant and further investigated his
credentials: see Gorchev & Gorchev Graphic Design, 1989-INA-118 (Nov. 29, 1990)(en banc).
Due process: NOF failed to provide fair warning to the Employer that the basis
for the CO's finding that a Master's degree requirement was unduly restrictive was
that it appeared to be tailored to the Aliens' qualifications because four other simultaneous
applications for the same position only listed Bachelor's degree requirements: the CO
had mentioned tailoring, but had not described the basis for that finding: panel, however,
found that the Master's degree was within the SVP and therefore not subject to a requirement
that business necessity be shown: panel stated that comparison with the other applications
could not be made
Unduly restrictive job requirements: business necessity: where the Employer's job requirement of
a Master's Degree was within the SVP, it could not be made to establish business necessity for that
requirement even though the CO noted that four other simultaneous applications only required a
Bachelor's Degree
RIR: CO's grant of RIR's are discretionary: purpose of the RIR regulations is to expedite applications in occupations where there is little or no
availability of U.S. workers: where there were over 600 U.S. applicants, with about 180 of those applicants being qualified: panel left it to the
CO on remand to consider whether there is a shortage of U.S. workers sufficient to justify an RIR: panel noted that if the RIR is denied, the
regulations require that the application be remanded to the SWA for supervised recruitment
Ability to provide full-time employment: business/care home license submitted by Employer in
response to NOF was for a different facility at a different location and was for a residential-elderly
facility rather than a developmentally-disabled resident facility as described in the ETA750A: certification denied
Rejection of U.S. workers: undisclosed requirement: Employer, a fireplace retailer, rejected a U.S. applicant
for the position of Sales Manager because she was unable to move inventory weighing 300 to 400 pounds without assistance: although the
advertisement noted that physical work may be required, the panel found that this reference was too vague to
support a lawful, job-related reason for rejection of the applicant: the Employer argued that moving heavy objects was
normal to position in the industry, but provided no supporting documentation
Rejection of U.S. applicants: U.S. applicant's resume showed familiarity
with Microsoft Word and Excel and current experience working with a
variety of computer systems and office equipment, thus not supporting Employer's contention that
her familiarity with current office functions was out of date
Good faith efforts to recruit: verification of references: although an Employer may
reject an applicant who refuses to provide references, where the U.S. applicant immediately
provided references but the Employer waited 10 months to attempt to contact those references,
the failure of the references to respond could not be used to reject the U.S. applicant because
the Employer had not engaged in good faith efforts to recruit
Bona fide job opportunity: familial relationship: where the CO clearly raised the issue
of a potential family relationship between the Employer and the Alien in the NOF, but the Employer
did not deny such a relationship until after the FD had already been issued, the Employer's rebuttal
was untimely
RIR: the decision whether to grant an RIR is a matter of discretion: thus, review of a denial of an RIR is based on an abuse of discretion standard
RIR: the CO does not abuse his or her discretion when considering
the prevailing labor market conditions near the time that the RIR application is actually
reviewed rather than at the time the application was filed.
RIR: Employer argued that CO violated the TAG by not considering its RIR request in a timely manner:
panel held that the TAG is only a manual that does not afford legal rights to relief if a CO is unable to
follow a guideline stated therein: panel also found that given the large volume of labor certification
applications pending before ETA, it was not obvious that the CO failed to consider the RIR request as
timely as possible given the available resources
RIR: CO who did not abuse his discretion by denying an RIR request nonetheless erred when he
also denied the application outright rather than remanding to the SWA for regular processing, Compaq Computer Corp.,
2002-INA-249-253, 261 (Sept. 3, 2003)
Due process: although an assertion made by an attorney on matters of which
he or she lacks personal knowledge may not be entitled to much weight, a CO's summary
rejection of the Employer's rebuttal because it was submitted by the attorney and
not signed by the Employer is erroneous, La Roma Pizza, 1993-INA-229 (Apr. 8, 1994): the panel wrote: "The attorney is the Employer's representative and is therefore
allowed to present evidence on his behalf. The attorney has signed the rebuttal as the
Employer's agent and certification cannot be denied on this ground."
Motion for reconsideration: matters that could not have been raised in the rebuttal: the CO denied labor certification
on the ground that the attorney rather than the employer signed the rebuttal: Employer filed for
reconsideration citing BALCA caselaw that this was not a valid ground for denial: CO denied reconsideration on the ground
that it did not raise an issue that could not have been addressed in rebuttal: panel held that the CO erred - the issue
could not have have been addressed in rebuttal, and therefore the CO abused his discretion when denying reconsideration
Bona fide job opportunity: live-in caregiver at elder care facility: Employer's rebuttal failed to establish that it was offering a
bona fide job opportunity, e.g., alien would have to share a room with another worker
Actual minimum requirements: alien's experience: evidence of record failed to establish that the alien had prior qualifying experience
now required of U.S. applicants
Schedule B: suppressed job order required for waiver: waiver properly denied where the Employer failed to provide documentary
evidence that the job order was suppressed and on file with the local job service office for
thirty calendar days
Bona fide job opportunity: familial relationship: NOF raised issue of familial relationship: in rebuttal
Employer withdrew sponsorship of original Alien and sought to substitute another alien: CO issued FD
ignoring substitution request and denying certification: on review, panel held that substitution request
mooted original ground for denial, unless the circumstances suggested that the bona fides of the job
were so lacking as that the substitution would not cure: on record presented, panel could not find that the application
was so inherently in bad faith that certification could not be granted regardless of the
current identity of the sponsored alien: remand to CO to consider substitution request
Substitution of alien: CO had ignored Employer's request to substitute the alien: panel could find no case law, regulation or DOL policy statement describing the
process to be followed when an employer seeks to substitute the alien on a pending (as opposed to an approved)
application: remand for CO to rule on substitution of alien request
Unduly restrictive job requirements: split-shift: the Employer presented multiple, contradictory versions of
the position's work hours, but only one version of the job duties, which included serving meals: panel held that;
the CO properly concluded that the Employer failed to show that the duties of the domestic cook position did not require a split-
shift schedule
Unduly restrictive job requirements: combination of duties: standard
for reviewing a combination of duties citation is Robert L. Lippert Theatres,
1988-INA-433 (May 30, 1990) (en banc) and not Ratnayake v. Mack, 499 F.2d 1207 (8th Cir. 1974)
Bona fide job opportunity: suspected misclassification of unskilled domestic position as skilled
domestic cook position: Employer's own rebuttal indicated that position was not a dedicated
cooking position: where CO requests documentation of ability to pay and the tax return indicates
on its face a lack of sufficient funds to pay the salary, " an
employer should provide a documented explanation or documentation of sources of funds
not revealed on the tax return"
Bona fide job opportunity: Employer, a elder care facility, unclear as to where live-in workers would reside:
circumstances and requirements of job changed: denial affirmed
Schedule B: waivers require suppressed job orders: in its rebuttal,
the Employer indicated that it had contacted the local job service and was informed that
all job orders are run suppressed, listing the name and phone number of
the staff person with whom the Employer spoke: CO agreed that the job service now runs all job
orders suppressed, but noted that at the time of the order, this policy was not in effect: Employer found to have
failed to document that its job order ran suppressed (a suppressed job order allows an accounting of the responses)
Recruitment efforts: Employer failed in rebuttal to follow CO's direction to contact the local
union to determine if they would refer workers: attempt to provide documentation of contact
with union in request for BALCA review too late
Rejection of U.S. worker: where the ETA 750A did not state any educational or experience
requirements, it is not implied that applicants will have experience in the job duties: may not
reject U.S. applicants merely because the Employer believes that the Alien is better qualified
Bona fide job opportunity: CO observing that job service records
indicated that the Employer's residential facility consisted of six rooms and that the
Employer intended to hire two live-in workers: CO therefore CO questioned whether there was
sufficient room for the six resident patients: panel affirmed section 656.20(c)(8) citation, which was
based largely on the fact that the worker would have to share a room, whereas the ETA 750A provided
for a private room: although the CO did not cite 20 CFR
656.21(a)(ii)(I), the panel held that the section 656.20(c)(8) citation together with the description of the
issue was sufficient notice of the violation.
Actual minimum requirements: alien's qualifications: Employer failed to establish that the
Alien's prior experience included work with developmentally disabled patients, which was
a stated job requirement
RIR: CO issued a SNOF in consideration of Employer's RIR request directing Employer to submit two copies of an
amendment letter, a statement that the Employer was willing to re-advertise and a draft
advertisement if the Employer elected to retest the labor market: Employer did not submit these items, but rather submitted
a letter attempting to rebut the citations and requesting remand for supervised recruitment if the documentation was not
sufficient to establish entitlement to an RIR: panel held that the failure to submit the amendment letter, statement and draft
advertisement did not prevent a remand for supervised recruitment, 20 C.F.R. 656.21(i)(5).
RIR: panel did not reverse CO's denial of RIR where rebuttal evidence indicates that the Employer received 4,000 to 7,000 resumes a month
[Electrical and Electronic Engineering Technician]
Prevailing wage: amended job title: the Employer accepted the CO's amended job title, but
argued that it should be able to rely on the prevailing wage approved by the EDD: panel held that
the prevailing wage determination was for the initial job code, not the amended job code,
which involved a more complex position: since the Employer declined opportunity to readvertise with
the new wage, but relied solely on its argument that it should be able use the original wage determination, labor
certification was properly denied
RIR: bona fide job opportunity: domestic cook: CO adequately explained why
Employer's rebuttal evidence did not establish a bona fide job opportunity for
a domestic cook: CO, however, erred by denying application outright because
application was in the status of an RIR request: regulation requires that if he CO
denies the RIR, the application be remanded for regular processing, Compaq Computer
Corp., 2002-INA-249-253, 261 (Sept. 3, 2003)
