Date	Case No.	Title	Topic
September 2, 2004	2003-INA-20	THE JACK RANCH CAFE	[Cook] Unduly restrictive job requirements: business necessity: cooking specialization: "The inclusion of a few Mexican dishes on an otherwise American menu does not establish the need for a cook with two years of experience in Mexican style cooking."
September 2, 2004	2003-INA-31	BRIGHT STAR HOME	[Residence Supervisor] Unduly restrictive job requirements: business necessity: experience in job offered: CO questioned whether Employer's job requirement of experience in the job offered was unduly restrictive in view of the stated duties: Employer claimed that the restrictive job duties were mandated by the California Department of Public Social Service and that the facility would be subject to a disciplinary proceeding and/or fine if the duties were not performed: Employer, however, did not present any corroborating independent documentation, such as citations to applicable State laws or regulations.
September 2, 2004	2003-INA-80	AQUA AIR ENTERPRISES	[Sales Engineer, Agricultural Equipment] Unduly restrictive job requirements: business necessity: requirement of a Bachelor's degree in Agricultural Engineering: mere fact that the Alien and the Employer's owner (who used to handle sales) had this degree did not establish that it was justified by business necessity where the primary duty involved sales, not desiging agricultural systems and practices: Employer had not shown how an in-depth knowledge of agricultural equipment requires a Bachelor's degree in agricultural engineering
September 7, 2004	2003-INA-177	STAPLES, INC.	[Financial Analyst] RIR: layoffs: CO may look at layoffs in the industry occurring within 6 months of the date the CO issues an initial determination on a RIR request (usually in the form of a NOF) RIR: if the CO denies the RIR, the case should be returned to the local office for processing. See Compaq Computer Corp., 2002-INA-249-253, 261 (Sept. 3, 2003).
September 7, 2004	2003-INA-208	CLEANEX HOUSE CLEANING SERVICE, INC.	[Supervisor of Janitorial Service] Bona fide job opportunity: familial relationship: panel distinguishes facts from those of Paris Bakery Corp., 1988-INA-337 (Jan. 4, 1990) (en banc), and determined that the Employer had failed to prove that it was offering a legitimate job opportunity for U.S. workers: panel focused on the fact that in Paris Bakery there were no qualified U.S. applicants, whereas in the instant case there were at least five qualified U.S. applicants
September 7, 2004	2003-INA-225	OPEN EVENGELICAL CHURCH	[Choir Director] Bona fide job opportunity: panel agreed with the CO that Employer failed to prove that it was offered bona fide full time employment where job postings for full-time choir or music directors were for medium to large congregations where Employer was a small congregation, it was not clear that all of the duties on the employee's work schedule would be compensable work-related job duties, the lease for the worship facility indicated that it would be available only for 12 1/2 hours of worker's weekly schedule
September 7, 2004	2003-INA-247	CHRISTOPHER FRIES OF BRETANO HOUSE	[Nurse Assistant] Schedule B: waiver requests: Employer failed to establish that its job order was suppressed and on file for 30 days
September 7, 2004	2003-INA-252	BEAMCO, INC.	[Office Manager] Prevailing wage: CO did not raise until the FD the issue of whether the Employer's survey included too wide a geographic area: on review before BALCA, Employer presented argument that its survey did not violate the GAL-98 criteria: since the CO had not considered this argument, the case was remanded: panel also noted that the application was in the status of an RIR request; therefore if Employer's RIR is denied, application cannot be denied outright, but must be remanded to the state agency for regular processing
September 8, 2004	2003-INA-159	COUNTRY CLUB GUEST HOME	[Nurse Assistant] Bona fide job opportunity: Employer's submission of a 1993 business license failed to establish that it had a current, valid license: copy of check to Dept. of Social Services for annual renewal fee could not be considered by the Board as its review authority is limited to the record made before the CO Unduly restrictive job requirements: combination of duties: Employer failed to establish business necessity for a Nurse Assistant to also do laundry, clean the house, and prepare and serve meals: mere fact that residents need someone to perform these functions insufficient rationale: Employer also employed a maintenance staff, cook and housekeeper
September 8, 2004	2003-INA-244	JOE'S AUTOBODY & PAINT	[Auto Body Repairer] Bona fide job opportunity: Employer asserted that the Alien had worked as a independent contractor, but could not provide any documentation for years that he was paid in cash: the Alien's tax returns indicated only "business income" for the years 2001 and 2002, but did not establish the source of that income: certification denied
September 8, 2004	2003-INA-248	FARM FRESH RANCH MARKET	[Supervisor (Food Market)] Good faith efforts to recruit: letters to qualified applicants found to be discouraging: In the letter, the Employer stated that it was a small market and "would not be able to meet with your career objective, particularly in the area of advancement." The Employer further stated that if the applicant wanted to meet for an interview, he should call the Employer as soon as possible. The Employer noted that if he did not hear from the applicant in "the next day or so, I can only assume you have no further interest in this position." Rejection of U.S. workers: career goals of applicant: Employer had written to applicants informing them of limited opportunity for advancement: in rebuttal, Employer stated that the letters were not written with the intent to discourage U.S. applicants, but reflected the information on the resumes of the U.S. applicants, indicating that they were over-qualified for the job: panel held that Employer may not make assumptions about an applicant's interest in the job based on their resumes
September 8, 2004	2003-INA-251	BETH AND DAVID DASSA	[Social Secretary] Rejection of U.S. workers: career goals of applicant: Employer initially reported that a U.S. applicant was not qualified, but on rebuttal additionally stated that the applicant was not available because he stated that his long-term goal was to obtain a position in marketing services management or other management: panel affirmed denial of labor certification, finding that the applicant was clearly qualified and that Employer had provided no documentation to support its assertion that the applicant was not available: panel noted that an U.S. applicant's unwillingness to make a long term commitment is not disqualifying unless the employer can establish why a longer commitment is necessary (e.g., long period of training)
September 8, 2004	2004-INA-310 and 314	ATTAYEK SERVICES, INC.	Labor certification applications withdrawn
September 9, 2004	2003-INA-250	M J M HOME	[Nurse Assistant] Schedule B waiver: Employer failed to submit written documentation from the local job office verifying that the job order was suppressed and was on file for thirty calendar days. Bona fide job opportunity: Employer's tax returns failed to show sufficient income to pay the Alien's salary: no other financial documentation submitted
September 9, 2004	2003-INA-253	CORINA CARE HOME	[Nurse Assistant] Bona fide job opportunity: Employer failed to produce a business license for the residential care facility where the Alien was to work
September 9, 2004	2003-INA-254	ASPIRE PUBLIC SCHOOLS	[Teacher (K-1)] Alien's qualifications for the job: licensure: Employer argued that certification should not be denied for a school teacher position because under Perla Tate, 1990-INA-195 (Dec. 4, 1992) (en banc), licensure is not a prerequisite to certification: panel rejected this argument: "While lack of a required license is not a per se bar to obtaining certification, an employer who seeks certification for an unlicensed alien must also show that completion of the licensing process is ministerial and involves a relatively short process." In the instant case, the Alien was required to pass a state examination before qualifying for her teaching credential, which is not a ministerial procedure: in fact, record indicated that the Alien failed to pass the exam on the first attempt RIR: panel held that RIR was properly denied based on failure of Employer to establish that the Alien had a required license for the job: panel held, however, that the CO erred by denying the application outright, but must remand for further processing
September 9, 2004	2003-INA-255	UNIQUE GENERAL AUTO REPAIR	[Auto Mechanic] Rejection of U.S. workers: Employer provided no documentation to support his statement that 10 qualified U.S. applicants were rejected because they were not interested in the job
September 9, 2004	2003-INA-257	SUMMERVILLE AT GARDEN MANOR	[Caregiver] Unduly restrictive job requirements: unusual work schedule requiring three different shifts during the week: Employer's offer to change the schedule so that there were only two shifts did not cure, and Employer did not state sufficient grounds justifying the business necessity of the schedule: argument that the schedule matched those of the nurses was unpersuasive Rejection of U.S. workers: Employer failed to document its reasons for rejecting qualified U.S. applicants
September 9, 2004	2003-INA-287	CORPORATE SYSTEMS, INC.	[Lead Programmer Analyst] Actual minimum requirements: alien's qualifications: labor certification denied where the alien gained part of his qualifying experience with the Employer and the Employer did not offer in its rebuttal to reduce the requirements
September 13, 2004	2003-INA-136	M. BALACHANDRAN & V.G. VEERUBHOTLA	[Domestic Cook] Unduly restrictive job requirements: Indian dairy and vegetarian style food cooking requirement: assuming that it was true that the Employers cannot take the time to train a cook in the specialized cooking requirements, the Employer provided no evidence to show why it would take two years to learn to cook Indian dairy and vegetarian style dishes and why an otherwise experienced domestic cook could not adapt to cook the desired type of cuisine within a reasonable period of taking the job.
September 13, 2004	2003-INA-201	SURE SHINE MAINTENANCE	[Commercial/Industrial-Maintenance/Janitor] Good faith efforts to recruit: recruitment report stated that all 11 U.S. applicants were contacted by phone and that all were unavailable or uninterested in the job: NOF directed that Employer provide documentation of its efforts to contact applicants: in response, Employer argued that since the recruitment of 2 of the applicants was not contested, and all contact efforts were identical, all recruitment efforts should be deemed acceptable: in FD CO stated that the NOF only asked for documentation of contact of 9 applicants because the other 2 were not qualified and since Employer provided no proof of contact efforts, certification was denied: panel affirmed
September 13, 2004	2003-INA-215	LAW OFFICES OF MARIA C. ANGELES	[Legal Secretary] Good faith efforts to recruit: Employer sent letters to 11 applicants: only three applicants responded: Employer had certificates of mailing from the USPS, but made no effort to follow up on the unanswered letters: denial of certification affirmed
September 13, 2004	2003-INA-236	HANTEL, INC.	[Store Manager] Bona fide job opportunity: familial relationship: noting that the Employer and the Alien had the same last name, the CO instructed Employer to submit documentation showing the names and addresses of the corporate officers, their relationship to the Alien, their financial interest, duties and responsibilities, and the Articles of Incorporation, as well as any data or information which would support a finding that a bona fide employer/employee relationship and a legitimate job opening exists: in rebuttal, Employer only submitted Certificates of Naturalization and passports for both the sponsor and the Alien and a letter indicating that the common name was a coincidence and that there was no familial relationship: CO denied certification based on the failure to submit the requested documentation: panel affirmed, finding that the documentation requested by the CO was directly relevant: additional documentation submitted with request for review was untimely submitted
September 13, 2004	2003-INA-276 and 277	EASTLAKE POOLS & LANDSCAPE, INC.	[Tree Trimmer and Pruner] Bona fide job opportunity: Employer proposed to engage the two aliens as employees while keeping the remainder of its workforce as contract employees: the panel agreed with the CO that this was suspicious and indicated that the employee positions were created solely for the purpose of promoting immigration: in rebuttal Employer did not delineate any difference between the employee and contractor positions and did not provide any documentation to prove that the positions were not created solely for the purpose of labor certification: moreover, Employer did not activate its payroll account for employees as requested by the CO (such being a prerequisite to the SWA commencing recruitment): denial of labor certification affirmed
September 27, 2004	2003-INA-237	HOUSTON'S RESTAURANT	[Cook] RIR: if Employer fails to file a timely response to a CO's "NOF" issued in consideration of a case in the posture of an RIR request, the application may be denied outright rather than remanded to the SWA for regular processing RIR: although not reaching the issue, the panel noted that in a case that is before a CO for consideration of an RIR request, a CO might reasonably skip ruling on an RIR request and go straight to the ultimate question of whether the labor certification should be denied where the application is apparently fundamentally flawed: the panel noted that "Such a procedure may make sense where the perceived flaw in the application is grounded in reasons unrelated to whether the pre-application recruitment efforts were sufficient."
September 27, 2004	2003-INA-258	CHIRON CORPORATION	[Chemist] Rejection of U.S. workers: experience in job offered includes experience in job duties: Employer rejected several U.S. applicants for position of Chemist because they lacked experience in Capillary Electrophoresis (CE), which was mentioned in the job duties listed on the ETA 750A: the CO denied certification on the ground that knowledge of CE was only listed as a job duty and not a special requirement: the panel noted that BALCA caselaw established that where, as here, the employer makes experience in the job offered a requirement, it includes the job duties: thus, the panel reversed the denial on the ground cited by the CO; however, the panel also remanded the application for the CO to consider whether the CE requirement is an unduly restrictive job requirement: the panel noted that an inquiry into how long it takes for an otherwise qualified and experienced lab technician to learn this technique
September 27, 2004	2003-INA-259 and 261	ORANGE COUNTY SANITATION DISTRICT	[Programmer Analyst] Actual minimium requirements: alien's qualifications: the Alien had worked for an independent contractor which had developed software applications for the Employer, and the CO questioned whether the Alien gained the requisite experience prior to hire and whether any applicant could have gained the requisite experience in the Employer's custom application since the contractor had developed it: in rebuttal, the Employer clarified that its experience requirement in custom applications was not experience in the Employer's particular custom application, but in development of custom applications generally: the CO ignored this argument and denied certification: the panel reversed and granted certification finding that the Employer had provided sufficient evidence that the Alien gained the required experience prior to working for the contractor who supplied the services to the Employer
September 27, 2004	2003-INA-282	GEORGEA ELECTRONICS	[Electrical and Electronic Repairer, Commercial and Industrial Equipment] Unduly restrictive job requirements: combination of duties: CO questioned whether programming and reprogramming where an abnormal combination of duties for the job and denied certification finding that the rebuttal was inadequate: the panel agreed, noting that Employer's arguments about the duties "may ring true" but that the Employer nonetheless failed to provide evidence to substantiate its assertions and that the CO had not made unreasonable or unusual documentation requests: Employer provided a lot of documents, but none demonstrated that programming and reprogramming was a normal part of the service to be done with the equipment
September 27, 2004	2003-INA-283	GABRIELE & IVANA DIFEDERICO	[Household Cook] Motion for reconsideration: CO abused his discretion by refusing to consider a motion for reconsideration based on the contention that the Employer's agent submitted rebuttal without consulting with the Employer and that the Employer had not been able to successfully contact the agent: such a contention could not have been made at the time of the rebuttal as it involved the Employer's agent's mishandling of the rebuttal RIR: if CO denies an RIR, procedure is to remand to SWA for regular processing rather than deny the application outright
September 27, 2004	2003-INA-293	VINCENT TRIMARCO, JR.	[Assistant Bookkeeper] Rejection of U.S. workers: employer may not lawfully reject a worker merely because he is overqualified and the employer fears that they may not stay in the job for long: employer may not lawfully reject a worker for the unstated job requirement of living within a certain distance of the job site
September 27, 2004	2003-INA-296	SCOTT AVENUE BUILDERS	[Truss Carpenter] Due process: in NOF, CO raised issue of whether Employer could offer full-time employment and directed submission of documentation, including either W-2 or 1099-MISC forms: Employer submitted on 1099-MISC forms because none of its employees had SSNs: CO denied in FD based on finding of lack of an employer/employee relationship: panel held that CO changed nature of violation and should have issued a second NOF: remand Bona fide job opportunity: employer-employee relationship: remand for consideration of whether valid employer-employee relationship existed where Employer paid its employees as contractors: panel warned, however, that contract employees are certifiable only in narrow circumstances and only if the job is not contrary to federa, state or local law: the panel wrote that "an employer who deliberately misclassifies an employee in order to avoid the legal obligations attendant to its status as an employer (i.e., payment of payroll taxes, etc.) will not be granted labor certification. We have held that no bona fide job opportunity exists where an employer initially classifies an alien as an independent contractor and later seeks to hire the alien as an employee." (citations omitted).
September 28, 2004	2003-INA-226	KARIM AMIRYANI	[Housekeeper, Home] Unduly restrictive job requirements: CO noted that Employer's two year experience in job offered requirement seemed excessive given that the Alien would supervise no employees (CO noted that the SVP for a general houseworker is only 3 months): on rebuttal Employer only may a general statement that the supervision would include overseeing independent contractors, such as a gardener, pool man, handymen and maintenance men and a full-time houseboy: since none of these assertions were documented, panel affirmed denial of labor certification
September 28, 2004	2003-INA-227	ZENAIDA P. GONZAGA	[Domestic Cook] Unduly restrictive job requirements: cooking specialization: Employer failed to adequately document business necessity for its unduly restrictive requirement of two years of experience in Filipino style cooking
September 28, 2004	2003-INA-239	ANITA CASSANDRA	[Domestic Cook] Alien's qualifications for the job: Employer required two years of experience in the job offered of domestic cook: Alien's experience was in a restaurant: Alien did not meet stated job requirements Unduly restrictive job requirements: cooking specialization: Employer did not adequately establish why an otherwise experienced cook could not adopt to Hispanic style cooking in a reasonable period of time: mere assertion that a person who was raised eating Hispanic dishes would know the difference not adequate
September 28, 2004	2003-INA-240	RAJNISH KAPOOR	[Domestic Cook] Bona fide job opportunity/sufficiency of funds: Employer's tax returns did not show sufficient income to pay wage: no other documentation of ability to pay timely submitted: denial of certification affirmed
September 28, 2004	2003-INA-260	PALOS VERDES LIBRARY DISTRICT	[Librarian] Actual minimum requirements: Alien did not have the required one year of experience as a libraria when hired
September 28, 2004	2003-INA-263	GREEN ACRES GROUP HOME	[Nurse Aide] Unduly restrictive job requirements: business necessity: Employer chose to attempt to establish business necessity but to agree to readvertise if the business necessity argument was not accepted: Employer's draft advertisement for new recruitment, however, did not remove all of the duties found by the CO to be unduly restrictive combination of duties: where an offer to readvertise is equivocal, it is not a remedy to the unduly restrictive job requirement citation, see Ronald J. O'Mara, 1996-INA-113 (Dec. 11, 1997)(en banc): denial of labor certification affirmed
September 28, 2004	2003-INA-264	DIAMOND CARE HOME	[Nurse Assistant] Rebuttal: Employer's submission of a "modified rebuttal" attempting to address issues it had failed to address in the original rebuttal was untimely after the FD had already been issue
September 28, 2004	2003-INA-265	NACARIO'S HOME FOR AMBULATORY AGED	["Household domestic worker / Caregiver"] Job terms contrary to Federal, State or local law: Employer justified its live-in requirement on ground that its elderly patients could not be left alone: requirement showed that while living in, Employer's employee would be required to tend to patients whenever their needs arise: CO found that under California law, this type of employee would be on "controlled standby" and would need to be compensated accordingly: Employer did not obtain a letter from the appropriate State official, as directed by the CO, to establish that its workers were not on controlled standby nor did it request an extension of time to obtain that response: denial of labor certification affirmed
September 28, 2004	2003-INA-278	EVANGELINA RAMIREZ	[Houseworker, general] Good faith efforts to recruit: Employer's letter did not provide sufficient time between receipt and date of scheduled interview: in addition, the only attempt to contact the applicant was with a single letter, even though there was only one applicant whose phone number was available
September 29, 2004	2003-INA-262	IGBANTE-ENRIQUEZ CARE HOME	[Nurse Assistant] Unduly restrictive job requirements: Employer failed to establish business necessity for live-in, 24-hour on call, and split shift requirements: Employer failed to establish why it could not just use a night shift rather than requiring a worker to live on the premises being on-call 24 hours a day.
September 29, 2004	2003-INA-267	IGBANTE-ENRIQUEZ CARE HOME	[consolidated with 2003-INA-262 above]
September 29, 2004	2003-INA-275	PLATON INTERIORS INC.	[Cabinet Maker] Rejection of U.S. workers: Employer failed to explain or document its rejection of three apparently qualified U.S. applicants: Employer cannot rejection U.S. applicants on the basis that the alien is better qualified
September 29, 2004	2003-INA-286	VINMOR POOLS INC.	[Maintenance Mechanic] Good faith efforts to recruit: Employer should have further investigated the qualifications of two applicants who showed long experience in mechanical maintenance or electrical machinery and plumbing, even though their resumes did not state specific experience with swimming pool motors: Gorchev & Gorchev Graphic Design, 1989-INA-118 (Nov. 29, 1990)(en banc). Good faith efforts to recruit: Employer did not follow job service's recommendation to contact applicants within 14 days of receipt of their resumes, but waited five weeks to 2 months: denial of labor certification affirmed
September 29, 2004	2003-INA-288	HIGHDATA SOFTWARE CORP.	[Systems Analyst/Administrator] Rejection of U.S. workers: Employer improperly rejected a U.S. applicant for a computer Systems Analyst Administrator position based on lack of knowledge of Oracle where knowledge of that application was not listed as a job requirement in the ETA 750A or advertisements: although the applicant had a B.S. in Business Management rather than a B.S. in Computer Science, her resume showed 18 years of experience in computer systems, such that she should not have been rejected solely on her resume.
September 29, 2004	2003-INA-289	ROBERT L. PETERSON, M.D., INC.	[Medical Researcher] Good faith efforts to recruit: six weeks delay in contacting applicants found to be unreasonable under circumstances: intervening Thanksgiving and Christmas holidays not sufficient to excuse delay
September 29, 2004	2003-INA-291	ECONO LODGE	[Manager] Good faith in recruitment: Employer found not to have recruited in good faith where, inter alia, it scheduled interviews without consulting applicants as to their availability and sternly warned that failure to appear at the interview without advance notice or good cause would be considered grounds for rejecting the applicant, failed to document grounds for rejecting several applicants with anything but bare assertions
September 29, 2004	2003-INA-294	MANUEL DA CUNHA CONST., INC.	[Bricklayer] Bona fide job opportunity: in NOF, CO pointed to several factors indicating that the Employer may not be an active business and directed to Employer to document how he could guarantee permanent full-time employment; the CO asked for specific documentation: on rebuttal Employer submitted documentation showing that he pays his current workers' taxes via 1099-MISC forms: in FD, CO found that the 1099-MISC forms indicated that the Employer's workers were not "employees": on review the panel agreed that the Employer had not established that the Alien was not a contract employee
September 29, 2004	2003-INA-295	MANUEL DA CUNHA CONST., INC.	consolidated with 2003-INA-295 above