Elain Bunzel, 1997-INA-481 (BALCA Mar. 3, 1999) (en banc)

U.S. Department of Labor

Board of Alien Labor Certification Appeals 800 K Street, NW, Suite 400-N Washington, DC 20001-8002 (202) 565-5330 (202) 565-5325 (FAX) www.oalj.dol.gov

Date: March 3, 1999
Case No.: 1997-INA-481

In the Matter of:

ELAIN BUNZEL,
    Employer,

on behalf of

OFELIA HERNANDEZ-MENDEZ,
    Alien.

Appearances: Thomas A. Lavin
    Santa Ana, California
    for Employer and Alien

Certifying Officer: Rebecca Marsh Day
    San Francisco, California

Before: Burke, Guill, Holmes, Huddleston, Jarvis, Lawson, Neusner, Wood, and Vittone
    Administrative Law Judges

JOHN M. VITTONE
Chief Administrative Law Judge

   This case arises from an application for labor certification on behalf of Alien Elain Bunzel, ("Alien"), filed by Employer Ofelia Hernandez-Mendez, ("Employer"), pursuant to Section 212(a)(5)(A) of the Immigration and Nationality Act, as amended, 8 U.S.C. § 1182(a)(5)(A) (the "Act") and the regulations promulgated thereunder, 20 C.F.R. Part 656. The Certifying Officer ("CO") of the U.S. Department of Labor denied the application and Employer requested review pursuant to 20 C.F.R. § 656.26.¹

   Employer, through counsel, submitted a rebuttal on April 16, 1996. (AF 6- 9). However, the rebuttal fails to address any of the specific requests made by the CO. Rather, Employer argues that the NOF "was clearly an abusive decision and an infringement of other U.S. Government Agencies who have already been designed by regulations to oversee various points brought out in [the] NOF." (AF 6). Employer contests, inter alia, the CO's authority to make the documentary demands listed in the NOF, stating that such documentation is "absolutely not material" in light of pre-BALCA Administrative Law Judge decisions² that hold it is beyond the CO's authority to determine whether the duties to be performed are necessary or whether they could be performed in less than 40 hours per week. (AF 7). Employer also accuses the CO of an "abusive breach of established regulations", finding that it is "INS and not USDL [which] has been designated as the Federal agency to establish whether" an employer has sufficient funds to pay the wage offered. (AF 8).

   The CO issued the Final Determination ("FD") on April 29, 1996, (AF 2-5), denying certification because Employer failed to document that a bona fide, full- time job opportunity exists. (AF 5).

   On May 13, 1996, Employer filed a request for review. (AF 1). On July 22, 1997, the CO forwarded the record to the Board of Alien Labor Certification Appeals ("Board"). Employer's statement of position, which is virtually a reiteration of its rebuttal, was received on September 22, 1997.

   While pre-BALCA decisions may have intrinsic persuasive value, they are not binding on the Board. Artdesign, Inc., 1989-INA-99 (Dec. 5, 1989); Aurora Gumanit, 1997-INA-483 (Jan. 28, 1998) (per curiam). Employer's attorney, in his statement of position and rebuttal to the NOF, cites and makes reference to several pre-BALCA cases in support of his position. We have held, however, that such decisions are not binding upon the Board and to the extent any of the pre-BALCA decisions conflict with our decision today, we decline to follow them. See id. Thus, contrary to Employer's argument that it is beyond the CO's authority to make a determination concerning whether the duties to be performed are necessary or whether they could be performed in less than 40 hours per week, a CO may reasonably inquire into whether a job constitutes full-time employment. However, it is important to note that in today's en banc decision in Daisy Schimoler, the Board holds that there is little relevance for purposes of the section 656.3 definition of employment in whether the worker's duties require constant work for the entire work day, provided that the work day is customary for a full-time employee in the industry or under an employer's special circumstance. Daisy Schimoler, 1997-INA-218 (Mar. 3, 1999) (en banc). Accordingly, if a CO's questions about the full-time nature of the duties are, in reality, a requirement that the employer establish the "business necessity" for the position, the inquiry is not reasonable. See id. at 4 n.6. Nevertheless, a CO may reasonably ask for the same type of information in an analysis of a bona fide job opportunity, under the totality of the circumstances test, pursuant to 20 C.F.R. § 656.20(c)(8), as cited in this case. See today's decision, Carlos Uy III, 1997-INA-304 (Mar. 3, 1999) (en banc). Schimoler does not change the CO's authority to inquire about the employer's ability to offer permanent, full-time work,³ which was also an inquiry made by the CO in this case. Further, an employer must provide documents reasonably requested by the CO relating to the sufficiency of funds to pay the alien's salary.⁴

   Where the CO requests a document or information which has a direct bearing on the resolution of the issue and is obtainable by reasonable effort, the employer must produce it. See Gencorp, 1987-INA-659 (Jan. 13, 1988) (en banc). An employer's failure to produce documentation reasonably requested by the CO will result in a denial of labor certification.⁵

¹ This decision is based on the record upon which the CO denied certification and Employer's request for review, as contained in an Appeal File ("AF"), and any written argument of the parties. 20 C.F.R. § 656.27(c).

² Employer cited the pre-BALCA decisions of M. Ganesa Pandian, 1987-INA-110 (Mar. 31, 1987), and Ava Capossela, 1986-INA-342 (June 24, 1986).

³ See, e.g., Collectors International, Ltd., 1989-INA-133 (Dec. 14, 1989) (existence of permanent, full-time employment not shown where the CO requested evidence of the source of the employer's funds and income in the last year, and the employer failed to produce it); see also Schimoler, supra, at 4 and n. 7.

⁴ See, e.g., O.K. Liquor, 1995-INA-7 (Aug. 22, 1996) (denying certification where Employer failed to provide information questioning whether the Employer could pay the offered salary).

⁵ Note also that Employer has burden to satisfactorily respond or rebut to all findings in the NOF. Belha Corp., 1988-INA- 24 (May 5, 1989) (en banc). Failure to address a deficiency noted in the NOF supports a denial of labor certification. Id.; see also Prace Fabrication Corp., 1993- INA-179 (Mar. 1994) (denying certification for failure to respond to CO's request for documentation of ability to offer full-time employment).