E. Statements of counsel
Counsel's assertion that Employer sent U.S. applicants a letter requesting interview not
sufficient to document good faith recruitment. API Industries Inc., 93-INA-159
(Aug. 16, 1994). See also Jin Han Food Products
Inc., 94-INA-20 (Apr. 13, 1995) (holding that assertions by attorney explaining why
Employer
required foreign language not considered evidence); Wilton Stationers, Inc.,
94-INA-232 (Apr. 20, 1995) ("An attorney cannot execute a certificate of service if he did
not mail or personally serve the document. An attorney cannot authenticate the business records
of a client unless he is the custodian thereof. An attorney cannot testify about events unless he
was present.").
Assertions by the mployer's counsel do not constitute evidence: Michael S.
Sussman, 93-INA-200 (Aug. 17, 1993) (recruitment report); E. Davis,
Inc., 92-INA-277 (Aug. 4, 1993) (rejection of U.S. workers); LA Dye & Print
Works, Inc., 91-INA-393 (May 26, 1993); Michael J. Blake,
91-INA-394 (May 26, 1993); The Denture Office, 92-INA-213 (May 26,
1993); LA Dye & Print Works, Inc., 92-INA-201 (Apr. 14, 1993)
(unsupported assertions of alien's qualifications); Eduardo Alvarex,
92-INA-2 (Apr. 27, 1993) (attorney asserted that business necessity for live-in
established); Esther Russak, 93-INA-185 (Sept. 30, 1993) (agent's assertions
on behalf of employer); Lord Michel Originals, Inc., 92-INA-164 (Mar. 16,
1993) (attorney reported recruitment results); Jersey Welding & Fence Co.,
93-INA-43 (Oct. 13, 1993); Antonio Bongioanni, 91-INA-104 (Sept. 1, 1992)
(attorney sought to establish business necessity for Italian language requirement);
La Barca Restaurant, 91-INA-15 (June 8, 1992) (attorney asserted
infeasibility to train); Telesca-Heyman, Inc., 91-INA-140 (May 14, 1992)
(Denying certification where attorney sought to rationalize Employer's refusal to contact U.S.
applicant);
Multi-Fineline Electronix, Inc., 91-INA-42 (Apr. 30, 1992) (attorney
attempted to justify rejection of U.S. applicant); Pak Trading Co., 90-INA-251
(Apr. 8, 1992) (denying certification where an attorney attempted to justify the rejection of two
U.S. applicants); Mark
Austin, 91-INA-158 (Mar. 26, 1992); Panache Management &
Consulting, 90-INA-484 (Mar. 4, 1992); Emerson Electric Co.,
90-INA-486 (Feb. 19, 1992) (attorney attempted to justify rejection of U.S. applicant).
The FD was reversed and labor certification was granted where the CO's
only basis for denial was that counsel, not Employer, signed and submitted rebuttal evidence in
violation of 656.25(d)(1). The panel concluded that as Employer's representative, counsel is
entitled to present argument and evidence on Employer's behalf in response to the NOF.
Moreover, because the rebuttal evidence was supported by a recruitment letter signed by
Employer, it was not an unsupported assertion. La Roma Pizza, 93-INA-229
(April 8, 1994).
Some qualifications, good references being one, are so inherently requisite for a job that they
not be stated expressly in the job description. See Alfredo's Restaurant
#2, 90-INA-70 (June 12, 1991). Here, an applicant submitted what appeared to be a
highly favorable reference. Nonetheless, Employer rejected him, saying in an unsigned
document that he was unable to contact references. Employer's counsel additionally stated that
one reference said he could not give a positive character reference for the applicant and stated
that Employer "learned specifically that the applicant was not willing to take
instructions" and "often performed his duties disregarding his employer's
wishes." The Board held that Employer's counsel's statements were inadequate to
overcome the written favorable reference submitted by the applicant. See
Moda Linea, Inc., 90-INA-424 (Dec. 11, 1991). Androscoggin Jr. - Sr.
Camp for Boys, 94-INA-216 (Nov. 3, 1995).
Assertions by Employer's attorney that are not supported by the underlying statement of a
person with knowledge of the facts, do not constitute evidence. See
Moda Lina, Inc., 90-INA-424 (Dec. 11, 1991). Employer's counsel
questioned the authenticity of 2 reference letters submitted by an applicant. The letters had the
numbers of the references. Labor certification was properly denied because the counsel could
have called the references and because his concerns about the authenticity were pure speculation.
Sarah and Norman Jaffe, 94-INA-513 (Oct. 30, 1995). See
also Re/Max Reality Group, 95-INA-15 (July 19, 1996) (refusing to
consider as evidence statements by counsel to the effect that an applicant never made a second
call to Employer as claimed and that the applicant was not interested in the position because
she already had lucrative employment); Cine Video Corp., 95-INA-50 (Sept.
25, 1996) (denying certification where Employer's counsel stated the a position was full time
and permanent but where Employer's president sent a note to the CO stating that Alien
was offered a temporary, one year position which indicated lack of full-time employment
because
the president's statements are afforded greater weight because they were made by a person with
knowledge); Lori Gusky, 94-INA-518 (Aug. 1, 1996); Livia Helmer
Shechtman, M.D., 94-INA-543 (Feb. 22, 1996); Holiday Restaurant and
Club, 94-INA-390 (June 16, 1995); Wong's Palace Chinese
Restaurant, 94-INA-410 (Oct. 12, 1995).
Post-application recruitment results written by the employer's attorney does not constitute
evidence. See Hi Lume Corp., 90-INA-444 (Mar. 4, 1992).
The Board distinguished this case on the basis that the recruitment report was signed by
Employer and thereby adopted by Employer as its own version of dealings with the U.S.
applicants. Bimbo Bakery, 94-INA-436 & 437 (July 14, 1995).
An attorney cannot testify about events unless he was present. See
Wilton Stationers, Inc., 94-INA-232 (Apr. 20, 1995). The Board distinguished
this case on the basis that the recruitment report was signed by Employer and thereby adopted
by Employer as its own version of dealings with the U.S. applicants. Bimbo
Bakery, 94-INA-436 & 437 (July 14, 1995).
Citing Modular Container Systems, Inc., 89-INA-228 (July 16, 1991) (en banc), a panel held
that, absent extraordinary circumstances, employer's counsel cannot act as a fact witness to
document the recruitment efforts of his or her client. Hi Lume Corp.,
90-INA-444 (Mar. 4, 1992).
Rebuttals provided by an attorney do not constitute evidence if they are not supported by
underlying statements of a person with knowledge. See Hupp Electric
Motors, Inc., 90-INA-478 (Jan. 30, 1992). Employer applied for certification for
the position of import export agent. The CO challenged Employer's designation, instead
calling the position a foreign clerk. Employer's counsel indicated in rebuttal that the job
involves the supervision of approximately 15 other workers (which would prove that it is an
import export agent). The application, however, indicated that the position involved supervising
no workers. Lee International Corp., 94-INA-413 (Oct. 12, 1995).
Employer sought certification for the position of live-in home attendant. Employer rejected
6 applicants either due to their alleged unwillingness to work or disqualification based on their
citizenship/residence status. However, the CO independently contacted the six applicants, all of
whom independently denied having been contacted by Employer. In addition, the six applicants
denied Employer's factual basis for having rejected them. Employer rebutted with statements
from its attorney. The CO denied certification on
the basis of lack of good faith recruitment and the Board affirmed. Citing Modular
Container Systems, Inc., 89-INA-228 (July 16, 1991) (en banc), API
Industries, Inc., 93-INA-159 (Aug. 16, 1994), Michael S. Sussman,
93-INA-200 (Aug. 17, 1993), E. Davis, Inc., 92-INA-277 (Aug. 4, 1993),
Hupp Electric Motors, Inc., 90-INA-478 (Jan. 30, 1992), and Modea
Linea, Inc., 90-INA-424 (Dec. 11, 1991), the Board noted that assertions by an
employers'
attorney unsupported by underlying statements made by a person with knowledge are not
evidence. Here, the Board found sufficient documentation including reports of recruitment
signed by Employer. Mrs. Marion Matros for Hilde Isreal, 95-INA-147
n.2 (Dec. 23, 1996) (dictum).
Employer, a bakery, applied for certification for the position of Master
Jeweler/Engraver. Special requirements for the position were, among other things, fluency in
Arabic and Turkish. The CO issued a NOF, questioning Employer's documentation of the
business necessity of the foreign languages. In rebuttal, Employer's counsel stated that 50%
of its clients spoke only Arabic or Turkish and in "a business such as ours..., it is a
necessity to have a jeweler or jewelry designer who can communicate clearly with the
client." The CO denied certification. Citing Modular Container Systems,
Inc., 89-INA-228 (July 16, 1991) (en banc) (holding that assertions by an employer's
attorney that are not supported underlying by a person with knowledge of the facts, do not
constitute evidence), the Board affirmed. The Board reasoned that rebuttal included no
underlying statements of a person with knowledge. Nouri's Syrian Bakery,
Inc., 95-INA-191 (Dec. 19, 1996).
Employer sought alien labor certification for the position of "auto mechanic."
The CO in the NOF requested Employer to justify the business necessity for requiring a
combination of duties as both a refrigerator mechanic and an auto mechanic. The
CO specifically requested that Employer document how many auto mechanics worked for
Employer at the time Alien was trained, how many auto mechanics worked for Employer
presently (besides Alien), who trained Alien, the change in the total work force and
annual volume of business from the time Alien was hired and trained and present, and why a
company that expanded considerably since Alien was trained had not proportionately
developed the ability to train now (which the CO noted was customary with growth and
development). In rebuttal to the NOF, Employer's counsel submitted a letter detailing why
Employer needed Alien rather than a U.S. worker. The letter did not give the name of the
person who trained Alien, the change in the total work force and annual volume of business
from the time Alien was hired to present, and why a company which expanded has not
developed proportionately the ability to train now. The CO denied certification and the Board
affirmed. The Board reasoned that there was no underlying documentation to support the
counsel's statements and it is well established that assertions by an employer's attorney that are
not supported by the underlying statements by a person with knowledge of the facts do not
constitute evidence. Marina Ice Cream Company, 95-INA-93 (Jan. 27, 1997).
Although rebuttal information must be provided by the employer, not his attorney, when the
employer is totally physically disabled it is reasonable for the attorney to respond on behalf of
the employer. Jacob Breakstone, 94-INA-534 (Aug. 1, 1996).
F. Technical matters
If the job offered involves technical requirements, the employer carries the burden to
present understandable evidence to the reviewing official. Emerson Electric
Co., 90-INA-486 (Feb. 19, 1992).