Apr. 7, 2004

2003-INA-97

CARNICERIA TRES AMIGOS
Decision and Order

Good faith efforts to recruit: non-responsive rebuttal: in NOF CO raised issues regarding timing of contact and whether one applicant had been contacted at all: rebuttal did not respond to these issues but argued instead that the applicants were not qualified. Denial of labor certification affirmed.

Apr. 7, 2004

2003-INA-100

CHILITOS
Decision and Order

Business necessity: two years of experience requirement for Foreign Food Specialty Cook: panel affirms CO's finding that Employer was essentially a fast food shop not justifying the two year requirement

Apr. 12, 2004

2003-INA-44 and 45

SISNEROS, INC.
Decision and Order

Rejection of U.S. workers: where U.S. workers were facially qualified, Employer had an obligation to contact and interview the applicants: Employer's contact with an applicant's previous employer did not provide a basis for failing to contact and interview that applicant

Apr. 12, 2004

2003-INA-46

PROFESSIONAL STAFFING SERVICES
Decision and Order

Rejection of U.S. workers: U.S. worker qualfied: Employer initially rejected a U.S. applicant as unqualified because she had “no knowledge of the job description,” even though she met the Employer’s educational requirements: since Employer did not require familiarity with the job description, only a degree in a related field., its rejection on the basis of lack of knowledge was unlawful.

Rejection of U.S. workers: undisclosed requirement: In rebuttal proffered a new reason for rejection of the applicant – that she was not interested in the required travel between facilities: a travel requirement, however, had not been stated in the ETA 750A or the advertisement; rejection of an otherwise qualified U.S. applicant for failure to meet an undisclosed requirement is unlawful.

Apr. 12, 2004

2003-INA-49, 50 and 52

FACUNLA FAMILY HOME
Decision and Order

Job requirements: where the advertisement for the position of Residence Supervisor included job requirements related to the care of mentally retarded clients, such was not listed as job requirement on the ETA750A, and the Employer refused to readvertise as directed by the CO, labor certification was properly denied. Panel noted that the question was not whether the advertisement merely advised applicants of the realities of the job as argued by the Employer, but whether the job had been accurately described in the ETA 750A

Apr. 12, 2004

2003-INA-125

GLOBAL VENTURE
Decision and Order

Good faith efforts to recruit: where recruitment letters did not provide timely notice to applicants prior to the date of their scheduled interview, Employer did not engage in good faith recruitment: recontacting the applicants six months later after the NOF had been issued did not remedy the citation

Apr. 28, 2004

2003-INA-124

GLOBAL VENTURE
Decision and Order

Rejection of U.S. workers: changing explanations as to reason for rejection, lack of credibility: Employer failed to establish that the U.S. applicant was not qualified or not interested in the position

Apr. 28, 2004

2003-INA-130

LAS PALMAS RESTAURANT
Decision and Order

Business necessity: Employer did not establish business necessity for a three experience requirement as a Japanese Cook where its menu consisted primarily of Mexican dishes: the mere fact that a few Japanese dishes were on the menu and Employer's mere assertion that Japanese food was becoming more popular did not establish business necessity for the experience requirement.

Apr. 29, 2004

2003-INA-127

DC COMPUTER CONSULTANTS CO.
Decision and Order

Good faith efforts to recruit: where the Employer contacted the applicants 16 days after the date of the EDD’s referral of resumes, initiated the contact within 14 days of receipt of the resumes, Employer received 11 resumes, and the qualifications required were fairly complex, the panel found that the Employer had demonstrated that the time between his receipt of the resumes and the attempted contact was reasonable.

Due process: raising a new issue in the FD: where the CO questioned in the NOF whether the Employer had used an undisclosed requirement of familiarity with computer mainframes, and the Employer provided rebuttal to show to that it had used a term that was synonymous with mainframe, and in the FD the CO did not discuss the rebuttal but rather found that certain applicants had mainframe experience and were unlawfully rejected, the panel found that the FD raised a new issue that should have been addressed in a supplemental NOF rather than FD. Remanded for further proceedings.

Apr. 29, 2004

2003-INA-148

DRYWALL SYSTEMS, INC.
Decision and Order

Rejection of U.S. workers/good faith efforts to recruit: denial of labor certification affirmed where Employer failed to document any attempt to contact seemingly qualified applicants for the position of painter beyond unanswered letters: in rebuttal, Employer argued that the applicants were not qualified, but the panel found that the applicants showed enough apparent qualifications that they could not be summarily rejected based on their resumes.

May 19, 2004

2003-INA-91

GUAM T & Y CORPORATION
Decision and Order

Unduly restrictive job requirements: the CO misinterpreted the Employer's experience requirement, which was for a total of 10 years of experience rather than alternatives of a BA plus two years of experience in quality control or eight years in project management; panel remanded so that the CO could investigate whether the 10 years total experience was an unduly restrictive job requirement.

May 20, 2004

2003-INA-18

LAW OFFICE OF JEAN PIERRE KARNOS
Decision and Order

Employer: change in employers: where the attorney who originally sponsored the application died and, due to the sudden nature of the death, there was no formal agreement with the attorney who took over the deceased attorney's practice, the panel found that under the unique circumstances of the case, and where there had been an adequate test of the labor and the position for which labor certification was sought remained the same, it did not offend the policies of labor certification to permit the change in employer. Denial of labor certification reversed.

May 20, 2004

2003-INA-120

STATEWIDE WOODFINISHING
Decision and Order

Unduly restrictive job requirement: job classification: panel found that the CO used the wrong DOT job classification in finding that Employer's experience requirement needed to be justified by business necessity. The CO choose "Supervisor, Quality Control (furniture)" primarily because the Employer sought a supervision: panel found, however, the actual job duties better matched Furniture Finisher (woodworking), which provided for a longer SVP. Denial of labor certification reversed.

May 25, 2004

2003-INA-137

UKAY TRUCKING AND DELIVERY SERVICE
Decision and Order

Good faith efforts to recruit: failure to follow up with phone calls

May 26, 2004

2002-INA-274

ANTHONY T. LEE, M.D.
Decision and Order

Job opportunity must conform to federal, state and local laws: Employer failed to establish that nursing with training duties would not require a state license: offer to readvertise not binding on CO as this was not a business necessity citation

May 26, 2004

2003-INA-21

HORIZON INTERNATIONAL FINANCE & TRADE INC.
Decision and Order

Good faith efforts to recruit: Employer's documentation unpersuasive

May 26, 2004

2004-INA-100

CARDENAS MARKET, INC.
Order of Dismissal

Appeal withdrawn.

June 2, 2004

2003-INA-302 et al

SUN MICROSYSTEMS, INC.
Order Granting Reconsideration

Panel's original decision that was upon denial of RIR, DOL procedure (under the procedures specified in GAL, 1-97, Change 1, popularly know as the "Ziegler Memorandum) is to remand to SWA for regular processing rather than CO denying application outright, as ruled in Compaq Computer. The panel therefore remanded the case with a mandate to remand to the SWA for regular processing. Sun Microsystems, Inc., 2003-INA-302, et al (Mar. 12, 2004)

The CO filed a motion for reconsideration, arguing that a CO should have the option of granting the RIR, and reissuing the NOF in order to avoid a time consuming remand to the SWA. The panel granted the motion because it was unopposed, but expressed concern that such a procedure was not necessarily procedurally fair, and therefore limited the holding to exact facts of the case sub judice. Sun Microsystems, Inc., 2003-INA-302, et al (June 2, 2004)

June 2, 2004

2003-INA-256

SUN MICROSYSTEMS, INC.
Order Granting Motion to Vacate Dismissal and Motion to Remand

Employer's motion to withdraw was granted in Sun Microsystems, Inc., 2003-INA-256 (Mar. 29, 2004); however, upon learning of the disposition in Sun Microsystems, Inc., 2003-INA-302 (Mar. 12, 2004), which granted Employer's motion to remand under Compaq Computer , Employer moved to vacate the withdrawal and joinder with the other remanded cases. This unopposed motion was granted in Sun Microsystems, Inc ., 2003-INA-256 (June 2, 2004); however, modified to comply with the CO's unopposed motion to modify the terms of the remand which was granted in Sun Microsystems, Inc., 2003-INA-302, et al (June 2, 2004)

June 8, 2004

2003-INA-79

JADEL JEWELERS
Decision and Order

Business necessity: foreign language requirement: panel agreed with CO's statement that a mere contention that a large customer base is made up of a specific nationality, or listings of names bearing a certain ethnicity, does not substantiate the need of a foreign language requirement

Good faith efforts to recruit: when applicant did not respond to letter, Employer should have made attempt to telephone the applicant

June 8, 2004

2003-INA-89

VINTAGE V-12
Decision and Order

Good faith efforts to recruit: use of questionnaire: Panel wrote: "The issue in this case is whether the Employer may lawfully require a U.S. worker to submit to a questionnaire designed to measure his or her qualifications, without listing it as a requirement for the advertised position. The CO apparently mischaracterized the answering of the questionnaire as a term or condition of employment. The ETA 750A and the recruitment advertisements were explicit in requiring knowledge of the antique airplane restoration process. (AF 61, 109). It is this knowledge that is the true condition of employment for the position, not the answering of the questionnaire. Thus, assuming the questionnaire simply asks the same questions that would inevitably be asked at any typical interview in order to determine a worker’s qualifications the Employer may require a worker to submit to such a questionnaire without prior notice. See, e.g., Allied Towing Service, 1988-INA-46 (Jan. 9, 1989)(en banc)." However, CO’s concern over the validity of the test was reasonable, and denial affirmed on ground that Employer failed to provide copy of test and scoring sheets as requested by the CO.

June 8, 2004

2003-INA-96

DAVID MULYATNA
Decision and Order

Good faith efforts to recruit: leaving a message: Panel held that "it is unacceptable for an employer to assume that a U.S. applicant is not interested based solely on a phone conversation with a third party. Leaving a message with a third party does not relieve an employer’s burden to attempt to contact the applicant directly. "[A]n employer who wants to consider an applicant seriously must go further than merely speaking to[a third party] by telephone.&auot; Switch, U.S.A., Inc., 1988-INA-164 (Apr. 19, 1989)(en banc)."

June 8, 2004

2003-INA-123

BEST WESTERN (SUTTER HOUSE)
Decision and Order

Alien's qualifications: experience gained on the job: alien considered to have gained the requisite experience with the sponsoring employer where the Employer's reservations system could only be learned at a Best Western hotel, and the Alien had gained her experience is a Best Western hotel in a different location.

June 8, 2004

2003-INA-290

MOTOROLA, INC.
Decision and Order

Reduction in recruitment: Compaq Computer remand: after denying the RIR request, CO should have remanded to the SWA for regular processing rather than denying entire application outright

June 16, 2004

2003-INA-19

EMPSON DENTAL LABORATORY
Decision and Order

Good faith efforts to recruit: Employer did not recruit in good faith where it sent letters to two facially qualified applicants directing that they complete employment applications: the letter was unsigned, did not include the name of the Employer, the name of a contact person, and/or a telephone number

June 16, 2004

2003-INA-22

PLEXUS GUEST HOME
Decision and Order

Due process: remand for issuance of new NOF where problems related to the placement and timing of the advertisement during the most recent recruitment effort were first raised in the FD

June 16, 2004

2003-INA-30

TONY'S FENCE COMPANY, INC.
Decision and Order

Actual minimum requirements: tailoring to the alien's qualifications: Employer admitted that Masters' Degree in Economics was required because the Alien had such a degree and that it had hired other workers' in the past without such a requirement

Business necessity: foreign language requirement: failure to document business necessity

June 16, 2004

2003-INA-107

STAFFING SERVICES
Decision and Order

Good faith efforts to recruit: Employer reported that 37 applicants purportedly contacted by the Employer confirmed their interviews, yet failed to appear at the scheduled times: CO requested that the Employer provide documentation of contact, specifically, telephone bills: in rebuttal, Employer simply resubmitted the information stated in the recruitment report: bare allegations that Employer had contacted the applicants, unsupported by phone bills or records or any evidence that the Employer had attempted to procure such documentation, insufficient to carry Employer's burden.

June 16, 2004

2003-INA-108

STAFFING SERVICES
Decision and Order

Good faith efforts to recruit: Employer reported that the three applicants purportedly contacted by Employer failed to appear for their scheduled interviews: CO requested that the Employer provide documentation of contact, specifically telephone bills. In rebuttal, Employer simply resubmitted the information stated in the recruitment report and a copy of an unsigned letter with no accompanying postmark or proof of mailing. Denial of labor certification affirmed.

June 16, 2004

2003-INA-109

STAFFING SERVICES
Decision and Order

Good faith efforts to recruit: Employer reported that 22 applicants purportedly contacted by Employer failed to appear for their scheduled interviews and that 23 other applicants were not interested in the job. In light of this fact, the CO requested that Employer provide documentation of contact, specifically telephone bills: Employer simply resubmitted the information stated in the recruitment report. The Employer did not submit any telephone bills or records or any documentation that same had been requested from the telephone company and relied solely on its unsupported assertions of attempted contact.

June 16, 2004

2003-INA-132

DON BEYER VOLVO
Decision and Order

Good faith efforts to recruit: Employer presented no proof that established that it actually contacted 8 U.S. applicants before rejecting them

June 16, 2004

2003-INA-151

WALKER MATTHIESSEN BUILDERS
Decision and Order

Good faith efforts to recruit: follow up letter to 19 apparently qualified applicants for the position of carpenter required applicants to complete an employment application that required no more specific information than what was already apparent upon review of the applicants’ resumes. Panel found that it appeared that Employer had improperly placed the burden of follow-up on the applicants instead of "intensively" recruiting as required by the regulations. Denial of labor certification affirmed.

June 16, 2004

2003-INA-156

TRED MANOR
Decision and Order

Good faith efforts to recruit: CO's denial of labor certification affirmed where Employer did not contradict the CO’s finding that he failed to provide a phone number in the letters to the applicants setting a time for an interview, failed to document that the letters were sent certified mail and failed to document that the letters were even sent. Moreover, the Employer failed to explain his failure to provide any evidence that such documentation was not reasonably obtainable.

June 16, 2004

2003-INA-157

F.G. LANDSCAPE INC.
Decision and Order

Rebuttal: timeliness: on review before BALCA, the Employer submitted a mail receipt indicating that it had timely mailed a recruitment letter to a U.S. applicant: this evidence, however, had not been presented to the CO, even though timely contact of the applicant was the issue raised in the NOF: panel affirmed the CO because the evidence had not been timely filed before the CO

June 16, 2004

2003-INA-160 to 165

ALVAREZ INC.
Decision and Order

Rejection of U.S. workers: Employer stated in rebuttal that applicants must have complete knowledge of all types of stone and be able to install such material in residential and commercial areas: panel affirmed CO's denial on this basis because this requirement had not been listed in the ETA750A, and because it was vague

Good faith efforts to recruit: CO's denial affirmed where Employer was unable to document its contact of the U.S. applicants

June 16, 2004

2003-INA-171

BLISS SMULIAN
Decision and Order

Good faith efforts to recruit: where the Employer's effort to contact 19 US applicants was minimal – a a single phone call or a single e-mail – and the phone logs only confirmed that Employer's efforts to contact applicants were minimal – and the SWA provided the Employer with repeated notice of the need for a well- documented recruitment report – the CO properly denied labor certification because the Employer failed to document good faith efforts to recruit.

June 17, 2004

2003-INA-17

EMERALD TERRACE CONVALESCENT HOSPITAL
Decision and Order

Actual minimum requirements: Nurse Licensed Practical position: Employer required two years of experience in the job offered or in "any related nursing position" and a valid vocational license: where the Alien was hired as an unlicensed Nurse Assistant; the Employer allowed the Alien time to work in that capacity and obtain an LVN license and then, the Employer offered the Alien the similar position of Licensed Vocational Nurse, and the Employer failed to establish why it is not now feasible to train, CO's denial of labor certification affirmed. Panel found that Employer's mere assertion that the Nurse Assistant position was a lower level position than the Licensed Vocational Nurse position to establish sufficient dissimilarities between the two positions under Delitizer Corp. of Newton, 1988-INA-482 (May 9, 1990)(en banc).

June 18, 2004

2003-INA-28

TONY'S FENCE COMPANY, INC.
Decision and Order

Business necessity: foreign language requirement: where the Employer's only ground for requiring a welder to speak Polish was that the incumbent's co-workers are native Polish speakers who have minimal fluency in English, the case was exactly on point with Lucky Horse Fashion, Inc., 1997-INA-182 (Aug. 22, 2000)(en banc): panel held that the Employer's evidence that its entire staff is comprised of native Polish speakers with minimal fluency in English "standing alone, does not establish that the use of the Polish language bears a reasonable relationship to the occupation of welder, production line within the context of the Employer’s business. Therefore, the Employer has not satisfied the first prong of the Information Industries business necessity test."

June 18, 2004

2003-INA-134

EMILY WALDER
Decision and Order

Employer: physician who uses a bookkeeper for payment of wages, taxes, and benefits to the Alien was found to be the "Employer " under the circumstances of the case, where the bookkeeper charged the physician a "service fee " for the costs of bookkeeping and did not manage or supervise the Alien’s work, nor did it determine the wages and benefits the Alien will receive; panel stressed that its decision in this matter was based on the unique circumstances presented and that in general, "shared employee contracts" would not support a grant of labor certification under the Act; denial of labor certification reversed.

June 22, 2004

2003-INA-116

SHARP CUT CORPORATION
Decision and Order

Full time employment: landscaper: Employer's own evidence showed payments of less than a full year duration: Employer's filed motion for reconsideration arguing that pay records were based on a employee who took time off for personal reasons and that it now had snow removal contracts to keep employees busy throughout the year: panel held that CO was not required to consider evidence submitted after rebuttal period had expired: moreover, even if the evidence was considered it did not prove the existence of full time work

June 22, 2004

2003-INA-117

FORT MYER CONSTRUCTION CO.
Decision and Order

Good faith efforts to recruit: although the Employer accurately cited Joyful Manor, 2001-INA-157 (March 27, 2002) aff'd on recon, Joyful Manor, 2001-INA-157 (June 5, 2002), for the proposition that when “no notice is provided that alternative means of contact will be required to document good faith in recruitment, the denial of certification cannot be denied solely on that ground.” the panel noted that Joyful Manor does not alter the Employer's burden of establishing overall good faith efforts to recruit, citing Norma Diamond, 2003-INA-122 (Sept. 4, 2003). Thus, where the Employer's only recruitment effort was a single telephone message left on the answering machines of the two applicants its overall recruitment efforts were not sufficient to establish good faith, and the panel found that the failure of proof of good faith in recruitment was attributable in any way to inadequate instructions from the local job service or the CO. The panel also observed that caselaw about leaving messages has been established for over a decade and that the Employer was represented by counsel throughout the process.

June 22, 2004

2003-INA-181 to 195

LIANN'S HOMES
Decision and Order

Job clearly open to U.S. workers: CO accepted Employer's evidence as establishing that it was offering a bona fide job opportunity for 14 managers of residential care facilities, but nonetheless required Employer to establish that the job was clearly open to U.S. workers: Employer only response was that an application for a similar position with a different employer had been approved: panel held that "Approval of a similar application does not establish that the position for which the Employer seeks certification is clearly open to any qualified U.S. worker."

On appeal, Employer presented a newspaper article discussing a nursing shortage in Arizona: panel held that this was untimely evidence that could not be considered on appeal, but that even if it was, "the shortage of qualified workers in an occupational field does not establish a bona fide job opportunity in this case."

June 30, 2004

2003-INA-77

ELEGANT INTERIORS
Decision and Order

Rejection of U.S. workers: untimely contact: Employer contributed to delay in receipt of resumes where it did not inform the SWA of its change of address until shortly before its move: Employer asserted that it attempted contact by e-mail, but did not present copies of the e-mails it sent, but only copies of responsive e-mails, which did not show the original message or the date it was sent

June 30, 2004

2003-INA-131

ETREBY COMPUTER CO. INC.
Decision and Order

Business necessity: combination of duties: tailoring to the alien's qualifications: the offered position was Translator - Software Hairstyling and Hair Designing, the duties of which were to translate instructional, promotional and other written documents on hairstyling and hair designing from English to German and to prepare translated materials into proper format as computer software: Employer failed to document its assertion that its two year experience as a hairstylist requirement was necessary because of language, terminology, and expressions unique to the hairstyling business: application also violated Francis Kellogg, 1994-INA- 465 and 544, 1995-INA-68 (Feb. 2, 1998)(en banc) (alien only qualified under alternative job requirement).

June 30, 2004

2003-INA-203

GREEN ACRES GROUP HOME
Decision and Order

Bona fide job opportunity: where Employer's state license allowed it to operate a group home for children under the age of eighteen, but the position being advertised was described as caregiver for adults aged eighteen to fifty-nine years, the Board affirmed the CO's finding that the advertised position is not the one which actually exists with the instant Employer: offer to change job description made in request for BALCA request was too late

June 30, 2004

2003-INA-207

SHIPLEY'S DONUTS
Decision and Order

Due process: confusing and unclear NOFs and FD: CO initially raised issue whether a two year experience requirement for a baker is an unduly restricitive job requirement: in a SNOF, CO confessed error insofar the SVP for a baker permits a two year experience requirement, but the CO then proceeded to continue to inquire into baking requirements/duties using confusing terminology such as "unduly restrictive" and "business necessity": citation to section 656.20(c)(8) needed to be better defined to permit the Employer to know what it was rebutting, see Carlos Uy, III, 1997-INA-304 (Mar. 3, 1999)(en banc) (importance of precision when using 656.20(c)(8)): FD needed to be more precise so that BALCA would know the specific violation being cited: remand

June 30, 2004

2003-INA-214

RONDALE CONSTRUCTION INC.
Decision and Order

Good faith efforts to recruit: discouraging applicants, and Due process: raising issue for the first time in a FD: the Board agreed with the CO that the tone of the Employer's letter to applicants -- "[y]et it is not clear from your resume whether you posses (sic) the required experience for this position. If you feel that you have the necessary experience and are interested in this position, please call me to set up an interview" -- was discouraging to the applicants (all of whom showed the required experience on their resumes). Although the CO properly raised the issue, it was not raised until the FD thereby denying the Employer an opportunity to rebut. Remand.