ABILITY TO PAY

• Sole proprietorship, overall fiscal circumstances
• Certified financial statement

ACTUAL MINIMUM REQUIREMENTS/ALIEN'S QUALIFICATIONS

• Alien gained qualifying experience with the employer, general rule
• Alien's prior experience
• Similar/dissimilar positions
• Different employers/locations
• Infeasibility to train
• Alien's qualifications, generally: sufficiency of documentation
• Tailoring to the Alien's qualifications
• Tailoring the Alien's qualifications: alternative job requirements
• State licensure requirements

ALIEN OWNERSHIP AND CONTROL

• Sufficiency of employer's evidence
• Self-employment as a per se bar
• Financial interest of alien; inseparability of alien's business interests
• Familial relationship

DUE PROCESS

• Adequacy of NOF and Final Determination
• Issue or evidence raised for the first time in the Final Determination
• Issue raised in original NOF but not preserved in subsequent NOF
• Final Determination: errors by the CO in the Final Determination do not relieve failures of proof in the rebuttal where the NOF gave adequate notice of the issue
• BALCA may remand for consideration of issues not previously adjudicated
• CO is an impartial adjudicator, not an adversary of the employer
• Impossibility of completion of rebuttal within 45 day period
• Undisclosed evidence
• BALCA review limited to grounds cited by the CO

EMPLOYMENT

• Sufficiency of documentation
• Individual as employer
• Subcontractor relationship, transfer of ownership
• Full-time - sufficient duties to keep worker occupied during the day
• Full-time v. seasonal and temporary work - sufficient workto keep work occupied for full calendar year

EVIDENCE

• Burden of proof
• Definition of documentation
• Hearsay
• Weighing of evidence: party status is not, in itself valid basisfor evaluation of evidence
• Translation: ease of seeking
• Technical Assistance Guide (TAG)
• Statements of counsel as evidence
• Authority of CO to go outside record supplied by the employer
• Statements made under penalty of perjury
• Scope of CO's authority to request information

JOB TITLE

• Determining the correct job title
• CO's suspicion that the job was misclassified and is not a bona fide job opportunity

GOOD FAITH EFFORTS TO RECRUIT

General principles

• Sufficiency of efforts: documentation must be of reasonable efforts to contact U.S. applicants rather than of actual contact: bare assertion without supporting reasoning or evidence is generally insufficient

Evidence

• Sufficiency of evidence: telephone billing records
• Sufficiency of evidence: documentation found sufficient
• Sufficiency of evidence: documentation found insufficient
• Evidence: contemporaneous evidence, probative value of
• Evidence: responses to recruitment, probative value of
• Relevancy of pre-application recruitment

Particular actions and issues

• Alien involvement in interview
• Calling only one of several telephone numbers
• Discouraging U.S. applicants
• Diversion of U.S. applicant
• Misunderstanding about location or date of interview
• Placing burden on applicants to contact employer
• Post-NOF contact of applicants: whether lack of interest at that time cures initial bad faith recruitment
• Speaking or leaving a message with an applicant's family member
• Timeliness of contact
• Travel expenses

Additional recruitment

• Further recruitment: authority of CO to require: CO's obligation to explain why alternative publication is required
• Further recruitment: authority of CO to require union recruitment

MISCELLANEOUS

• Exceptional ability in the performing arts: relevant population for comparison
• Special handing cases: College or university teacher: alien only prospective candidate for degree
• Special handing cases: College or university teacher: DOL regulations do not include elementary or secondary school teachers
• Prior recruitment efforts: sufficiency of documentation
• Schedule B Waivers
• Professional responsibility: maintaining willful ignorance about details of application

PREVAILING WAGE

General principles

• Employer's burden of proof
• CO's responsibility to explain determinations and to provide notice of burden of proof
• Equitable considerations
• Fringe Benefits
• Sufficiency of CO's survey: true arithmetic mean
• Posture of case if challenge fails

Similarly employed

• Similarly employed: nature of employer's business: charitable organizations
• Similarly employed: Federal pay schedule
• Similarly employed: nature of employers being compared historically black colleges
• Similarly employed: sufficiency of employer's survey: area of intended employment
• Similarly employed: sufficiency of employer's survey: limitation to like employers

DBA and SCA

• DBA wage determinations
• SCA wage determinations

PROCEDURE

• Precedent: Pre-BALCA Decisions
• Request for BALCA review, failure to state grounds
• Request for BALCA review, timeliness
• Request for BALCA review, standing of the alien
• Request for BALCA review, request for extension of time
• Request for BALCA review, motion for reconsideration is not a request for Board review
• En Banc Procedure

REBUTTAL

• Employer must perfect record sufficient to grant certification Page at rebuttal stage
• Timeliness - discretion of CO to refuse to consider untimely rebuttal
• Timeliness - sufficiency of notice of due date
• Timeliness - equitable tolling
• Offer to readvertise if rebuttal not accepted

RECONSIDERATION BY BALCA

• Authority to reconsider
• Standard for determination of whether to reconsider
• Denial where motion merely reargues issues
• Evidence or argument not previously presented
• Time period for filing
• Standing of alien

RECONSIDERATION BY THE CO

• Requirement that CO rule on motions to reconsider
• Circumstances justifying denial

REJECTION OF U.S. WORKERS

General principles

• General principles
• Burden of proof
• Sufficiency of evidence
• "As qualified" standard
• CO's obligation to state why employer's rejection of a U.S. worker was unlawful and to raise the issue timely
• U.S. applicant who fails to meet the employer's unchallenged job requirement may be rejected
• U.S. applicant who meets the employer's job requirements may not be rejected as unqualified
• U.S. applicant whose resume indicates a reasonable prospect that he or she is qualified: employer must investigate further

Particular grounds

• Availability of U.S. worker
• Currency of U.S. applicant's knowledge
• "Fortuitous cure" cases [contacting applicants after the NOF]
• Lack of commitment of U.S. applicant to stay in the job
• Lack of experience in job duty
• Overqualified U.S. applicant
• Relationship to competitor
• Salary offer: job must actually be offered
• Subjective grounds for rejection
• Tests and questionnaires
• Unstated requirement
• Verification of employment

SCOPE OF BALCA REVIEW

• General review authority
• Limitation to evidence and argument presented before the CO
• Evidence submitted with a motion for reconsideration
• Issues raised and preserved by the CO
• Deference to credibility findings of panel
• Lack of authority to rule on validity of the regulations
• Review of SCA wage determinations

UNDULY RESTRICTIVE JOB REQUIREMENTS/BUSINESS NECESSITY

Unduly restrictive job requirements:

• Regulation's requirements are conjunctive
• When CO may raise issue of unduly restrictive job requirements
• Job duties as requirements

Business necessity

• Business necessity: general standard: Information Industries test
• Business necessity: cooking specializations
• Business necessity: combination of duties
• Business necessity: experience and educational requirements
• Business necessity: foreign language requirements
• Business necessity: grade point average
• Business necessity: live-in and spilt-shift requirements
• Business necessity: nonstandard work hours
• Business necessity: proficiency/familiarity with employer's equipment, systems, software, etc.
• Business necessity: union membership

Rebuttal

• Rebuttal: offer to reduce restrictive requirements and readvertise