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."
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.
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
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).
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
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
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
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
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
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
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)
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
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
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
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
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
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.
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
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
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
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
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."
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
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
[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
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
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
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).
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
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
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
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
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
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
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
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
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.
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
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
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.
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
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
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