January 8, 2004

2002-INA-105

RANCHITO COLETERO
Decision and Order
EN BANC

Ability to pay: personal assets of sole proprietorship should be considered if proffered: distinction of ability to pay issue from bona fide job opportunity analysis

January 8, 2004

2003-INA-209

ANA STEMBERGA OF BERNAL HEIGHTS RETIREMENT HOME
Order of Dismissal

Withdrawal of appeal

January 8, 2004

2003-INA-266

R AND N RESIDENTIAL CARE HOME
Order of Dismissal

Withdrawal of appeal

January 9, 2004

2001-INA-121

CRAWFORD & SONS
Decision and Order
EN BANC

Full-time/seasonal employment: landscapers: Vito Volpe reaffirmed

January 9, 2004

2002-INA-294

SHOGUN ENTERPRISES INC
Decision and Order

Rejection of US workers: shifting explanation: CO not required to accept reason first stated in rebuttal

January 14, 2004

2002-INA-293

CAREGIVERS MANOR
Decision and Order
[REMAND]

Job Title: CO categorized job as a residential supervisor rather than as an administrator, and therefore found that Employer requirement of a RCFE (Residential Care Facility for the Elderly) course was unduly: the panel concluded that the Employer had been denied the opportunity to contest the CO's classification, noting that the unchallenged job duties listed in the ETA 750A included administrative aspects.

Due process: CO had questioned whether job was for a manager or a supervisor of residential care facility: stated job duties included administrative functions: issue whether position required state course needed to be further investigated.

Due process: offer to readvertise if rebuttal rejected [compare Ronald J. O'Mara , 1996-INA-113 (Dec. 11, 1997)(en banc)]

January 22, 2004

2002-INA-303

DISCPAK
Decision and Order

Rejection of U.S. workers: "Although general experience in a field does not equate to specific experience, the issue must be decided on a case-by-case basis. See, e.g., Harris Corp., 1988-INA-293 (Jan. 5, 1989)." In the case sub judice, there was no evidence that an applicant with experience with semi-conductors would not be able to perform the duties required with CD ROMs and Employer, at a minimum, had the duty to contact such an applicant Lee for an interview to further investigate his credentials.

Rejection of U.S. workers: undisclosed requirement: requirement was listed in an advertisement and posting, but not in the ETA 750A: the panel held that "actual minimum requirements must be those that appear on the ETA 750A, in order that the CO can review and challenge them if unduly restrictive. Lakeview Food Store, 1992-INA-258 (Dec. 22, 1993)."

Rebuttal: offer to cure: an offer to amend the ETA 750A and re-advertise would not cure a deficiency in recruitment, where an applicant was rejected for other than lawful, job-related reasons unrelated to the matter on which the offer to cure was proffered.

January 22, 2004

2002-INA-275

HOLLEN IVONNE SMITH
Decision and Order

Bona fide job opportunity: domestic cook: application of Carlos Uy III totality of the circumstances test: lack of sufficient duties to keep cook occupied, although not necessarily determinative, lessens credibility: employer originally described job as a combination of housekeeper and domestic cook

January 22, 2004

2002-INA-289

VIP EXPRESS INC.
Decision and Order

Good faith efforts to recruit: letters sent to applicants were not welcoming, presented a hurdle by requiring the submission of an additional employment application, did not indicate that an interview would be scheduled, and did not even identify Employer.

February 10, 2004

2002-INA-302

ADVANCE BLINDS CORP.
Decision and Order

Rejection of U.S. workers: test or questionnaire: "Although an employer may in some circumstances use a test or a questionnaire to ascertain the extent of the applicant's claimed experience, this is not permissible when used as a means of discriminating against U.S. workers."

February 10, 2004

2003-INA-38

VIRGINIA FAJARDO
Decision and Order

Bona fide job opportunity: Employer's wage offer constitutes more than the Employer's adjusted gross income: no evidence that the Employer reported the Alien's wages to the INS or that it paid the required Federal employment tax

Ability to pay: Employer's wage offer constitutes more than the Employer's adjusted gross income.

February 10, 2004

2002-INA-277

NATEL ENGINEERING CO., INC.
Decision and Order

Rejection of U.S. workers: experience in job offered (auditor): Employer rejected some applicants for lack of experience as an auditor in the microelectronics field: the panel rejected Employer's argument that such experience is inherent requirement by virtue of the fact that Employer is a microelectronics manufacturing firm: the panel held that "the job duties were those associated with experience in the financial and accounting field, not the microelectronics field....If Employer required more specific experience, it should have been noted in order that the CO could challenge the requirement, if necessary."

Rejection of U.S. workers: unstated requirement: Employer unlawfully rejected an applicant for the position of auditor for lack of experience in ISO 9001 certification where such a requirement was not stated in the ETA 750A

February 11, 2004

2003-INA-39

ESCAMILLA & SONS, INC.
Decision and Order

Good faith efforts to recruit: Employer placed advertisement in the "Legals" section rather than the "Help Wanted/Employment Opportunities" section of the newspaper's classifieds

February 11, 2004

2003-INA-40

MARIO J. RAMIREZ
Decision and Order

Bona fide job opportunity: child tutor: "By deleting both the duties of tutoring and the duties of general housework [in response to the CO's finding of a combination of duties], Employer has completely changed the job to a basic child monitor position. The job offered is no longer that of a child tutor, the position for which Employer advertised, recruited and petitioned."

February 12, 2004

2002-INA-222

ERICK & ELIZABETH GERSHON
Decision and Order

Business necessity: combination of duties: Landscape Gardener and Houseworker, General: application of Robert L. Lippert Theatres, 1988-INA-433 (May 30, 1990)(en banc) standard: mere inconvenience: failure to establish infeasibility of alternatives: evidence of tailoring of job to the alien's qualifications

February 17, 2004

2002-INA-296

PRECISE ELEVATOR PRODUCTS, INC.
Decision and Order

Rejection of U.S. workers: Employer's bare assertion that an applicant did not have the experience necessary to perform a job was not persuasive where the rationale for rejecting the applicant changed only after issuance of the NOF and Employer's assertion that the applicant was not familiar with the tools necessary to perform the job (elevator repairs) was not credible in light of the applicant's resume which indicated considerable relevant experience

February 17, 2004

2002-INA-244

RENAISSANCE AT THE DANA POINT CAFÉ
Decision and Order

Ability to pay: "The mere fact that an employer shows substantial sales on an income tax return, while potentially a credible and significant fact, does not standing alone provide proof of ability to provide permanent, full-time employment."

February 18, 2004

2002-INA-259

CYBER DIALOGUE, INC.
Decision and Order

Rejection of U.S. workers: undisclosed requirements: "core duty" not listed on the ETA 750A or the advertisement

February 18, 2004

2002-INA-262

LUZ A. MORABE-NAVAL, M.D., PA
Decision and Order

Business necessity: cooking specialization for domestic cook position (Filipino style food): no showing why a cook could not meet Employer's needs by following recipes in a cookbook

February 18, 2004

2002-INA-263

SHANTI PRASHAD
Decision and Order

Ability to pay: domestic cook position: Employer's wage offer constituted more than her taxable income

February 18, 2004

2002-INA-264

MURIEL SPORTELLI
Decision and Order

Bona fide job opportunity: domestic cook: W-2 tax statements do not substitute for the CO's request for copies of federal tax returns as they do not show Employer's disposable income

February 18, 2004

2002-INA-265

CLARE AND HARVEY ANGER
Decision and Order
Remand

Due process: remand where the CO's Final Determination did not address the majority of Employer's rebuttal evidence but summarily denied certification

February 18, 2004

2002-INA-297

IRISH PAINTING CO., INC.
Decision and Order

Employment: viability of business (painting): Employer's documentation had a two year gap leaving open the possibility that this was only seasonal work: Employer's assertion that he used a leasing service to provide employees due to a shortage of qualified workers in the area failed to address the CO's concern of whether Employer's business is an ongoing concern

February 23, 2004

2002-INA-268

JEAN-FRANCOIS DREYFUS
Decision and Order

Due process: failure of CO to fully consider rebuttal: remand

February 24, 2004

2002-INA-266

ST. AUGUSTINE'S SCHOOL
Decision and Order

Prevailing wage: employer argued that because the job offer was for an elementary school teacher in the parochial sector a lower salary was appropriate and justified. Panel found that "the nature of Employer.s business is irrelevant and other than the additional element of the religious instruction, there is nothing in the record suggesting that the skills and knowledge required for the petitioned position are any different than those of a public sector elementary school teacher."

February 24, 2004

2002-INA-269

USHA MEHTA
Decision and Order

Rebuttal: a CO's finding which is not addressed in the rebuttal is deemed admitted

February 25, 2004

2003-INA-4

ALAR STAFFING CORPORATION
Decision and Order

Rejection of U.S. workers: undisclosed requirement of experience in the job: Employer's mistaken assertion that applicant's resume did not show that he was bilingual

February 25, 2004

2003-INA-25

KELLY'S TAVERN, INC.
Decision and Order

Bona fide job opportunity: Foreign Food Specialty Cook: inadequate documentation: CO questioned need for Mexican foods specialty and directed submission of menu and resumes of former incumbents; on rebuttal Employer submitted a handwritten copy of "Blackboard Specials" and statement of cook; panel affirmed CO's finding that the documentation was an inadequate response to the NOF; on appeal Employer submitted menu and resumes of applicants, but panel did not consider this documentation as it was untimely

February 25, 2004

2003-INA-26

TRIPURA INC.
Decision and Order

Rejection of U.S. workers; nominal period of on-the-job training: Dunkin Donuts outlet rejected applicant who had four years experience in making doughnuts, arguing that the franchise now has an expanded offering. Panel held that "Successful preparation of ancillary products such as bagels and muffins can be achieved after a brief training period by following simple instructions in a company manual. An otherwise qualified U.S. applicant cannot be rejected if he could perform the job duties with a nominal period of on-the-job training. 20 C.F.R. § 656.24(b)(2)(ii)...."

February 25, 2004

2003-INA-27

EVA RUS-BIASON
Decision and Order

Bona fide job opportunity: child tutor: "Employer provided a schedule of the tutor's workweek which appears to include an excessive and unrealistic schedule of preparation for very little contact or interaction with the child she is purportedly employed to tutor. The tutor spends six hours preparing for two hours of interaction with the child." Certification denied.

February 25, 2004

2003-INA-29

BEACON REEL COMPANY
Decision and Order

Rejection of U.S. workers: applicant overqualified inadequate reason for rejection

February 25, 2004

2003-INA-37

GEM LANDSCAPING
Decision and Order

Full-time employment: landscaper; business expansion: absence of a pre-existing position is not a per se bar to labor certification; however, must document definite plans for business expansion and that the expansion will generate full-time, permanent work; bare assertion of a "growing business" insufficient proof of the need for a full-time, year-round Landscape Gardener

February 26, 2004

2002-INA-298

BRUCE'S GOURMET CATERING INC.
Decision and Order

Business necessity: class one driver's license requirement for cook position; alien did not have such a license when hired, and still did not have one (alien only has a class c "normal" license); certification denied

March 1, 2004

2002-INA-183 and 184

CHUCK'S BOAT CLUB
Decision and Order

Full-time employment: seasonal employment: landscaper: case governed by Vito Volpe and Crawford & Sons: stretching payments over course of the year did not remedy seasonal nature of the work

March 1, 2004

2002-INA-220

PROPERTY MASTERS INC.
Decision and Order

Full-time employment: seasonal employment: landscaper: case governed by Vito Volpe and Crawford & Sons: Employer argued that different duties would be performed during the winter months. The alternative duties, however, were not duties normally performed by a Landscape Gardener and were not listed in the job description (snow removal, mail retrieval and other house-sitting duties, such as checking alarms, lights and timers)

March 1, 2004

2002-INA-279

M ELENA HOGAN
Decision and Order

Request for BALCA review: failure to state grounds

Bona fide job opportunity: domestic cook: where rebuttal was limited to generalized assertions regarding the Employer's schedule and the duties of the Alien, denial of certification affirmed

March 1, 2004

2003-INA-2

PATRICIA GONZALEZ
Decision and Order

Bona fide job opportunity: domestic cook: CO's reasonable request for documentation of how the alien has been paid (e.g., a W-2): CO's suspicion raised by fact that Employer did not have a California employer tax identification at the time the application was filed

March 2, 2004

2002-INA-224

SCOTT & ROSE (SHOSHANA) NEWMAN
Decision and Order

Business necessity: Domestic Cook, Kosher Speciality: Employer's questioning of the CO's characterization of Kosher cooking as a requirement and statement that they were training the worker to cook in the Kosher tradition was not responsive to the NOF's options of submitting evidence to document that the Kosher cooking requirement arises from business necessity, or deleting the specialized ethnic/religious requirement. Panel found that because experience was required in the job offered and one the duties included Kosher cooking, Employer had in effect required Kosher cooking experience

March 2, 2004

2002-INA-267

ANGELINA MONGIOVE
Decision and Order

Alien's experience: inadequacy of documentation: experience with the employer is not qualifying

March 2, 2004

2002-INA-299

EL ATACOR RESTAURANT #7
Decision and Order

Full-time employment: ability to provide: Employer's rebuttal insufficient where it was limited to self-serving and undocumented assertions that it was able to provide full-time work to any qualified applicant and a submission of a business license and pay stubs: in addition, Employer failed to provide tax information reasonably requested by the CO: CO raised the issue because all of Employer's current employees are part-time workers

March 3, 2004

2002-INA-299

RIVERSIDE LANDSCAPING
Decision and Order

Full-time employment: seasonal employment: landscaper: Employer's failure to provide payroll records requested by the CO: certification denied

March 3, 2004

2002-INA-271

SUNRISE BOARD & CARE
Decision and Order

Good faith efforts to recruit: advertisement did not list alternative job requirement which was also tailored to the alien's background

Business necessity: experience requirement: alien did not have the required experience

Mar. 3, 2004

2003-INA-9

DELION DELICATESSEN & GROCERY
Decision and Order

Business necessity: 72 hour work week not justified by the fact that the Employer is open 24 hours

Mar. 3, 2004

2003-INA-13

MEINEKE DISCOUNT MUFFLERS
Order of Dismissal

Dismissal: neither Employer nor Alien responded to Board's order seeking the Alien's current address and statement of intent to proceed

Mar. 3, 2004

2003-INA-14

WAAKO RECORDS, INC.
Decision and Order

Bona fide job opportunity: NOF noted that Employer had recently been granted labor certification for the same Market Research Analyst position and requested specific documentation to establish the need for a second employee in that position: Employer's rebuttal established a growing business and the financial capacity to engage a second employer; however, it did not provide the documentation reasonably requested by the CO, which was pertinent to the market research activity within its business. Moreover, Employer did not suggest that this information was unavailable or not reasonably obtainable. Denial of certification affirmed.

Mar. 3, 2004

2003-INA-16

THE CORPORATION HOUSING GROUP, INC.
Decision and Order

Business necessity: foreign language requirement: Employer's cursory statement regarding an upward trend in the Japanese housing market and suggested that fluency in the Japanese language would facilitate an expansion of its business was insufficient to establish business necessity: strict scrutiny applied.

Mar. 3, 2004

2003-INA-42

JOHN COLLINS & CO.
Decision and Order

Rejection of U.S. workers: Employer provided no objective evidence to establish that several U.S. applicants were not qualified. Denial of labor certification affirmed.

Mar. 4, 2004

2002-INA-158

FLAVURENCE CORPORATION
Decision and Order

Rejection of U.S. workers: an employer cannot reject U.S. applicants for failure to pass a test that was not disclosed as a requirement for the job.

Mar. 9, 2004

2003-INA-15

METRO DIGITAL PRINTING
Decision and Order

Bona fide job opportunity: Foreign language requirement: in rebuttal, the Employer deleted all references to requiring knowledge of Farsi, but submitted a revised advertisement that still called the position "Typesetter, Persian," indicated that it wanted to hire the alien because of her skill in Farsi, and stressed the importance of Farsi in the job: panel found that, in essence, the rebuttal did not change the requirement of knowledge of Farsi: denial of labor certification affirmed.

March 12, 2004

2003-INA-302 et al

SUN MICROSYSTEMS, INC.
Decision and Order

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)

Mar. 15, 2004

2002-INA-305

CYTEK MFG., INC.
Decision and Order

Good faith efforts to recruit: Additionally, Employer's use of a single sentence to detail its recruitment effort does not support a finding that Employer recruited in good: the Recruitment Report's only reference to its effort to contact Applicant #1 states: "The applicant was called by phone and by mail on March 25, 2001 but no contact was able to be made." Denial of labor certification affirmed.

Mar. 15, 2004

2002-INA-307

CORNING SILK SCREEN PRINT, INC.
Decision and Order

Business necessity: combination of duties: rebuttal consisting solely of self-serving assertions that the duties were required based on business necessity, size of the company, and industry standard insufficient. Denial of labor certification denied.

Due process: confusing or misleading NOF: harmless error where the employer's rebuttal indicates that it understood the issue and presented its rebuttal evidence on the issue

Mar. 16, 2004

2003-INA-12

ROBIE KRISTIN
Decision and Order

Live-in worker: private room requirement: assertion by Employer that the living room/dining room is large enough to partition does not constitute adequate documentation that there is currently a private room available for a live-in household worker. Denial of labor certification affirmed.

Mar. 16, 2004

2003-INA-58

NATALIE PACKER FREEDMAN
Decision and Order

Bona fide job opportunity: domestic cook: rebuttal unclear and contradictory, and failed to establish need for a full-time cook in one of several homes

Rejection of U.S. worker: domestic cook: U.S. applicant had eight years of experience in commercial restaurant which established ability to perform core duties: Employer attempts to reject the applicant based on unfounded assertions insufficient ground for rejection.

Mar. 16, 2004

2003-INA-60

WILLIAM & MELISSA GILDIN
Decision and Order

Timeliness of rebuttal: Employer asserted that it mailed two rebuttals in a single envelope and produced a certified mail receipt to establish timely receipt of the submission by the CO: CO, however, compared the contents of the other file and did not find any documents relating to the instant application, and therefore concluded that the rebuttal for the instant case had not been submitted. Panel found that it was not possible to determine from the certified mail receipt the contents of the envelope; thus, the Employer in this case would need to provide something more than the certified mail receipt to corroborate its assertion of timely submission of its rebuttal. Panel found that Employer's submissions were not adequate and affirmed the denial of labor certification.

Mar. 17, 2004

2003-INA-87

AM HI-TECH LAB, INC.
Decision and Order

Prevailing wage: Employer refused to raise wage offer to the level found to apply by the CO: arguments as to why the wage presented by the CO should not apply were unavailing. Denial of certification affirmed.

Mar. 19, 2004

2002-INA-273

SPORTS PINS INTERNATIONAL
Decision and Order

Rejection of U.S. applicants: applicant summarily rejected without an interview based on her salary demands: Panel held: "An employer may not reject an applicant as unwilling to accept the salary offered, until after the position has been offered to the applicant at the salary listed. See, e.g., Impell Corp., 1988-INA-298 (May 31, 1989)(en banc) . . . ."

Mar. 19, 2004

2003-INA-103 and 104

WEAVER PROPERTIES LLC
Decision and Order

Actual minimum requirements: Alien's qualifications for the job: insufficient proof that alien had qualifying experience when hired

Mar. 19, 2004

2003-INA-114

HEINTZ CONSTRUCTION, INC.
Decision and Order

Good faith efforts to recruit: apparently qualified U.S. applicant should be interviewed rather than discouraged by request to fill out additional application

Mar. 19, 2004

2003-INA-121

MOSHAY INC.
Decision and Order

Rejection of U.S. workers: mis-characterization of applicant's resume. Denial of labor certification affirmed.

Mar. 29, 2004

2003-INA-6

FEATHERLAND FARMS, INC.
Decision and Order

Rejection of U.S. workers: An applicant cannot be rejected for lack of current knowledge of a particular field without adequate documentation. An employer’s mere suspicion that the applicant’s knowledge is faulty does not satisfy the employer’s burden to document lawful rejection.

Mar. 29, 2004

2003-INA-7

TJ ENTERPRISES, INC.
Decision and Order

Business necessity: foreign language requirement: although Employer established that a large percentage of its clients speak Korean, it did not establish that job duties listed on the ETA 750A required the use of Korean. Denial of labor certification affirmed.

Mar. 29, 2004

2003-INA-10

BRNO ELECTRICAL CONTRACTING CORP.
Decision and Order

Rejection of U.S. workers: Electrician Supervisor position: where the U.S. applicants had extensive backgrounds in electrical work, generally, and, as electrician supervisors, specifically, Employer should have at least interviewed these U.S. applicants to further investigate whether they were qualified to perform the duties of the job offered.

Mar. 29, 2004

2003-INA-43

SUNRISE DRYWALL
Decision and Order

Good faith efforts to recruit: Employer found to have discouraged U.S. applicant where letter to the applicant asked for proof of authorization to work prior to being interviewed

Mar. 29, 2004

2003-INA-256

SUN MICROSYSTEMS, INC.
Order of Dismissal

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)

Mar. 29, 2004

2004-INA-41

GREENFORD RESIDENTIAL CARE FACILITY
Order of Dismissal

Withdrawal of appeal

Mar. 31, 2004

2003-INA-88

ABS ELECTRIC, INC.
Decision and Order

Rejection of U.S. workers: Electrician Supervisor position: where U.S. applicant, although not having supervisory experience as an electrician, appeared to have a combination of education, training and experience sufficient to meet the alternate requirement of six years of experience as an electrician, the applicant should have been interviewed

Mar. 31, 2004

2003-INA-142

PROGRESSIVE GREENERY
Decision and Order

Actual minimum requirements: Alien's qualifications for the job: Employer failed to prove that the Alien had qualifying supervisory experience when hired