Recent BALCA Decisions
The Labor Department’s Board of Alien Labor Certification Appeals (BALCA) issued a number of decisions over the past few weeks. These decisions provide some insight into important labor certification issues.
We organized the BALCA decisions by topic and listed them below. Click on any topic in the list below to jump to that section.
- Lack of Experience
- Rejection of Qualified Applicants
- Permanent, Full-time Employment
- SWA Job Order
- Minor Omissions
- FEIN
- Actual Minimum Requirements
- Good-faith Recruitment
- Insufficient Wage
Each decision includes a blurb and a link to the full decision in pdf format.
Lack of Experience
Matter of Professional Staffing Services of America, 2007-INA-00058 (1/23/08).
Even if this new argument and evidence was in the record properly before us, it does not establish that the Alien had any experience as a Financial Analyst prior to being hired by the Employer. The fact that the Alien performed some finance related duties in prior employment, and that this experience was considered adequate when the Alien was hired only reinforces the conclusion that one year of experience as a Financial Analyst was not the Employer’s actual minimum requirement for the job.
Rejection of Qualified Applicants
Matter of Houston Music Institute, 2007-INA-00271 (1/16/08).
The Employer’s later statements about its reasons for rejecting the applicants are ambiguous, and even contradictory. … it is clear that the applicants were rejected for lacking qualifications not listed in the ETA Form 750A. The Employer’s list of its required teaching methods and standards bear a remarkable consistency with the Alien’s qualifications.
Permanent, Full-time Employment
Matter of Rankin Landscaping, 2007-INA-00057 (1/16/08).
…the record clearly establishes that the Alien had been working less than twelve months of the year in full-time employment. Therefore, we must find that the position at issue constitutes seasonal and temporary employment under 20 C.F.R. Part 655. Because the Employer failed to provide compelling justification that the position involves permanent, full-time employment and that these activities could be performed on a year-round basis, the position cannot be certified as a permanent position.
Matter of Twin Industries, 2007-INA-00270 (1/16/08).
…the Employer took a minimalist approach to its rebuttal documentation. In so doing, it failed to provide the CO adequate proof that the landscape gardener position was indeed one that would keep the incumbent engaged in full-time employment for the entire year. Labor certification was properly denied.
Matter of South Valley Drywall, 2007-INA-00272 (1/16/08).
Since the Employer did not submit this documentation we draw the inference that such documentation would not support a finding that the Employer was actually offering permanent, full-time employment for drywall finishers.
Matter of PR Consultants, 2007-INA-00066 (1/16/08).
Based upon Employer’s failure to provide the documentation reasonably requested by the CO in her effort to determine whether permanent full-time employment, as required by 20 C.F.R. §§656.3 and 656.20(c)(8), was being offered in this matter, we find that the CO properly found that the Employer failed to establish that it was offering a bona fide job opportunity.
Matter of Factor’s Row, 2007-INA-00034 (1/16/08).
Based upon the Employer’s failure to provide the documentation reasonably requested by the CO in her effort to determine whether permanent full-time employment, as required by 20 C.F.R. §§656.3 and 656.20(c)(8), was being offered in this matter, we find that certification was properly denied.
SWA Job Order
Matter of Beck AG Operations, 2008-PER-00005 (12/18/07).
The Employer clearly violated 20 C.F.R. § 656.17(e)(2)(i) by failing to place a job order of 30 days duration. The Employer’s lack of awareness that a job order was required is an insufficient justification to overcome the deficiency in the application. Thus, we affirm the CO’s denial of labor certification.
Matter of Dr. Afshin Abdollahi DMD, 2008-PER-00009 (12/17/07).
The start and end dates of the job order must be entered on the ETA Form 9089 to document the timing of the SWA job order. Thus, the CO properly denied certification based on the Employer’s failure to enter the dates of a SWA job order on its application.
Matter of Best Manufacturing, 2007-PER-00080 (12/19/07).
Despite the Employer’s attorney’s argument that his records showed that all selections on the application were properly made, the application contained in the Appeal File supports the CO’s finding that the Employer in the instant case marked “Yes” for H-6, but did not make a subsequent entry for H-6A. (See AF 11, 21). Failing to specify the months of experience caused the application to be incomplete, and subject to denial pursuant to 20 C.F.R. § 656.17(a)(1). Thus, we affirm the CO’s denial of labor certification.
Matter of Syncsort, 2007-PER-00067 (12/18/07).
The Employer clearly violated 20 C.F.R. § 656.17(e)(1)(i) by submitting the application too early. The fact that once the 30 day period expired, it appeared that no harm was occasioned by the Employer violation is insufficient to excuse the violation. Thus, we affirm the CO’s denial of labor certification.
Matter of Oyassan, 2007-PER-00069 (12/18/07).
…the Employer believed that it could file the application 30 days after the SWA job order started. However, the applicable time is 30 days after the SWA job order ended. The Employer’s application showed an end date for the SWA job order that was actually several weeks after the date the application was filed.3 The Employer clearly violated 20 C.F.R. § 656.17(e)(1)(i) by submitting the application too early. Thus, we affirm the CO’s denial of labor certification.
Matter of Constructions Pros Corp., 2007-PER-00077 (12/18/07).
The Employer’s application showed an end date for the SWA job order that was only seven days prior to the date it filed the Form 9089….The Employer clearly violated 20 C.F.R. § 656.17(e)(1)(i) by submitting the application too early. This was not a mere clerical error. Thus, we affirm the CO’s denial of labor certification.
Matter of Texas Storm of Houston, 2007-PER-00089 (12/18/07).
The fact that the job order ran for 31 days was irrelevant to the issue raised by the CO. The deficiency with the application was that the Employer only waited 25 days before filing its application. The Employer clearly violated 20 C.F.R. § 656.17(e)(1)(i) by submitting the application too early, and we affirm the CO’s denial of labor certification.
Matter of Lam Garden Chinese Restaurant, 2008-PER-00014 (12/17/07).
…it was an error by the SWA in neglecting to take into account the short length of February that caused the job order to be a day short. Although it is possible that the one day shortfall in the SWA job order may have resulted in a U.S. applicant or applicants being overlooked, the possibility that the deficiency materially affected the recruitment is not great. … Under these precise circumstances, we find that the CO abused his discretion in refusing to grant certification upon reconsideration. We limit the ruling in this case to the precise circumstances presented.
Matter of Golden Bridge Restaurant, 2007-PER-00099 (12/18/07).
The Employer clearly violated 20 C.F.R. § 656.17(e)(1)(i) by submitting the application too early. The fact that once the 30 day period expired, it appeared that no harm was occasioned by the Employer violation is insufficient to excuse the violation. Thus, we affirm the CO’s denial of labor certification.
Minor Omissions
Matter of Subhashini Software Solutions, 2007-PER-00043-46 (12/18/07).
…the CO’s refusal to process applications not bearing a DOL logo is not grounded in any explicit regulatory or interpretative requirement of which we are aware. … the denial of reconsideration would be an injustice and would not satisfy the requirements of due process. The consequences to the Employer were out of proportion to the mistake. To deny labor certification for such an error would be to elevate form over substance, to lose perspective of the relative weight of the offense compared to the consequences to the petitioning Employer, and to offend the concept of fundamental fairness.
Matter of Subhashini Software Solutions, 2007-PER-00039-53 (12/10/07).
…the failure to answer Section H-10A, as in all five of the above-captioned matters, also constitutes grounds for denial of certification. …These were not just “slight omissions.” Moreover, although the Employer argues that the omissions could have been corrected by a simple request for evidence by the CO, as we held in Alpine Store Inc., “the burden is clearly on employers to ensure that they are submitting complete applications to the CO. … We find that the Employer’s applications were incomplete on a material issue, and thus properly denied under 20 C.F.R § 656.17(a).
FEIN
Matter of Discolo, 2007-PER-00108 (12/17/07).
…pursuant to 20 C.F.R. §656.3, “an employer must possess a valid Federal Employer Identification Number (FEIN).” … Thus, the CO correctly denied certification in this matter. The Employer‟s remedy is to obtain a FEIN and reapply.
Matter of Alpert, 2007-PER-00109 (12/17/07).
…although a household may not be a business in the commercial sense, it nonetheless must obtain an EIN in order to legally employ a domestic worker. … we find that in the context of a household supplying a FEIN in Section C-7 of Form 9089, the policy of verifying whether an employer is a “bona fide business entity” is served by ensuring that the Employer has applied for and received an EIN in order to legally employ a domestic worker.
Matter Bugajski-Lang, 2007-PER-00079 (12/17/07).
…we find that the CO did not abuse his discretion in declining to permit the Employer to remedy the deficiency in her application by obtaining a FEIN after being notified of the deficiency. The CO correctly denied certification, and the Employer’s remedy is to re-file the application now that she has obtained a FEIN.
Actual Minimum Requirements
Matter of Century Wilshire Hotel, 2007-INA-00022 (10/15/07).
…the Employer attempted in rebuttal to establish that the Alien gained qualifying experience for its Hotel Manager position while working as a Clerk. Although we might be willing to accept that some hotels may promote clerks to manager, the position taken by the Employer fails to establish that the requirements stated on the application were its actual minimum requirements for the job.
Good-faith Recruitment
Matter of El Jalisco Mexican Restaurant, 2007-INA-00010 (12/10/07).
We concur with the CO that the evidence of one minute or less for telephone contact with the applicants is inadequate to establish good faith efforts to recruit. If the Employer actually spoke to the applicants, it is not credible to believe that one minute was enough time to introduce the reason for the call, determine that the applicants did not have the requisite experience, and receive a statement from the applicants that they were not interested in the position. If the Employer’s attorney misunderstood the facts of the case in the appellate brief, and the Employer never actually talked to the applicants, then the absence of any attempt to follow up the phone calls with a letter exhibits a lack of good faith effort by the Employer to contact and consider these potentially qualified U.S. applicants.
Matter of Bistany’s Oriental Rug Dealers, 2007-INA-00009 (12/10/07).
…the Employer’s delay and interviewing process demonstrated less than a good faith effort to follow-up with this qualified U.S. applicant. … The Employer has failed to prove that there are not sufficient U.S. workers who are “able, willing, qualified and available” to perform the work.
Insufficient Wage
Matter of Plaza Express Car & Limo Service, 2007-INA-00008 (12/10/07).
…even if we found that the CO improperly reclassified the position as an “Office, Manager,” we nonetheless agree with the CO that the job is a Level 2 rather than Level 1 position, and therefore should have, at the minimum, used the Level 2 wage determination for a “First-Line Supervisor/Manager” job offer ($43,992). The Employer’s $24,000 wage offer was well below that amount. Accordingly, we find that labor certification was properly denied.