News Update - November 1, 2008Recent Board of Alien Labor Certification Appeals (BALCA) Decisions1. BALCA recently upheld a U.S. Department of Labor Certifying Officer’s (CO) rejection of a labor certification based on the determination that the employer did not recruit in good faith by only making phone calls to applicants and not sending letters. Although the regulation that governs labor certifications does not explicitly state a “good faith” requirement in regards to recruitment, such a requirement is implicit. Therefore, an employer must do more to contact applicants than leave messages on answering machines. BALCA also found that readvertising the position was not an adequate remedy for a lack of good faith recruitment. BALCA also upheld the CO’s rejection because it found that the employer did not prove that U.S. applicants were rejected solely for lawful job-related reasons or that the job was open to any qualified U.S. worker. The CO found that the employer rejected its U.S. applicants for lacking experience not specified as a job requirement in the ETA Form 9089 and it failed to establish that the immigrant applicant had such experience prior to being hired. 2. In another determination, BALCA upheld the CO’s rejection of labor certification for an ethnic singer/entertainer due to the employer’s failure to establish that the position was full-time. The definition of “employment” for the purposes of labor certification is “permanent full-time work by an employee for an employer other than oneself.” 20 C.F.R. §656.3. Therefore, an employer has the burden of demonstrating through documentation that the position is both permanent and full-time. Reasonable documentation that can be requested by a CO includes (but is not limited to): position description, payroll records, resumes of former employees and copies of job advertisement of similar positions not associated with labor certification applications place in the last three years. In this case the employer argued that the position, although only 20 hours, was full-time because the duties of the job of an entertainer are performed in the context of scheduled performances. The employer provided documentation which included the required hours and copies of its newspaper listings for this position. BALCA found that the CO had properly rejected the labor certification because the fact that the job is as an entertainer does not provide a compelling reason to find that the position is a full time job and the employer failed to provide adequate documentation.
† The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004. ‡ This article © 2008 Alan Lee, Esq.
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Copyright © 2003-2012 Alan Lee,
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