DEPARTMENT OF LABOR
BOARD OF ALIEN LABOR CERTIFICATION APPEALS
HEADNOTE ON MARCH 3, 1999 DOMESTIC COOK DECISIONS
Notice: The headnote is not part of the Board's decision and should not be cited or relied upon as such.
On March 3, 1999, the Board of Alien Labor Certification Appeals issued, en banc, three related decisions involving domestic cooks.
Carlos Uy III,
1997-INA-304 (Mar. 3, 1999) (en banc)
Bona Fide Job Opportunity Analysis
In Carlos Uy III, 1997-INA-304 (Mar. 3, 1999) (en banc), the Board held that a Certifying Officer (CO) may properly invoke the bona fide job opportunity analysis authorized by 20 C.F.R. § 656.20(c)(8) if the CO suspects that the application misrepresents the position offered as skilled rather than unskilled labor in order to avoid the numerical limitation on visas for unskilled labor. When the CO invokes section 656.20(c)(8), however, administrative due process mandates that he or she specify precisely why the application does not appear to state a bona fide job opportunity. It is the employer's burden following issuance of a NOF to perfect a record that is sufficient to establish that a certification should be granted. The Board rejected Employer's contention that where a CO does not request a specific type of document, an undocumented assertion must be accepted and certification granted.
A CO's Final Determination finding that an employer did not establish the existence of a bona fide job opportunity must have some foundation; the CO has an obligation to explain why an employer's documentation is deficient. The Board observed, however, that if the NOF provided the employer with adequate notice of the violation and instructions for curing or rebutting the deficiencies, a less than fully reasoned Final Determination may not prevent the Board from affirming a denial of labor certification if the employer's documentation was so lacking in persuasiveness that labor certification necessarily would be precluded.
Although determining that a remand would be required because of the inadequacy of the NOF and the Final Determination, the Board reviewed the evidence to illustrate what it anticipated in the analysis of a bona fide job opportunity case. The Board decided that the first step is to examine the totality of the circumstances, and listed a number of possibly relevant circumstances, such as the employer's economic situation, whether the employee will be engaged in cooking duties for a substantial portion of the day (but cautioning against focusing solely on this factor), whether the employee will be required to perform functions not related to cooking, and a number of other factors. The second step is to consider what those circumstances say about the credibility of the job opportunity. The Board held that a CO should consider such factors as whether an employer has the motive to misdescribe the position, indicators for believing or doubting the employer's veracity or the accuracy of his or her assertions, and whether independent documentation supports the employer's assertions.
The Board then discussed the evidence in light of these principles. Although finding that Employer presented a facially sufficient description of a bona fide job opportunity for a domestic cook, it found a great number of factors suggesting that this description may not be credible. The Board listed factors such as the motive to describe a skilled position in order to avoid limits on visas for unskilled labor; Employer's reliance on guesswork to describe a full- time job for a domestic cook; the statistical reality that less than 3% of all domestic service jobs are for cooks; the self-serving nature of Employer's statements and their sometimes inherent implausibility (such as the apparently high proportion of Employer's income that would be devoted to paying the salary of a cook); the absence of verification for Employer's assertions; and the permissibility of drawing an adverse inference from an employer's lack of willingness to produce supporting documentation. The Board also listed other remarkable aspects of the application such as the selective provision of information about the alien's background; questions about whether a familial or other special relationship exists between the alien and the employer; unusual work hours; and unusual amendments to the application during early processing of the application. Finally, the Board held that the mere fact that an employer makes statements under penalty of perjury does not compel the CO or the Board to accept the statements as credible.
Judge Huddleston concurred in the result only. He would hold that if an employer offers full-time employment, that employer's need for a full-time employee is not a relevant inquiry, and specifically is not relevant to whether a job is clearly open to qualified U.S. workers as required by section 656.20(c)(8). He concluded that the majority's decision will permit a CO to use the totality of the circumstances test and section 656.20(c)(8) as the sole grounds for denial of any labor certification application, and would hold that if a CO cites section 656.20(c)(8) when a more specific section is applicable, the denial will be considered vague and inadequate.
Judge Jarvis concurred in the result only. He concluded that the majority's decision relegates the question of full-time employment to one element in a totality of the circumstances test, and improperly forecloses its use as an independent consideration by the CO. He foresees untold mischief if, in the alien labor certification context, the Board approves the paying of full-time wages for less than full-time work.
Judge Lawson concurred, except for disagreement with a statement in Part IV of the majority opinion in which the Board gave an example of why it could not fully understand the basis for the Final Determination because of the way the sufficiency of funds issue was raised in the NOF but not addressed in the Final Determination. He would assume that NOF findings not specifically discussed in the Final Determination have been considered by the CO and satisfied by the employer. He expressed concern that this ruling expanded the scope of review and that this case was an inappropriate vehicle for doing so.
1997-INA-218 (Mar. 3, 1999) (en banc)
Whether full-time nature of job duties can be raised under section 656.3 alone
In Daisy Schimoler, 1997-INA-218 (Mar. 3, 1999) (en banc), the Board held that the definition of employment in section 656.3 cannot be used to attack the employer's need for the position by questioning the hours in which a worker will actually be engaged in work-related duties, i.e., the business necessity for the position. Where the employer is offering a work week with hours customary for a full-time employee in the industry, section 656.3 is not the proper ground for denying labor certification. The Board observed, however, that the lack of sufficient duties to keep a worker gainfully employed for a substantial part of a work week may be relevant to the issue of whether the employer is offering a bona fide job opportunity. Moreover, if the true nature of the CO's concern is that the job has been mischaracterized or that the job was created for the purpose of assisting the alien's immigration, the citation of error should be to section 656.20(c)(8), to provide adequate notice of what is really being contested.
The Board indicated that Schimoler does not prevent a CO from rejecting under section 656.3 an application that does not offer a full-time work week, or a permanent position. Nor does it prevent a denial of certification under section 656.3 where the employer cannot demonstrate the ability to provide permanent, full-time work.
The Board remanded the case for issuance of a supplemental NOF. It also directed the CO on remand to consider whether Employer's requirement of experience in the job offered (i.e., cooking Cuban cuisine) is an unduly restrictive job requirement. In regard to this direction to consider a tangential issue on remand, the Board held that despite some authority indicating that a CO forever waives an issue if not cited in the Final Determination, the Board is not precluded from remanding a case for review of issues not previously considered in the NOF or the Final Determination.
Judge Lawson concurred, except for disagreement with the remand for consideration of an issue not previously raised by the CO. He wrote that NOF findings not discussed in the Final Determination are satisfied by the employer, and opined that the scope of review should not be re-defined without input and full consideration of the issue.
Judge Jarvis dissented on the same grounds stated in his concurrence in Uy. He would have affirmed the CO's conclusion that Employer failed to establish that the job opportunity is for full-time employment.
1997-INA-481 (Mar. 3, 1999) (en banc)
CO's authority to request information relating to full-time nature of position
In Elain Bunzel, 1997-INA-481 (Mar. 3, 1999) (en banc), Employer relied on two pre-BALCA decisions in refusing to provide information requested by the CO regarding whether the job is full-time in nature. The Board noted that under its ruling in Schimoler, there is little relevance for purposes of section 656.3 definition of employment in whether the worker's duties require constant work for the entire work day, provided that the work day is customary for a full-time employee in the industry or under an employer's special circumstances. Accordingly, if a CO's questions about the full-time nature of the duties are, in reality, a requirement that the employer establish the "business necessity" for the position, the inquiry is not reasonable. Nevertheless, a CO may reasonably ask for the same type of information in an analysis of a bona fide job opportunity, under the totality of the circumstances test, pursuant to 20 C.F.R. § 656.20(c)(8). See Uy. Moreover, the Board stated that Schimoler does not change the CO's authority to inquire about the employer's ability to offer permanent, full-time work, or the sufficiency of funds to pay the alien's salary. Since the CO had cited section 656.20(c)(8) and had questioned Employer's ability to offer permanent, full-time work, the Board affirmed the CO's denial of labor certification.
Judge Jarvis concurred for same reasons stated in his concurrence in Uy and dissent in Schimoler.