Selected BALCA Decisions

• Board remands for More Detail, Citing Lucky Horse’s Prong One
• Morning Cook or Short Order Cook, BIA Rules Skills Needed in Gourmet Prep
• Board Admonishes CO for Finding Unqualified U.S. Worker Qualified

Sunrise Floor Systems, 2000-INA-58 (BALCA, Feb. 27, 2001)

In Sunrise Floor Systems, 2000-INA-58, the Board reviewed a Spanish language requirement in which four crewmembers submitted letters stating that they do not communicate in English. The letters were simple, “Yo trabajo para Sunrise Floor Systems. No hablo ni entiendo Ingles.”

Taking notice of the simplistic Spanish used in the letters, the Board found that even without a translation, it was evident that the workers were saying that they work for Employer and do not speak or understand English.

Although the certifying officer (CO) had found that the documentation was insufficient to establish that the workers do not speak English, the Board noted that Employer had provided documentation, such as the nature of the work population in Southern California where many of the workers are from Mexico and Guatemala and commute daily from Tijuana.

The Board also noted, “To illustrate the point that San Diego is essentially a bilingual city, [the employer] alleged that Pacific Bell had recently started giving telephone subscribers the option to receive bills in either English or Spanish, and that one million households had opted for the bills to be printed in Spanish.”

The Board also noted that if Employer’s workforce is made up of illegal aliens, it could not succeed under Prong One of Lucky Horse, which requires proof that the use of a foreign language bears a reasonable relationship to the occupation.

The Board then held that Employer needs to document that free market forces are at work in its community, and not just on generalized or undocumented assertions about the nature of the workforce in Southern California. (Remanded, Region IX).

Morning Cook or Short Order Cook,
BIA Rules Skills Needed in Gourmet Prep

Lord’s Deli & Pizza, 2000-INA-246 (BALCA, Feb. 12, 2001)

In Lord’s Deli & Pizza, 2000-INA-246, the Board reviewed the requirement of a morning cook with two years’ experience (thus qualifying as a skilled worker) based on the argument that the duties required the preparation of gourmet-style breakfasts.

Arguing that the job should be a cook, and not a short order cook, Employer documented that the dishes require adequate preparation time because of their special, culinary aspects, such as flavored pancakes and Spanish omelets.

The Board accepted Employer’s argument, although Judge Vittone dissented, arguing that Employer’s statements were not adequate documentation or proof to establish the existence of gourmet cuisine as a fact. (Granted, Region II).

Board Admonishes CO for Finding
Unqualified U.S. Worker Qualified

Fubang International Trade Co., 2000-INA-262 (BALCA, Feb. 12, 2001)

In Fubang International Trade Co., 2000-INA-262, the Board ruled that the CO was mistaken to find a U.S. worker qualified through a combination of education, experience, and training, even after the applicant clearly did not meet the stated requirements for the job opportunity.

At issue was the position of financial analyst, with requirements of a Master’s Degree in Mathematics, Business Administration, Business Management, Finance, or Accounting. The broadly drafted requirements seemed to forestall a Kellogg problem, as they were not tailored to the alien.

The CO seized on the wide latitude suggested by the requirements and insisted that a U.S. worker with some experience (about one year as a financial analyst) would be qualified, even though rudimentary; however, the Board held that the CO had not explained how such a rudimentary training would qualify the U.S. worker for the position. (Granted, Region IX).