Neven Skalko Reproductions, 2000-INA-38 (BALCA, May 2, 2000)
In Neven Skalko Reproductions, 2000-INA-38, the Employer had been employing an independent contractor but, because of a growth in business, required a full-time employee. The CO denied the application, finding that the Employer had no bona fide employment opportunity. The Employer argued that the reason for the switch from independent contractors to a permanent helper was an increase in business and a logical analysis of the cost-effectiveness of the Employer’s resources. The CO had requested state employment forms proving the pre-existing employer/employee relationship, but, since it did not already have an employee, the Employer could not produce the requested forms. The Board stated, “The Employer was quite clear from the beginning of this process that the Alien would be its first employee; it is unrealistic for the CO to expect that he would have the requested documentation.” Note: In some jurisdictions the SESA’s require proof that the Employer is registered and functioning as an employer and in compliance with state law. When the Employer proposes to hire an employee, but has not yet done so, proof of prior compliance is impossible unless the alien is certified and authorized to begin work. (Approved, Region IX).
Sunmart 374, 2000-INA-93 (BALCA, May 15, 2000) and Chamdal Food Mart, 2000-INA-92 (BALCA, May 15, 2000)
In two cases, Sunmart 374, 2000-INA-93, and Chamdal Food Mart, 2000-INA-92, the Board ventured to speculate about human relationships in the context of labor certification processing. In both cases the CO had questioned an NOF whether there was “any relationship” between the Employer and alien. The rebuttal included a statement that the parties are “not related.” Not satisfied with this response, the CO denied both cases as not sufficiently responsive to the questioned relationship. On appeal, the Board stated, “A relationship is not only of the blood; it may also be financial, by marriage or through friendship,” and cited the CO’s right to require information that is relevant, can be obtained by reasonable efforts, and has a direct bearing on the resolution of an issue. Note: As the CO’s use of the word “relationship” in the NOF lacked specificity and amounted to nothing more than conjecture, the decision has the effect of requiring the Employer to be its own accuser, defining the issue and establishing its relevancy, and then to be its own defender, rebutting the findings with documentary evidence. (Denied, Region VI).
Kerr-Vance Academy I, 2000-INA-88 (BALCA, May 15, 2000)
In Kerr-Vance Academy I, 2000-INA-88, the CO questioned why a French teacher must also be able to coordinate physical education classes and found a lack of bona fide job opportunity. The NOF, set forth in the form of an opinion, concluded that the job requirements were tailored to the alien. The record showed that the previous French teacher had taught music, instead of martial arts. On rebuttal, the Employer provided a narrative history stating stated that the alien had requested assistance “in securing his employment certification.” Also submitted was a cover letter stressing the importance of the matter for the school and the alien’s family. In conclusion, the Board ruled that since the Employer had not offered martial arts as a class until the Alien’s arrival, the requirement was clearly tailored to the alien’s skills. (Denied, Region IV).