Joseph Garcia d/b/a Spires Restaurant, 99-INA-274 (BALCA, February 10, 2000)
In Joseph Garcia dba Spires Restaurant, 99-INA-274, Employer sent a certified letter to a U.S. worker. Employer retained the white receipt, proving that the letter was mailed, but did not receive the green return receipt with the signature of the U.S. worker. On appeal, the Board held that the worker did not receive the letter, and Employer had the obligation to try other means of contact. (Denied, Region IX).
Prince Yeboah, 2000-INA-5 (BALCA, January 19, 2000)
In Prince Yeboah, 2000-INA-5, Employer promptly contacted two job referrals, but due to a business trip abroad to purchase inventory, the interviews were held 13 and 23 days later. The Board held that Employer should not have traveled “during a period when he knew recruitment was going to be taking place,” but should have delayed the trip “a week or so and complete his recruitment …” (Denied, Region III).
T & T Donuts d/b/a Dunkin’ Donuts, et al., 97-INA-232 (BALCA, February 15, 2000)(en banc)
In T & T Donuts d/b/a Dunkin’ Donuts, et al., 97-INA-232, the Board found that the Certifying Officer’s failure to reveal ex parte communications, namely, a conversation between the CO and Dunkin’ Donuts corporate headquarters, was not enough to reverse the CO’s decision. The information generated established that only a short period of training time is necessary to qualify for the position of donut maker.
The CO informed Employer about this derogatory information only upon issuing the Final Determination. On review, the Board was unperturbed by this breach of due process and held that the failure to inform Employer at the NOF stage was “harmless error” because “there was enough evidence in the record to support the CO’s findings, even without the faulty evidence.” (Denied, Region III).
Luis Orellana, 99-INA-122 (BALCA, January 14, 2000)
In Luis Orellana, 99-INA-122, the job duties required cooking Mexican-style food for Employer and his extended family. When a U.S. worker with no prior experience in Mexican cooking applied for the position, he was rejected for lack of qualifications. On appeal, the Board held that Employer failed to document why “an applicant with two years of cooking experience could not readily adapt to a Mexican style of cooking,” using written recipes and verbal assistance. (Denied, Region IX).
Sun Ling International Corp. of America, 96-INA-282 (BALCA, February 4, 2000)
In Sun Ling International Corp. of America, 96-INA-282, the CO neglected to raisethe Kellogg issue in an NOF. Employer offered a position requiring three years’ experience as Manager, Computer Systems, but Employer also listed an alternative requirement of four years experience as Technical Chief, Electronic Maintenance. In its decision, the Board commented sua sponte that “the CO failed to recognize that the Alien does not possess the primary job requirement of 3 years experience in the job offered.” (Denied, Region II).
Caribbean Coffee Company, 96-INA-450 (BALCA, February 4, 2000)
In Caribbean Coffee Company, 96-INA-450, the CO failed to grant a second extension for an NOF. Quoting the Technical Assistance Guide, the Panel noted, “The CO may grant an extension of time.” A contradictory policy is found, however, in GAL 1-97, which states categorically that only one extension may be granted. In the instant case, the CO had granted the first extension but denied the second.
On review, the Board stated, “where an employer fails to cite extenuating circumstances that require the second extension, labor certification is properly denied.” Here, the Board omitted any reference to GAL 1-97 but only cited the Operating Instructions in the TAG and several BALCA decisions. (Denied, Region IX).
Jewelry Exchange, Inc./Diamonds International, 2000-INA-24 (BALCA, January 28, 2000)
In Jewelry Exchange, Inc./Diamonds International, 2000-INA-24, the Board admonished the CO for using a confusing succession of punctuation, connectors and, paragraphs. Noting that the NOF was replete with markers such as “A,” “B,” “And,” “Or,” capitalized and uncapitalized words and letters, hyphens, points, commas, periods and set-offs, the Board ruled that the presentation was confusing to the hapless Employer. (Remanded, Region II).