Metropolitan Imports, Inc., 99-INA-264 (BALCA, March 8, 2000)
In Metropolitan Imports, Inc., 99-INA-264, the CO disagreed with the Employer regarding the calculation of wages. The determination was $21.14, and the Employer had calculated $21.12. Arguing that a two-cent deviation was de minimis, the Employer’s rebuttal requested certification under the harmless error exception. On appeal the Board pointed out that “the deviation…is found to be an unrepentant, conscious violation of the Act and regulations...” and upheld the CO, (Denied, Region III).
La Joya Independent School District, 99-INA-291 (BALCA, February 22, 2000)
In La Joya Independent School District, 99-INA-291, the Boardconsidered the Employer’s need for multiple teachers, where the ad and posting only mentioned one position available. The school representative stated that it “always had several positions available to be filled,” and that the notion that only one position existed was a “misperception.” The school also requested permission to re-advertise the position with the indication that it has two elementary teaching positions available. After the denial, the Board agreed with the CO and stated that "It is clearly the object of the Act and regulations to deal with only one alien and one position at a time.…” (Denied, Region X).
Murad Enterprises, Inc., 99-INA-282 (BALCA, March 17, 2000)
In Murad Enterprises, Inc., 99-INA-282, the Employer required ability to use specific software programs to perform the position of software engineer, however, when the CO asked the Employer to quantify the requirement, it failed to do so. BALCA held that “while not impermissibly vague” such requirements must be strictly construed. When the Employer failed to provide additional documentation to support the requirement, the CO issued a Final Determination denying the case. The Board upheld the CO. (Denied, Region IV).
Dr. Lakshmi Kapadia, 99-INA-213 (BALCA, March 14, 2000)
In Dr. Lakshmi Kapadia, 99-INA-213, the Employer offered the position of Household Cook, Live-In, Indian Cuisine,, to make Indian food for family and guests, and in Georgina D. Black, 2000-INA-29 (BALCA, February 24, 2000), the Employer required a Child’s Tutor for academic subjects, especially Spanish. Since the DOL had a policy in effect, at the time of review by the CO, to challenge the full-time work schedule of domestic cooks, tutors, and other household workers, the cases ended up in a tug-of-war centered on the hours of work in the setting of full-time employment. The CO did not accept the Employer’s proposal of work for the aliens and stated that the jobs did not constitute full-time employment, however, the FD’s were not based on substantial evidence. Since the determinations left the CO on thin ice, with nothing in the record other than speculation to support the findings, the Board fashioned a new test, based on a totality of circumstances. The Board held, “Focusing solely on whether the employment will keep the worker substantially engaged throughout the day casts the problem in the wrong light – the true issue being whether the employer’s position was bona fide. The Board also noted that the totality of circumstances test is not one of general applicability. Instead, it applies for the very limited set of circumstances in which a private employer desires certification for a household worker. “It is in no way our intention that the totality test supplant the specific tests and requirements under Part 656 with a generalized grounds for denial of any labor certification application, consuming everything in its path…..” (Remanded, Region IV).
Biscom, Inc.,, 99-INA-290 (BALCA, March 6, 2000)
In Biscom, Inc., 99-INA-290, the Employer needed a Ph.D. to perform the job duties of Software Engineer for a Message Machine Manufacturer and offered $65,000 per year. The CO issued an NOF stating “It appears that the requirement of a Ph.D. is tailored to meet the alien’s qualifications and background.” After rebuttal evidence, consisting of a letter from the Employer, the Board found that the written assertions were insufficient, and did not provide factual support or a compelling explanation for the requirement. (Denied, Region I).
John Han d/b/a Southern Chick Sexing Service, 99-INA-241 (BALCA, March 8, 2000)
In John Han d/b/a Southern Chick Sexing Service, 99-INA-241, the Employer’s attorney sent rebuttal information regarding an NOF to “U.S. Department of Justice, Washington, D.C. 20213” instead of “ETA, U.S. Department of Labor, Washington, D.C. 20213.” It never reached the DOL and was never traced to a destination within the DOL. The National Certifying Officer, thinking that no rebuttal had been issued, made a Final Determination, and sent it to the Employer with the actual street address (200 Constitution Avenue, N.W.) However, the ultimate issue in the case was a restrictive job requirement of two year’s experience for chick sexers, considered to be a material dispute requiring the attention of the National Certifying Officer. The Employer argued that because of the Date of Last Update, revised in 1977, the DOT entry did not reflect current workplace practice. On review, the Board noted that the matter had “languished in the administrative process too long for [the] Panel to tolerate such a narrow resolution at this time.” Noting that the National Certifying Officer did not supply a street address for response to the NOF, and that the Zip codes used by the National CO were inconsistent, the Board held that the Employer was consequently “exposed to an unacceptable level of vulnerability to the clerical error that eventually occurred” and declared the case to be one of manifest injustice. (Remanded, National CO, Washington, D.C.).
Pacific Delight Tours, Inc., 2000-INA-12 (BALCA, March 21, 2000)
In Pacific Delight Tours, Inc., 2000-INA-12, the entire rebuttal evidence consisted of a letter written by the attorney and co-signed by the Employer, who had read and concurred and joined in the submission. However, as the Employer’s signature was illegible, the Board found that without adequate identification of the individual, it could not determine whether the rebuttal is “supported by underlying statements by a person with knowledge of the facts.” (Remanded, Region II).
Business Travel Tours, Inc., a/k/a BTT, Inc., 99-INA-220 (BALCA, March 22, 2000)
In Business Travel Tours, Inc., a/k/a BTT, Inc., 99-INA-220, the Board found that the alien was not qualified for the position of "Legal Consultant” or “Paralegal” under Kellogg. The principal requirements were two years in the job offered and a JD in law or an alternate experience requirement of Paralegal Certificate. As the Paralegal Certificate was less than a JD, the Employer’s requirements were found restrictive under Kellogg. (Denied, Region II).