Rieter Corporation, 2000-INA-193 (BALCA, Sept. 29, 2000)
Edward Emes, 2000-INA-96 (BALCA, Sept. 28, 2000)
Lendy Muller , 2000-INA-125 (BALCA, Sept. 26, 2000)
Juan Rodriguez , 2000-INA-128 (BALCA, Sept. 21, 2000)
Aquatec Water Systems , 2000-INA-150 (BALCA, Sept. 21, 2000)
Dr. Michael and Mrs. Lynne Greene , 2000-INA-28 (BALCA, Sept. 21, 2000)
Edelwiess, Incorporated d/b/a Vintage Valet , 2000-INA-231 (BALCA, Sept. 21, 2000)
Rieter Corporation, 2000-INA-193, (BALCA, Sept. 29, 2000)
In Rieter Corporation, 2000-INA-193, the Board questioned the interrelationships of four companies, where aliens had gained experience abroad and wished to be qualified for jobs in the United States.
Under the rule in Inmos, Corp, 88-INA-136, the Board has previously held that an alien may not gain experience at an affiliate abroad and use that experience to gain labor certification.
Noting that “it is important to consider the increasing globalization of the marketplace,” the Board used a more flexible standard and acknowledged that Employer should have the opportunity to show “distinct, operational independence” to overcome the alleged deficiency in violation of §656.21(b)(5). (Remanded, Region IV).
Edward Emes, 2000-INA-96 (BALCA, Sept. 28, 2000)
In Edward Emes, 2000-INA-96, the Certifying Officer (CO) sent 12 interrogatories, requiring Employer to prove a history of employment of a social secretary, schedule of business and social entertainment, list of personal affairs, list of household accounts, work schedules, duties the alien would perform, percentage of disposable income devoted to the alien’s salary, copy of federal tax return, other household help employed, and the alien’s experience as a social secretary.
Many of the questions were inapplicable, since Employer was debilitated and did not raise familiar arguments such as entertaining or extensive travel. A letter was provided, along with a tax return, documenting that about 5.5 percent of disposable income would be used to pay the alien’s salary.
However, as Employer did not answer all the interrogatories, relating to entertaining and travel, his response was inadequate to overcome the notice of findings (NOF). (Denied, Region III).
Lendy Muller, 2000-INA-125 (BALCA, Sept. 26, 2000)
In Lendy Muller, 2000-INA-125, the CO asked for proof of the alien’s experience, including statements from past or present employers, to include details of employment, dates of employment, hours of work per day, number of days worked per week, detailed statement of duties performed, equipment and appliances used, and the amount of wages.
When the former employers refused to grant the documentation, the CO denied. On review, the Board held that since it was “understandable that previous employers might be reluctant to document that an alien was illegally employed,” the CO should have considered other evidence. (Remanded, Region II).
Juan Rodriguez, 2000-INA-128 (BALCA, Sept. 21, 2000)
In Juan Rodriguez, 2000-INA-128, Employer sought to qualify the alien for the job of Bricklayer on the basis of experience gained as a Bricklayer Helper. According to Employer, the duties, supervisory responsibilities, and salary distinguish the two positions.
The CO issued an NOF with the narrow statement that the alien could not “obtain the skill level obviously required to perform the duties of a bricklayer,” but raised the issue for the first time in the final determination.
Discreetly absent from the Board’s discussion was any mention of the interplay between the Kellogg doctrine (you can’t have related job requirements where the alien’s experience was gained in a different position with lesser responsibilities) with the Delitizer doctrine (you can have related job requirements, provided that the alien’s experience was gained in a different position with lesser responsibilities). (Remanded, Region IV).
Aquatec Water Systems, 2000-INA-150 (BALCA, Sept. 21, 2000)
In Aquatec Water Systems, 2000-INA-150, the SESA instructed Employer to contact each referral within 14 calendar days. Employer called the worker near the end of the period, but then waited a full month before attempting a second contact, and waited another month before sending a letter.
Because of this delay, the Board noted a lack of good faith and noted that a certified letter advising the job applicant of a scheduled interview was mailed with only one week’s notice, a lead time which was “not realistically sufficient time for the applicant to receive the notice that a letter was available, sign for such, receive the letter, and respond by the deadline.” (Denied, Region IX).
Dr. Michael and Mrs. Lynne Greene, 2000-INA-28 (BALCA, Sept. 21, 2000)
In Dr. Michael and Mrs. Lynne Greene, 2000-INA-28, the position of Household Manager was seen as a case for a General House Worker because of the lack of any significant supervisory duties.
The Board concluded that Employer had stressed that the alien’s main contribution was cooking, cleaning, laundry and child care, and that the occasional supervision of contract workers, or of an assistant who may be hired in the future, did not alter the fact that the job clearly contemplated a house worker rather than a Housekeeper or Household Manager. (Denied, Region III).
Edelwiess, Incorporated d/b/a Vintage Valet, 2000-INA-231 (BALCA, Sept. 21, 2000)
In Edelwiess, Incorporated d/b/a Vintage Valet, 2000-INA-231, Employer tried to contact U.S. workers by certified letter and then by phone. Two applicants signed return receipts for certified letters, documenting that they knew of the position and interview, but failed to respond.
The Board held that “the inference that they were unavailable or uninterested is reasonable,” and that further contact was not strictly required. Employer then sought to demonstrate further diligence and tried to contact the applicants by phone. Unfortunately, there was no way to prove that Employer had called, especially since they were local calls and did not appear on the telephone bill, and the CO did not believe that Employer had made the calls.
On appeal, the Board stated, “the CO would appear to require actual contact with each applicant to show good faith, but such is an excessive requirement. Circumstances and demonstration of reasonable efforts, especially where, as here, those efforts meet with some success, are sufficient.” (Approved, Region II).