Ming Gardens, Inc., 2000-INA-226 (BALCA, August 29, 2000)
Esterella Primicias, M.D., 2000-INA-229 (BALCA, August 29, 2000)
Discipulos Internaciones , 1999-INA-308 (BALCA, August 10, 2000)
Alberto Delgado, 2000-INA-227 (BALCA, September 6, 2000)
Jozef Modzelewski et al., 2000-INA-216 (BALCA, September 7, 2000)
Systems Plus Technology, Inc., 1999-INA-311 (BALCA, August 10, 2000)
Ming Gardens, Inc., 2000-INA-226 (BALCA, August 29, 2000)
In Ming Gardens, Inc., 2000-INA-226, the Board found that a Chinese language requirement would have a discouraging effect on job applicants for the position of Administrative Assistant in a Chinese restaurant located in Fargo.
Employer indicated the need for someone who speaks Chinese and understands Chinese cooking. Although the requirements were deleted, the Board found that Employer's preference for Chinese was unacceptable, hence, the finding that Employer chilled the interest of U.S. job seekers. (Denied, Region VIII).
Esterella Primicias, M.D., 2000-INA-229 (BALCA, August 29, 2000)
In Esterella Primicias, M.D., 2000-INA-229, Employer requested certification for a domestic cook. However, when the certifying officer (CO) questioned the existence of a bona fide job offer, the Board applied the 'totality of circumstances' test and found that the cook would cost too much-about 25 percent of Employer's disposable income.
Furthermore, the Board stated that Employer's nurse did not need to dine at Employer's table, as she could just as easily take her meals at the hospital, which has "many available eating places such as cafeterias." (Denied, Region II).
Discipulos Internaciones, 1999-INA-308 (BALCA, August 10, 2000)
In Discipulos Internaciones,1999-INA-308, Employer advertised the position of "Caseworker" under the heading "S" for the position of Substance Abuse Caseworker, according to instructions received from the SESA.
Later, the CO objected and stated that the SESA was mistaken because the job should have been advertised under the letter "C" for Caseworker. In its rebuttal, the hapless employer opined that it had merely followed the SESA's orders, and that it "should be compensated for the cost" of a new ad and for the attorney's time as well.
While the Board refused to pay the bill, it gave Employer another chance to recompense. (Remanded, Region IX).
Alberto Delgado, 2000-INA-227 (BALCA, September 6, 2000)
In Alberto Delgado, 2000-INA-227, the Board upheld a denial based on Employer's routine failure to meet the OES prevailing wage determination for the position of Production Superintendent for a leather goods manufacturing business.
In a separate dissent, however, Judge Pamela Lakes Wood noted that while Employer's wage offer was too low, the SESA's wage was also too high-a fact that should have justified a remand for additional fact-finding. (Denied, Region II).
Jozef Modzelewski et al., 2000-INA-216 (BALCA, September 7, 2000)
In Jozef Modzelewski et al., 2000-INA-216, more than 10 Polish cooks, all represented by the same attorney, had their case remanded because the CO had confused each Employer with its NOF interpretive of GAL 1-97.
The CO had relied on the instructions in GAL 1-97, which did not permit Employer to readvertise, even when the cases were caught in transition after the Lauretta v. Herman litigation in the Ninth Circuit, decided on March 5, 1999.
In Lauretta, the Court held that the interlocutory appeal process, mandated by GAL-197 to determine issues of business necessity prior to recruitment, was inappropriate.
Following the Ninth Circuit's ruling, the DOL subsequently amended GAL 1-97 and eliminated the requirement that the SESA make independent determinations of business necessity requirements and the subsequent transmittal of such cases to the CO for the issuance of an NOF.
In the instant case, the Board ruled that the CO had not properly explained to Employer that following the amendment to Lauretta, it could readvertise the job opportunity. (Vacated, Region II).
Systems Plus Technology, Inc., 1999-INA-311 (BALCA, August 10, 2000)
In Systems Plus Technology, Inc., 1999-INA-311, the position of Network Analyst was submitted as entry-level, with no experience requirement, and Employer asked that Level I be used to consider the prevailing wage. However, when the Maryland SESA found the job duties appropriate to Level II, Employer tried to amend the description to read, "working under the direct supervision of administrative and programming stag." The CO objected that since the alien had been performing the job duties for several years, it could not be considered entry-level. Employer rebutted that the job duties had not changed, and that the alien's continuation in employment did not change the entry-level nature of the job. Relying on University of North Carolina, 1990-INA-422 (BALCA), the Board found that the alien could be paid more than the entry-level wage, provided the job were offered as a wage range, where the lowest wage level would be equal to the actual prevailing wage for an entry-level position, and higher wages would be provided in increments for additional experience. This would allow the alien to earn more than the entry-level wage without requiring a higher wage offer to the public. The Board held that the wage offer must match the value of the minimum requirements "that were demanded of the Alien when initially hired, and of U.S. applicants, alike, assuming that the wage offer also meets or exceeds the prevailing wage." (Remanded, Region III).