Another notable decision from the Board of Alien Labor Certification Appeals (BALCA). You cannot use experience gained with the employer sponsoring your labor certification to qualify for the position being offered, unless the experience was gained in a sufficiently different position.
Matter of Century Wilshire Hotel, 2007-INA-00022 (10/15/07). [pdf decision]
…the Employer attempted in rebuttal to establish that the Alien gained qualifying experience for its Hotel Manager position while working as a Clerk. Although we might be willing to accept that some hotels may promote clerks to manager, the position taken by the Employer fails to establish that the requirements stated on the application were its actual minimum requirements for the job.
Good Faith Recruitment
Matter of El Jalisco Mexican Restaurant, 2007-INA-00010 (12/10/07). [pdf decision]
We concur with the CO that the evidence of one minute or less for telephone contact with the applicants is inadequate to establish good faith efforts to recruit. If the Employer actually spoke to the applicants, it is not credible to believe that one minute was enough time to introduce the reason for the call, determine that the applicants did not have the requisite experience, and receive a statement from the applicants that they were not interested in the position. If the Employer’s attorney misunderstood the facts of the case in the appellate brief, and the Employer never actually talked to the applicants, then the absence of any attempt to follow up the phone calls with a letter exhibits a lack of good faith effort by the Employer to contact and consider these potentially qualified U.S. applicants.
Matter of PR Consultants, 2007-INA-00066 (1/16/08). [pdf decision]
Based upon Employer’s failure to provide the documentation reasonably requested by the CO in her effort to determine whether permanent full-time employment, as required by 20 C.F.R. §§656.3 and 656.20(c)(8), was being offered in this matter, we find that the CO properly found that the Employer failed to establish that it was offering a bona fide job opportunity.
Matter of Beck AG Operations, 2008-PER-00005 (12/18/07). [pdf decision]
The Employer clearly violated 20 C.F.R. § 656.17(e)(2)(i) by failing to place a job order of 30 days duration. The Employer’s lack of awareness that a job order was required is an insufficient justification to overcome the deficiency in the application. Thus, we affirm the CO’s denial of labor certification.
Matter of Houston Music Institute, 2007-INA-00271 (1/16/08) (pdf decision)
The Employer’s later statements about its reasons for rejecting the applicants are ambiguous, and even contradictory. … it is clear that the applicants were rejected for lacking qualifications not listed in the ETA Form 750A. The Employer’s list of its required teaching methods and standards bear a remarkable consistency with the Alien’s qualifications.
BALCA has published a number of decisions on labor certification applications over the past few weeks. I’m going to post many of those decisions in a new section called “Balca Decisions“. Most of the people who visit the Visa Bulletin already have certified labor certification applications, but some of you do not and these decisions might be useful.