BALCA En Banc Decision Summaries
EMPLOYMENT

NOTICE : These BALCA en decision summaries were created solely to assist BALCA staff in researching BALCA caselaw. The summaries are not part of the opinions and in no way constitute the official opinion of BALCA, the Office of Administrative Law Judges or the Department of Labor on any subject. The summaries should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any subject referred to therein. They are intended simply as a research tool, and are not intended as final legal authority and should not be cited or relied upon as such.

Sufficiency of documentation

Employment: permanent full-time job: the CO, suspicious of whether employer was operational, requested documentation, and after several NOFs concluded that certification could not be granted because a single unsigned contract for the alien's services did not establish that employer could offer permanent, full-time employment: the Board agreed, where, inter alia, the contract was not signed by the Employer and the contract's terms did not supply key information such as the value of the contract, the amount of work to be done, the location of the contracted work or the duration of the project. GERATA SYSTEMS AMERICA, INC. , 1988-INA-344 (Dec. 16, 1988) (en banc)

Individual as employer

Employer: viable business: While an employer, under section 656.50, may be an individual, that individual must still meet the other definitional requirements of an employer, namely that he or she "proposes to employ a full-time worker." There is no requirement that the employer be an "established business." That an Employer does not have a tax number on file with the state is not dispositive; however, a CO is free to inquire a business, under any trade name, has an employer tax number, and if not, to explain. BEN THOMAS DESIGN , 1988-INA-411 (Mar. 31, 1989) (en banc)

Subcontractor relationship, transfer of ownership

Employer-employee relationship: subcontractor: majority of the Board reinstates and affirms panel decision in American Chick Sexing Association, 1989-INA-320 et al. Mar. 12, 1991), which permitted the employer to be transferred in rebuttal to remove the contractor relationship objected to by the CO (although the same individual owed both companies): dissenters found that the job had changed so significantly that the employer should be required to file new labor certification applications. AMERICAN CHICK SEXING ASSOCIATION , 1989-INA-320 et al. (May 12, 1992) (en banc)

Full-time - sufficient duties to keep worker occupied during the day

Employment: Full-time job: whether full-time nature of job duties can be raised under section 656.3 alone: the Board held that the definition of employment in section 656.3 cannot be used to attack the employer's need for the position by questioning the hours in which a worker will actually be engaged in work-related duties, i.e., the business necessity for the position. Where the employer is offering a work week with hours customary for a full-time employee in the industry, section 656.3 is not the proper ground for denying labor certification. The Board observed, however, that the lack of sufficient duties to keep a worker gainfully employed for a substantial part of a work week may be relevant to the issue of whether the employer is offering a bona fide job opportunity. Moreover, if the true nature of the CO's concern is that the job has been mischaracterized or that the job was created for the purpose of assisting the alien's immigration, the citation of error should be to section 656.20(c)(8), to provide adequate notice of what is really being contested. The Board indicated that Schimoler does not prevent a CO from rejecting under section 656.3 an application that does not offer a full-time work week, or a permanent position. Nor does it prevent a denial of certification under section 656.3 where the employer cannot demonstrate the ability to provide permanent, full-time work. [Note: this is a companion case to Carlos Uy III, 1997-INA-304 (Mar. 3, 1999) (en banc)] DAISY SCHIMOLER , 1997-INA-218 (Mar. 3, 1999) (en banc)

Full-time v. seasonal and temporary work - sufficient work to keep work occupied for full calendar year

Employment: Permanent full-time work v. seasonal and temporary work: landscapers: "[W]e hold that although these landscaping jobs may be considered "full time" during ten months of the year, and the need for these jobs occurs year after year, they cannot be considered permanent employment, as they are temporary jobs that are exclusively performed during the warmer growing seasons of the year, and from their nature, may not be continuous or carried on throughout the year.": [Editor's note: the Board declined to revisit Vito Volpe in Crawford & Sons, 2001-INA-121 (Jan, 9, 2004) (en banc), citing the principle of stare decisis]. VITO VOLPE LANDSCAPING , 1991-INA-300, et al (Sept. 29, 1993) (en banc)

Employment: permanent full-time work v. seasonal and temporary work: Board declines to overrule or modify Vito Volpe Landscaping, 1991-INA-300, at 5 (Sept. 29, 1993) (en banc). CRAWFORD & SONS , 2001-INA-121 (Jan, 9, 2004) (en banc)