| Proof of Delivery to Job Applicant Is Not Sine Qua
Non of Documentation of Good Faith M & L Jewelry, Mfg., Inc., 2001-INA-137
(BALCA, Oct. 24, 2001)
In M & L Jewelry, Mfg., Inc., the application
was denied, inter AILA, because there was no evidence of the applicant receiving the
letter or of an attempt to call him on the phone. The employer had interviewed several
U.S. workers, and had stated that he attempted to call the applicant in addition to
sending the certified letter.
On appeal, the Board considered whether the form of contact was sufficient. “Although
it does not have a returned letter or a return receipt to document the disposition of the
letter, such proof is not the sine qua non of documentation of good faith in
recruitment.”
Noting that the Employer had a certified mail receipt proving that the letter was
mailed, the Board found good faith had been shown. (Labor Certification Granted, Region
IX.)
Board Opposes CO’s Finding, Accountant Permitted to
Audit
Take One Computer,
2001-INA-66 (BALCA, Sept. 19, 2001)
In Take One Computer, the Employer justified a
combination of job duties, in part, by submitting a letter from a CPA with more than 23
years of accounting experience. The expert supported the Employer’s position that
many small firms require the services of an accountant to engage in internal auditing. The
certifying officer (CO) rejected the opinion, because he “is known to us to work for
immigration attorneys.”
On appeal, the Board noted in a similar case that it had held that an expert’s
opinion could not be categorically dismissed because he works with immigration attorneys.
Proper weight might include the expert’s qualifications, background, reasoning and
relationship to the parties.
On the issue of internal auditing, the Board also found that the Dictionary of
Occupational Titles (DOT) is merely a guideline and that an accountant can perform
some auditing functions to check the accuracy of documents and reports. (Labor
Certification Granted, Region IX.)
Employer's Tailoring Tech Requirements to Suit Alien Held Improper
Armand Bouzaglou, M.D., F.A.C.R., 99-INA-152 (BALCA, Aug. 30, 2001)
In Armand Bouzaglou, M.D., F.A.C.R., the minimum
requirement for the position of technologist was two years’ experience in the job
offered, including use of equipment such as LINAC Varian 6/100 Linear Accelerator, or as
“Technologist Assistant, Oncology, Radiation, Therapy.” The alien did not have
experience with the accelerator, but only qualified because of the alternate requirements.
The Board noted that under Kellogg, the Employer’s alternative requirements
would be considered unlawfully tailored to the alien’s qualifications, unless the
Employer has indicated that any suitable combination of education, training, or experience
are acceptable. Accordingly, the Board found the alternative requirement restrictive.
(Denied, Region IX.) |
