BALCA upholds denial of LC because proffered position not full-time as required by regulations

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Ethnic Singer/Entertainer.” This LC was filed prior to the effective date of the “PERM” regulations.

In the aforementioned case, the employer, a restaurant/nightclub filed a LC on behalf of an alien worker in April of 2001. In June 2006, the CO issued a Notice of Findings (NOF) proposing to deny certification on the basis that the job was not full-time. Accordingly, the position could not be considered permanent because it did not involve full-time work during the entire year. The CO provided the employer with specific instructions in the NOF to rebut the findings. Specifically, the CO requested evidence that the position as performed in the employer’s establishment constitutes full-time employment as required by the regulations, evidence such as a daily/weekly/ work schedule, and proof that the job was previously filled by an incumbent on a full-time basis before the alien was hired, etc and proof of recruitment efforts. In its rebuttal, the Employer provided the performance schedule of the alien, contending that the position was a full-time position, and provided the CO with the recruitment report. The Employer also suggested that since the Department of Labor (DOL) had previously approved a similar petition, accordingly, this petition should be approved. Subsequently, the CO issued a Final Determination denying certification. The CO stated that the NOF had clearly identified two violations: the employer’s failure to demonstrate that the petition was full-time employment as required by the regulations, and that the Employer had not engaged in adequate recruitment efforts. The CO determined that the Employer had rebutted the second violation by providing the recruitment report; however, the Employer did not successfully rebut the first violation. The CO further explained that an employer’s failure to produce documentation that is requested by the CO and that has a direct bearing on the resolution of an issue, is a ground for denial of certification. Thereafter, the Employer requested BALCA review.

Upon BALCA review, it was determined that the employer has the burden of demonstrating that it meets the definition of employer and that the position that is offered is both permanent and full-time as required under the regulations. The Board’s caselaw provides that if an employer offers, for example, only a 25 hour a week work week, then section 656.3 may be properly cited by the CO as a ground for denying labor certification. In the instant case, the Employer only offered 20 hours of work per week. Additionally, the Employer failed to provide all of the documentation that was reasonably requested by the CO in the NOF.

The CO correctly determined that the Employer failed to establish that the position constitutes full-time employment. Accordingly, labor certification was properly denied.

*In support of its request for review of the Final Determination, the Employer submitted an amended proposed performance scheduled to reflect additional hours. The Board, however, does not have the authority to consider evidence that is first submitted with the employer’s request for BALCA review or with the brief on appeal.