BALCA upholds denial of Landscaper application – not permanent, full-time employment

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 “landscaper”. This LC was filed prior to the effective date of the “PERM” regulations.

The employer filed a LC on behalf of an alien worker in April of 2002. In March 2007, the CO issued a Notice of Findings (NOF) proposing to deny certification. The regulations at 20 C.F.R. § 656.3 define employment as permanent, full-time work by an employee for an employer other than oneself. Generally, the work of a landscaper is only performed during certain seasons of the year. The CO needed more information to determine whether the position required full-time, year round work. The CO asked the employer to provide payroll records for December to Mach for the last three years to establish that the position of landscaper was performed on a year-round basis. The Employer submitted its Quarterly Federal Tax Returns for 2005 and 2006 as evidence of permanent, full-time employment. The CO issued its Final Determination denying certification in August 2007. Simply stated, the CO found that the employer failed to provide evidence to establish that the position was performed on a year-round basis. The Employer’s Quarterly Tax Returns did not show the number of hours each individual worked each week. Subsequently, the Employer requested BALCA review.

Upon BALCA review, the Board relied upon case law and held that a landscape gardener position for which duties can only be performed during several months per year cannot be considered permanent employment for the purposes of labor certification. The Board considered this arrangement seasonal employment. Therefore, the employer has the burden to prove that the position is permanent and full-time. The employer failed to produce evidence that would show that the position was in fact permanent, full-time employment. The Employer’s failure to submit the documentation reasonably requested by the CO warranted a denial of labor certification. The Board held that while the employer’s quarterly reports established that the business is open year-round; they did not establish that the position was for permanent, full-time year-round employment. Accordingly, the employer failed to meet its burden and as a result, the labor certification was properly denied.