H1B Visa Lawyer Blog
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 December 2001. In November 2006, 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 weekly payroll records for the Alien and two other employees. The Employer’s attorney argued that the employees perform their jobs year-round on a continuous basis working in the months of December, January, February, and March. The CO issued its Final Determination denying certification in June 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 payroll records for the last three years showed that the Alien and the other two employees regularly worked less than 35 hours in a given week during the winter months. The Employer stated that the future position will perform 40 hours per week during the winter months. Accordingly, the evidence submitted was not sufficient to establish that the position constituted permanent, full-time, year-round employment as defined by the regulations. Subsequently, the Employer requested BALCA review.
Upon BALCA review, the Board relied upon case law and held that a landscaper 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. The Board found that the employees averaged between 23 and 26 hours a week from December through February in the 03’/04′ season, 04’/05′ season and 05’/06′ season. Although the Employer argued that the offer for future employment will be 40 hours each week year-round, the evidence submitted did not support such a finding. The Employer did not provide any additional documentation to establish that the position was permanent and full-time. Accordingly, the Board agreed with the CO that the position was for seasonal employment and as a result, the labor certification was properly denied.