BALCA upholds denial of LC because Employer failed to establish position was 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 “Landscape Gardener.” This LC was filed prior to the effective date of the “PERM” regulations.

In the aforementioned case, the employer, a nursery filed a LC on behalf of an alien worker in April of 2001. In a letter submitted with the application, the Employer requested the application be handled under the special provisions for Reduction in Recruitment (RIR) processing. In May 2006, the CO issued a Notice of Findings (NOF) proposing to deny certification. The NOF provided that 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. Additionally, the NOF stated that the work of a landscape gardener is generally performed during certain seasons or periods of the year and not others. Lastly, the NOF stated that there was insufficient information to determine whether the Alien would perform the work on a full-time basis. The NOF requested that the Employer submit payroll records for the last three years to establish that the job duties are permanent full-time employment. On rebuttal, the Employer submitted payroll records for the last three years and argued that the payroll records establish a long-term commitment because despite the winter hiatus, everyone returns for re-employment in the spring. The Employer also plead that in continuously warm climates, landscaping is considered permanent, full-time year round work. The Employer argued that they should not wait for Congress to pass new legislation on this issue, and recommended a modification of the existing case law. In September 2007, the CO issued a final determination denying certification. The CO noted that the Employer’s pay roll records for the last three years did not show any pay for the first quarter of each year for the months of January, February and March. Therefore, the Employer’s rebuttal failed to establish employment on a year-round basis. Subsequently, the Employer requested BALCA review.

Upon BALCA review, existing case law holds that a landscape gardener position for which duties can only be performed during approximately nine to ten months per year cannot be considered permanent employment for the purposes of labor certification. Rather, the employment should be considered seasonal. The fact that employees return the following year bears no relevance on the final determination, as the re-employment of the same employees does not cure the defect. As such, the position is seasonal and labor certification was properly denied.

This case was before the CO in the posture of a request for RIR processing, and when a CO normally denies an RIR, such a denial should result in the referral of the application for regular processing. However, case law holds that a remand for supervised recruitment is not mandated if the reasons for the denial cannot be cured by a supervised recruitment. Accordingly, since the Employer has not established that the application was for permanent full-time employment, remand for supervised recruitment is not warranted. The CO properly denied labor certification .