BALCA En Banc Decision Summaries

NOTICE : These BALCA en decision summaries were created solely to assist BALCA staff in researching BALCA caselaw. The summaries are not part of the opinions and in no way constitute the official opinion of BALCA, the Office of Administrative Law Judges or the Department of Labor on any subject. The summaries should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any subject referred to therein. They are intended simply as a research tool, and are not intended as final legal authority and should not be cited or relied upon as such.

Burden of proof

Evidence: Burden of proof: Pursuant to 8 U.S.C. §1182(a)(14) [recodified at §1182(a)(5)(A)] "it is the burden of the alien, or more accurately the employer on behalf of the alien, to establish to the Secretary's satisfaction that U.S. workers are not available to perform the job, and that the employer of the alien will not adversely affect the wages and working conditions of U.S. workers." INFORMATION INDUSTRIES, INC. , 1988-INA-82 (Feb. 9, 1989) (en banc)

Evidence: Burden of proof: where the employer contended that it was better able to evaluate the qualifications of a mechanic and that the CO could not justifiably find the applicant qualified to perform the job duties based solely on his resume, the Board found that the employer's contention, in effect, improperly shifted the burden of proof to the CO to show that the U.S. worker was qualified and placed the employer as the judge of its own case. FRITZ GARAGE , 1988-INA-98 (Aug. 17, 1988) (en banc)

Definition of documentation

Evidence: definition of documentation: "[W]here a provision of the regulations requires information to be furnished in a specified form, e.g. , documentation of experience ''in the form of statements from past or present employers,''' §656.21(a)(3)(J), the regulation controls. In the absence of such a specific provision, where a document has a direct bearing on the resolution of an issue and is obtainable by reasonable efforts, the document, if requested by the Certifying Officer, must be adduced. In all other cases, e.g. , where an employer is required to prove the existence of an employment practice or the performance of an act and its results, written assertions which are reasonably specific and indicate their sources or bases shall be considered documentation. This is not to say that a certifying officer must accept such assertions as credible or true; but he/she must consider them in making the relevant determination and give them the weight that they rationally deserve." GENCORP , 1987-INA-659 (Jan. 13, 1988) (en banc)

Evidence: an employer's statement that prior familiarity with operations is a normal requirement for managers of fast-food restaurants was found not to be specific and not to indicate sources or bases, such that it did not meet the documentation definition from Gencorp . TRI-P'S CORP., dba JACK-IN-THE-BOX , 1987-INA-686 (Feb. 17, 1989) (en banc)

EVIDENCE: cryptic notes do not rise to level of documentation: "The fact that someone representing Employer wrote "too far" on Lukas' resume, among other notes regarding actual or scheduled dates of 8/14 and 8/16 for attempted or actual contacts with Lukas does not rise to the level of argument and evidence presented to the CO simply because it was in the file�. Cryptic notes on a resume should not have to be deciphered by the CO in an attempt to discover Employer's theory for rejection." YARON DEVELOPMENT CO., INC. , 1989-INA-178 (Apr. 19, 1991) (en banc)

Evidence: undocumented statements: Employer argued that since the NOF did not require a specific type of documentation, an undocumented statement from the employer is sufficient evidence to satisfy the request. The Board rejected this contention, noting that "Gencorp does not suggest that where a CO does not request a specific type of document, an employer's undocumented assertion must be accepted and certification granted. To the contrary, the holdings of many BALCA panels state that a bare assertion without either supporting reasoning or evidence is generally insufficient to carry an employer's burden of proof. See, e.g., A.V. Restaurant, 1988-INA-330 (Nov. 22, 1988); Our Lady of Guadalupe School, 1988-INA-313 (June 2, 1989). We concur with these holdings." CARLOS UY III , 1997-INA-304 (Mar. 3, 1999) (en banc)


Evidence: Hearsay: must have probative value and bear indicia of reliability: questionnaires returned by US applicants. CATHAY CARPET MILLS, INC. , 1987-INA-161 (Dec. 7, 1988) (en banc)

Weighing of evidence: party status is not, in itself valid basis for evaluation of evidence

Evidence: CO's attribution of more weight to statement of US applicant solely because he was not a party to the proceeding, and therefore presumably had no reason to state anything but the truth, was clear error. Party status is not, in itself, a valid basis for evaluating evidence. CATHAY CARPET MILLS, INC. , 1987-INA-161 (Dec. 7, 1988) (en banc)

Evidence: credibility: CO's generalization that "when an employer's response differs from an applicant's response, the weight of evidence is generally afforded the applicant" was erroneous: " The probative value of evidence is judged on the basis of its own strengths and weaknesses in each case, as we have done here, without general preconceptions based on its source. Screen Actors Guild, Inc. , [19]87-INA-626 (Mar. 9, 1988)." DOVE HOMES, INC. , 1987-INA-680 (May 25, 1988) (en banc)

Evidence: where a CO intends to find that evidence submitted by an employer is not genuine, a finding is to be expressly made and adequately supported by probative evidence. YEDICO INTERNATIONAL, INC. , 1987-INA-740 (Sept. 30, 1988) (en banc)

Translation: ease of seeking

Evidence: rather than denying claim outright because single page letter supporting rebuttal was written in Spanish, CO should have issued supplemental NOF seeking a translation if CO could not obtain one easily (case arose in Texas): Board disfavors technical denials. J. MICHAEL & PATRICIA SOLAR , 1988-INA-56 (Apr. 6, 1989) (en banc)

Technical Assistance Guide (TAG)

Technical Assistance Guide: although not binding on BALCA, policies may be adopted by BALCA when the reasoning is sound. ROGER AND DENNY PHELPS , 1988-INA-214 (May 31, 1989) (en banc)

Statements of counsel as evidence

Evidence: "The factual theory presented by counsel in a brief cannot serve as evidence of material facts." YARON DEVELOPMENT CO., INC. , 1989-INA-178 (Apr. 19, 1991) (en banc)

Evidence: statements of counsel as evidence: statements of counsel in a brief or otherwise presented, unsupported by underlying party or non-party witness documented assertions do not constitute evidence, and are not entitled to evidentiary value, except that an attorney may be competent to testify about matters of which he or she has first-hand knowledge: an attorney, however, may be required to withdraw as counsel if he or she becomes a witness in the case. MODULAR CONTAINER SYSTEMS, INC. , 1989-INA-228 (July 16, 1991) (en banc)

Authority of CO to go outside record supplied by the employer

Evidence: CO's introduction of outside communications: the Board held that it was proper for the CO to go outside the record provided by an employer in order to verify the information provided by an employer in a labor certification application. Such evidence must be disclosed in an NOF. CHAMS, INC, d/b/a DUNKIN' DONUTS , 1997-INA-40, 232 and 541 (Feb. 15, 2000) (en banc)

Statements made under penalty of perjury

Evidence: the mere fact that an employer makes statements under penalty of perjury does not compel the CO or the Board to accept the statements as credible. CARLOS UY III , 1997-INA-304 (Mar. 3, 1999) (en banc)

Scope of CO's authority to request information

Evidence: scope of CO's authority to request information: the Board affirmed the denial of labor certification where the employer relied on two pre-BALCA decisions in refusing to supply requested information on the full-time nature of the job: the Board observed that such questions were not reasonable where they were in reality, a requirement that the employer establish the "business necessity" for the position, but that a CO may reasonably ask for the same type of information in an analysis of a bona fide job opportunity, under the totality of the circumstances test, pursuant to 20 C.F.R. § 656.20(c)(8), or make inquires about the employer's ability to offer permanent, full-time work, or the sufficiency of funds to pay the alien's salary. [Note: this is a companion case to Carlos Uy III, 1997-INA-304 (Mar. 3, 1999) (en banc)]. ELAIN BUNZEL , 1997-INA-481 (Mar. 3, 1999) (en banc)