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.

Exceptional ability in the performing arts: relevant population for comparison

Exceptional ability in the performing arts: comparison is with others in the field not with general population: "[I]n order to prove that an alien has exceptional ability in a performing art, an employer must prove that the alien has uncommon, extraordinary ability as compared with the other artists in the same field." Background of singing engagements in churches, high schools and a single Hotel ballroom was insufficient to establish exceptional ability: evidence of single engagement in Carnegie Hall was insufficient where no information about the performance was presented. ALLIED CONCERT SERVICES, INC. , 1988-INA-14 (Nov. 3, 1988) (en banc)

Special handing cases: College or university teacher: alien only prospective candidate for degree

College or university teacher, special handling: requirement of showing of competitive recruitment and selection process and that alien was more qualified than US applicants: certification denied where alien was hired without a PhD and only later received that degree, but all US applicants either already had a PhD or would receive one prior to hire. UTAH STATE UNIVERSITY , 1988-INA-115 (Apr. 5, 1989) (en banc)

Special handing cases: College or university teacher: DOL regulations do not include elementary or secondary school teachers

Alien's qualifications: teachers: the special handling and "equally qualified" regulations at 20 C.F.R. 656.21a and 656.24 are limited in application to college or university teachers: despite apparent conflict between DOL's regulations and the plain language of the statute (see Mastroyanis v. U.S. Department of Labor, No. A 88-089 (D. AK 1989) (unpublished)), the Board held that it was not empowered to invalidate a DOL regulation: the Board also reviewed the regulatory history and found that the exclusion of teachers in elementary or secondary schools from the regulatory was not mere oversight. DEARBORN PUBLIC SCHOOLS , 1991-INA-222 (Dec. 7, 1993) (en banc)

Prior recruitment efforts: sufficiency of documentation

Prior recruitment efforts: sections 656.21(b) and 656.21(b)(1) explicitly require an employer to document its prior recruitment efforts: DOL is not required to accept employer's general statement merely because it comes from a "reputable employer": employer's statement that its corporate policy was to destroy records after a year and that the CO could obtain the required information from the recruiter improperly attempted to place the responsibility of on the CO to perform evidence-gathering tasks. CITBANK SOUTH DAKOTA , 1988-INA-211 (Mar. 24, 1989) (en banc)

Schedule B Waivers

Schedule B waiver: an employer's must establish at least one year of paid employment by the alien to remove the application for a live-in household domestic service worker from Schedule B: In LAWRENCE WEINSTEIN , 2005-INA-9 (Feb. 10, 2006) (en banc), the BALCA had sua sponte granted en banc review to consider whether an employer may satisfy the one-year-of-experience requirement under 20 C.F.R. § 656.21(a)(3)(iii) relating to a positon as a live-in domestic house worker with documentation of the alien's experience with the sponsoring employer, indicating that the Board would revisit its 1989 decision in Roger and Denny Phelps , 1988-INA-214 (May 31, 1989) (en banc). Following briefing, the Board declined to disturb the Phelps ruling, in which it was held that experience with the sponsoring employer could not be used for purposes of section 656.21(a)(3)(iii). The Board's ruling was based on stare decisis.

One Board member dissented, arguing that Phelps was wrongly decided and that the majority's decision to observe stare decisis did not stand up to scrutiny.

Schedule B waiver: an employer's must establish at least one year of paid employment by the alien to remove the application for a household domestic service worker from Schedule B: Board adopts rule found in TAG, to wit: " Documentation of experience working in one's own home, for a parent, close relative, or someone in a similar familial-type relationship cannot be regarded as a bona fide employer-employee relationship and is not acceptable." [Editor's note: this ruling was reaffirmed in Marvin and Ilene Gleicher, 1993-INA-3 (Oct. 29, 1993) (en banc)]. ROGER AND DENNY PHELPS , 1988-INA-214 (May 31, 1989) (en banc)

Schedule B waiver: an employer's must establish at least one year of equivalent, full-time, paid employment by the alien through an employer other than the petitioning employer to remove the application for a household domestic service worker from Schedule B: " It is not knowledge of the job, but assurance an alien really seeks permanent status to remain in such a job, which the one-year experience requirement, necessary to justify an exception to Schedule B, seeks to foster." MARVIN AND ILENE GLEICHER , 1993-INA-3 (Oct. 29, 1993) (en banc)

Professional responsibility: maintaining willful ignorance about details of application

Professional responsibility: lay representative suspended for six months where he was found to have been recklessly negligent in maintaining a willful ignorance about of the details of the application: lay representative, relying on the representations of a third party intermediary, had submitted documents to the DOL and the Board purportedly on behalf of the employer when in reality the employer had been dead for several years: although no evidence that the representative had an intent to defraud the government, circumstances existed that should have alerted the representative to the likelihood that the application for labor certification was not being pursued in good faith. TADEUSZ KUCHARSKI, in re Judicial Inquiry regarding MIROSLAW KUSMIREK , 2000-INA-116 (Sept. 18, 2002) (29 CFR 18.36 proceeding)