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BALCA rules that an employer must state at the BEGINNING of the LABOR CERTIFICATION process if it has MULTIPLE OPENINGS.

On 10/17/06, the U.S. Department of Labor's Board of Alien Labor Certification Appeals (BALCA) issued a ruling in a case, Matter of Custom Landscape Construction, Case No. 2005-INA-181 (10/17/06), in which it addressed the circumstances under which an employer can claim that it actually had MULTIPLE OPENINGS.

In the Labor Certification process, an employer must show that there are no U.S. workers available to fill a particular position. Sometimes, an employer will hire a U.S. worker as part of the Labor Certification recruitment, and will then argue that there were actual multiple openings available with the employer so the fact that one U.S. worker was hired did not fill the employer's multiple openings. In the case of Matter of Custom Landscape Construction, Case No. 2005-INA-181 (10/17/06), the employer made that very argument.

The certifying officer denied the employer's labor certification appeal, and on appeal, BALCA addressed the circumstances under which an employer can claim multiple openings and successfully obtain a labor certification after hiring U.S. worker. BALCA ruled against the particular employer in the case, affirming the certifying officer, reasoning that the particular employer had NOT stated from the beginning of the labor certification case that it had multiple openings. BALCA ruled:

While the Employer contends that multiple job openings existed, the record is devoid of any evidence that, in fact, more than one opening existed. The ETA Form 750A and the advertisements set forth the position of "Landscaper/Gardener" and not "Landscapers/Gardeners" which would imply the existence of only one position. (AF 26-27 and 67-69). It was not until after the hiring of the U.S. worker and the proposed denial of certification by the CO that the Employer stated, in its Rebuttal, that multiple job openings existed.
The Employer argued that a job opening still existed and that the fact that there was a single labor certification pending with the Department of Labor did not prohibit the Employer from utilizing other methods of recruiting for other vacancies. (AF 16). It is the Employer’s responsibility, however, to state explicitly, at the initiation of the application procedure and throughout the certification process, that it seeks more than one worker for the position. Precision Airparts Support Services, Inc., 1988-INA-508 (Feb. 8, 1990).
Matter of Custom Landscape Construction, Case No. 2005-INA-181 (10/17/06). A copy of the opinion is attached in PDF format.
AttachmentSize
CUSTOMLANDSCAPEvCONRADO.pdf184.43 KB

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