The answer to the headline's question in a recent immigration case is: "Right here, boss." I will get to the specifics in a minute.
This is another instance of an obscure appeals agency, in keeping with the administration's policy tilt, reversing a sensible staff decision on an immigration matter.
An earlier blog reported that the tiny Office of the Chief Administrative Hearing Officer or OCAHO, (a Justice Department entity) had seriously reduced the immigration law fines laid on a misbehaving strip club on the outskirts of Buffalo, on the grounds it was financially stressed. (It was stressed because of three other brushes with the law -- non-immigration law.)
This time the story is about another, largely unknown administrative appeals agency, this one within the U.S. Labor Department. It is the Board of Alien Labor Certification Appeals (BALCA). Its role in life is to review negative decisions made by DOL staff on applications for immigration benefits; in this case, for a green card for a worker to be hired by Mike's Warehouse, a tailor shop.
The case has been around since 2008, when Nader Saghafi, the would-be employer, filed an application for a "Permanent Employment Certification" for Kourosh Saghafi to fill the position of "shop and alteration tailor".
The employer noted that he was the sole proprietor of the shop, and that the alien in question was his brother. The certifying officer (CO) ruled against the application, on the grounds, according to the BALCA decision, that:
[T]he documentation Employer provided in its audit response did not overcome the presumption of the foreign worker's influence and control for several reasons. Employer's company has only one employee. The foreign worker is the brother of the employer, who has ... the hiring authority for the company. Moreover, the CO stated, Employer failed to provide the requested financial history."
Jobs to be filed this way are to be "bona fide and open and available to U.S. workers", so the reader might well agree with the CO's decision. One is not supposed to use this provision of the immigration law to get green cards for one's relatives — there are plenty of other ways to do that.
But in this case BALCA over-ruled the negative decision and sent the whole case back to the CO on a remand because it disagreed with the way that the CO had handled the financial history of the firm, with the review panel saying that the employer had filed sufficient information on that subject. The decision also carries the remarkable comment:
Aside from being the sole proprietor's brother, there is no indication that the foreign worker has any influence over the hiring process.
Really!
Kourosh Saghafi, meanwhile, is not lingering in some foreign land waiting for this decision, as I discovered by checking with the electronic White Pages. While the location of the business is not shown in the decision, the location of its lawyer is printed. He's in Fairfax County, in northern Virginia.
The White Pages shows phone numbers and northern Virginia street addresses for Mike's Warehouse, and separately for both Nader and Kourosh Saghafi; one wonders about the latter's immigration status, but that subject is not mentioned in the BALCA decision.
This is not an atypical BALCA ruling; as Interpreter Releases, the immigration bar's trade paper, reports regularly, that appeals body frequently overturns staff denials on such matters. This specific case was reported in the September 9 issue of IR.
While I am in constant sorrow of the content of this decision, the sunny side is that BALCA, unlike the roughly comparable agency in USCIS, the Administrative Appeals Office, does not engage in excessive secrecy in its documents. The full names of the employer, the alien, the employer's lawyer, and the last names of the three judges are all printed by BALCA, as they should be. For a note on AAO's strange privacy hang-ups see this blog
For the full text of the August 28 BALCA decision see here.