Here's a Federal Regulatory Agency That Often Rules Against the Alien

By David North on February 8, 2010

The generally-accepted concept in the restrictionist community is that federal agencies and courts nearly always rule in favor of the alien. I think that's true.

But I found an exception: a series of recent decisions by the Department of Labor's (obscure) Board of Alien Labor Certification Appeals (BALCA).

Truth to tell it was in the middle of the weekend blizzard and I was unconsciously looking for something useful to do other than shoveling snow.

I worked at the Labor Department (as an Assistant to the Secretary) decades ago, and after I left I wrote the first evaluation of the permanent labor certification program, which provides green cards to workers that employers say they need. I knew, casually, of the existence of BALCA, which sprung up many years after I left Labor; I had never paid much attention to it.

So, with that background, and the desire to avoid the snow, I noticed "BALCA Decisions," a typical, exciting headline in the always-reliable, always-dull trade paper of the immigration bar, Interpreter Releases (January 11, 2010).

I picked up a pencil and decided to read each of the 13 BALCA decision summaries to see how many had been won by the employer who wanted to hire the alien, and how many had been won by the other side. (Interpreter Releases, so named because it used to be written for settlement house social workers/interpreters working with immigrants decades ago, never does anything as crass as providing a box score in its coverage.)

The first case was Matter of Davis Brothers Construction Co. The Brothers wanted to use the labor certification process to hire a carpenter, and said that they required six months of training in construction, a high school diploma, and six months of job experience. But in the part of the application in which they described the qualifications of the (unnamed) alien, all they noted was this work experience.

The DOL certifying officer noticed the discrepancy and denied the application on the grounds that the "requirements listed on Form ETA 9089 did not represent the employer's actual minimum job requirements." In other words, the employer wanted to hire the alien though he had lesser qualifications than the company was asking of U.S. workers.

BALCA said that the DOL staffer was right, and confirmed his decision. (Nobody mentioned that the construction industry is in the doldrums, and there are plenty of resident carpenters eager to find work.)

I kept going, and read in Matter of UMC Logistics, Inc., of a trucking company that apparently operates in the American southwest and has trucks that go to Chihuahua, Mexico, which was identified as "a community in which Spanish and German [!] are spoken." UMC wanted to hire a truck driver who with a "knowledge of a foreign language" presumably with an eye on a truck driver they knew who did. This is an old trick in the labor certification business – create a required skill set that your guy has, but is unlikely to be encountered in the U.S. labor market.

The DOL staffer asked the employer to document the need for the linguistic skills, and then ruled that the documentation was faulty and that the requirement was an unreasonable one. The BALCA agreed.

I continued to wade through the decisions – involving, among others, the proposed hirings of a supervisor for a McDonald's, a couple of masons, a cook, and a care giver in a private home – the article covered a total of 13 such decisions and, in this case, every one of them was against the employer who wanted to hire the alien. So, a box score of 0-13.

Interestingly, the Interpreter Release article, and presumably the BALCA decisions themselves, never raised the question of why, at this time of extensive blue collar unemployment, one would need to look for foreign workers. The decisions usually seemed to be based on the failure of the 13 employers to meet the Department's specific regulatory requirements, rather than anything else.

Maybe this grouping of 13 rulings, picked by a writer for a very pro-immigrant publication, is atypical of the board's work. Nevertheless, it was refreshing to see a government agency make a series of such decisions.