Once in a While an Immigration Agency Does the Right Thing: Two Examples

By David North on March 8, 2023

Although the general thrust of the Biden administration’s immigration policies is regrettable, every so often a specific agency does the right thing, for the right reason. We should report on these events, even though they run counter to larger trends.

Before we get to two specific decisions we have in mind, it would be helpful to identify and describe the agency involved, which is one of the smaller and more obscure ones in the great constellation of governmental migration entities.

It is the Department of Labor’s Board of Alien Labor Certification Appeals (BALCA), and it plays a role roughly similar to the larger, busier Board of Immigration Appeals in the Department of Justice, and the Administrative Appeals Office at Homeland Security. Like both of the other appeals agencies, it rarely holds hearings, examining the paper record to make its decisions.

BALCA also has a smaller case load than the other two because it deals only with a single flow of migration matters, employers seeking to bring in foreign workers whose applications have been denied by the DOL staff. Would-be alien workers cannot bring cases to BALCA’s attention — only the employers of such workers.

BALCA has five members, all administrative law judges; the other two appeals agencies have many more decision-makers. BALCA, unlike the secrecy-obsessed AAO, records the names of all the players in its decisions: the judge or judges, and the employers and their lawyers.

The Commendable Decisions. The first of these two decisions came on February 15 when BALCA member Heather Leslie ruled that McPherson Concrete Storage, a Kansas firm, failed to explain why it needed, on a temporary basis, 20 cement finishers for 10 months, according to this Law360 article. The implication being that these were full-time or near-full-time jobs.

According to the report:

“This is problematic as the employer has requested 20 workers from March to December or ten months,” Judge Leslie said. “The evidence submitted with the application only covers at most six months.”

The second case, decided on March 2, dealt with a request for a permanent green card for a position which, oddly, was for a job with a university that is very much comparable to the jobs of the administrative judges themselves — it was for a grants auditor position for the City University of New York, clearly a professional job.

In this case the issue was whether or not CUNY had adequately explored the qualifications of the nine citizen candidates for the same job. The university turned down six of them because they did not have the requisite master’s degree and, more importantly, three others (apparently with MA’s) who “lacked the business or technical experience required for the position”.

The university, according to BALCA, did not provide documentation of its “reasons for rejecting the nine domestic candidates as instructed ... the recruitment report was only a page with a few details about four applicants.”

After reviewing the Law360 reports in both cases, I got the impression that the employers’ applications, in both cases, not only had fatal substantive failings but were deeply flawed documents; I wonder how BALCA would have ruled had the facts been the same, but the applications had been skillfully presented.

For an earlier account of ours about the same agency, see here.