If it comes to pass that the Ohio Department of Education decides to go on a witch hunt against the former Concept Dayton area teachers, it might just come to a showdown of “he said, she said,” testing the credibility of both parties -- the teachers versus the Gulenists Concept Schools’ administrators.
Personally, I have to believe that the teachers – who quite simply have nothing to gain by going public – will come out the victors, proving in the long run to be far more trustworthy than the deceitful Gulenists.
I decided to do a little digging on one of the targeted Horizon Dayton administrators, Ugur Zengince (aka Mr. Zen) and found that in the past he had been engaged in questionable activities since 2001. As a matter of fact, in a Department of Labor Findings of Denial, Zen’s Application for Alien Employment Certification (dated August 2, 2007), demonstrated a trail of deception going back to 2001.
The denial outlines numerous reasons that the initial application was rejected and as detailed below in the DOL findings. Of particular interest is that the applicant, Horizon Science Academy of Columbus, hired Zen who at the time did not meet the minimum teachings requirements for the teaching job that they supposedly advertised to American applicants. Additionally, HSA Columbus failed to demonstrate that they had searched and interviewed qualified American applicants. Further the DOL questioned the validity of the position being certified for employment and whether Zen’s job was in fact that of an actual bona fide math teacher position (especially since HSAC sent an advertisement for a network administrator to the DOL). The denial also details the fact that Zen was supposedly teaching without the prerequisite qualifications and licensure prior to his employment and application.
None of this is news to me, the state officials and feds were given evidence of this ongoing immigration and H1-B visa scam 6 years ago.
So if and when the state officials actually do their jobs, and investigate Concept Schools and their administrators, instead of the whistle-blower teachers – they might also want to take a peek at the 7-year old DOL ruling involving Zen and HSAC– because as we all know, the rotten apple does not fall far from Concept/Gulen tree, and there’s an entire orchard of them mucking up our tax dollars and education jobs.
Below is the DOL report on Zen’s application for Certification of Alien Employment:
_______________________________________________________________________________
U.S. Department of Labor Employment and Training Administration
Dallas Backlog Elimination Center 700 North Pearl St.
Suite N 400
Dallas, TX 75201
August 01, 2007
HORIZON SCIENCE ACADEMY COLUMBUS
c/o KAREN DENISE BRADLEY ESQ SKELTON MCQUISTON GOUNARIS & HENRY ATTORNEYS
130 W SECOND STREET SUITE 1818
NOTICE OF FINDINGS ETA Case Number: D-05194-19027
Alien's Name: UGUR ZEN GINCE Occupation: Secondary School Teacher
091.227-010
DAYTON, OH 45402 Date of Acceptance for
Processing: June 28, 2004
The Department of Labor has considered your Application for Alien Employment Certification. This Notice of Findings is the Department's statement of its intent to deny the application. The regulations, issued pursuant to Section 212(a)(l4) of the Immigration and Nationality Act, as amended, are designed to assure that employers adequately test the United States labor market before a labor certification is issued.
A certification cannot be issued as required by the Act, on the basis of information available, for the reasons detailed on the attached pages.
This Notice of Findings is issued in accordance with Title 20, Code of Federal Regulations, Section 656.25(c). You have until September 05, 2007 to rebut the findings or to remedy the defects outlined in the attachment. The response should be sent to the Certifying Officer in duplicate by certified mail on or before the date specified above. A rebuttal may be submitted by the employer and by the alien, but only if the employer has submitted a rebuttal. Please indicate the rebuttal due date and the ETA case number on any correspondence concerning the Notice of Findings
If a rebuttal, as described above, is received on time the Certifying Officer shall review that evidence in relation to the evidence in the file, and shall either grant or deny the labor certification pursuant to the standards set forth in § 656.24(b).
Failure to file a timely rebuttal shall mean that you have declined to exhaust administrative remedies available to you. All findings in the Notice of Findings shall be deemed admitted unless they are rebutted. Withdrawal of the application is not an available remedy. Ifthe rebuttal is not mailed by certified mail on or before September 05, 2007, this Notice of Findings automatically becomes the final decision of the Secretary denying labor certification. Further, a request for review of a denial of certification under 20 CFR § 656.26 may not be made if the Notice of Findings is not rebutted in a timely manner.
Sincerely,
Jenny Elser Certifying Officer
CC: HORIZON SCIENCE ACADEMY COLUMBUS
Enclosure(s): Detail of Findings, [Form ETA 750, Parts A & BJ, NOF Rebuttal Cover Sheet
DETAIL OF FINDINGS 656.20(c) Job offers filed on behalf of aliens on the Application for Alien Employment Certification
form must clearly show that: 656.20(c)(8) The job opportunity has been and is clearly open to any qualified U.S. worker. 656.21(b)(l) If the employer has attempted to recruit U.S. workers prior to filing the application
for certification, the employer shall document the employer's reasonable good faith efforts to recruit U. S. workers without success through the Employment Service System and/or through other labor referral and recruitment sources normal to the occupation:
656.21(b)(l)(i) this documentation shall include documentation of the employer's recruitment efforts for the job opportunity which shall:
656.21(b)(l)(i)(C) Give the number of U.S. workers responding to the employer's recruitment; 656.21(b)(l)(i)(D) Give the number of interviews conducted with U.S. workers;
656.21(b)(l)(i)(E) Specify the lawful, job-related reasons for not hiring each U. S. worker interviewed;
656.21(b)(5) The employer shall document that its requirements for the job opportunity, as described, represent the employer's actual minimum requirements for the job opportunity, and the employer has not hired workers with less training or experience for jobs similar to that involved in the job opportunity or that it is not feasible to hire workers with less training or experience than that required by the employer's job offer.
The employer, Horizon Science Academy, Columbus (hereinafter, referred to simply as, "the employer") submitted an Application for Alien Employment Certification on behalf of the alien known as Ugur Zengince. The ETA Form 750, Part A, was signed on April 29, 2004 by Hayrettin B. Karayaka, President, for the employer and was subsequently filed on June 28, 2004. The title of the job offered was "H. S. Mathematics Teacher" and the wage offered was "$33,310.00 per year." The work location for the job offered was listed on the application as "1329 Bethel Road, Columbus, Ohio 43220."
The employer submitted documentation including a photocopy of his internal posting of the job offered. However, the photocopied internal notice that was submitted stated that the job offered was for a "Network Administrator." It is not known by this office if, perhaps, the employer and/or his attorney's office may have inadvertently mixed up the supporting documentation submitted for the employer's numerous applications that were simultaneously filed on or about the date of June 28, 2004, but this office cannot accept the submitted photocopied notice as documentation in support of the employer's recruitment efforts for the job offered in the instant application for a high school mathematics teacher. It was noted that other documentation of the employer's recruitment found in the instant case file did reference the correct job title/occupation.
Additionally, the employer's letter addressed "To Whom It May Concern" dated February 10, 2004 and signed by Hayrettin B. Karayaka, Board President for the employer states, "Mr. U gur Zengince has been working as a Mathematics Teacher at Horizon Science Academy since December 1, 2001 at a salary of $31,500 per year with H-1B visa." A photocopy found in the case file of the alien's notification from United States Citizenship and Immigration Services (USCIS, formerly Immigration and Naturalization Service) states that the alien was initially approved for a Hl-B visa through a petition from the employer that was submitted on November 13, 2001 and is valid from November 14, 2001. The USCIS notification also stated that the H-lB status represented a "change of status" for the alien. According to the alien's statements on the ETA Form 750, Part B, Items 15(a), (b), (c), and (d), the employer is the only employer that the alien has had in the United States as of the date of filing the instant application. Item 15(a) states that the alien began working in the job offered sometime in January of 2001. The holder of an F-1, so-called "student," visa does not have the legal authority to work in the United States except under certain, limited conditions and even then, only with the knowledge of and prior permission and approvals from USC IS and the school the alien is attending. Ifthe instant alien was working for the employer starting in the year 2001 while still on F-1 student visa status, the alien may have been in violation of his legal status in the United States and might have been unlawfully present in the U.S., thus making him/her possibly subject to deportation and unavailable for the job offered.
Furthermore, the employer stated on the ETA Form 750, part A, Item 15, that the job offered required that a worker have a "State of Ohio license to teach." The employer rejected multiple individuals who responded to his advertisement of the job opportunity for the reason that they were "not certified to teach grades 7-12." It is not lawful for an employer to reject U.S. workers for not having qualifications that the alien also lacks, unless the employer can document a change in his business activity that prevents him from currently hiring a worker with less than the minimum qualifications listed by the employer on the ETA Form 750, Part A, Items 14 and 15.
A photocopy of the alien's "Long-Term Substitute License" issued by the State of Ohio to the alien on January 11, 2002 submitted by the employer/alien beneficiary in support of the alien's qualifications for the job offered stated that the alien's teaching license valid beginning July l, 2002. Mr. Don White with the State of Ohio Department of Education stated to this officer in a telephone conversation the morning of July 31, 2007 that licenses are issued throughout a given school year, but are always dated to be valid from the first day of the given school year during which the license was issued. Mr. White further stated that he knew of no state legal provision that would allow an individual to begin teaching in any public and/or community (i.e. charter) school classroom in the State of Ohio without a valid license issued by his agency. Thus, it would appear that, at the time the alien was hired by the employer and began working in the job offered, he may not have possessed the employer's stated minimum requirements for the job offered and may not have even possessed the legal ability to perform the duties of the job offered.
Additionally, the current website of Horizon Science Academy, Columbus does not list the beneficiary alien as currently on the teaching staff at that academy. The website listed the names of three (3) individuals as being "Mathematics Teachers" at the academy. Therefore, it would appear that the job offered may be already occupied by another worker or, that the employer is creating an additional mathematics teaching position for grades 7-12. According to the State of Ohio's public website, the total student enrollment in grades 5-12 at Horizon Science Academy Columbus was 600 in 2006 with a teaching staff totaling 50 teachers. Assuming that student enrollment was equally divided in all grades taught at the
academy, for 2006 there would have been approximately 450 students in grades 7-12 for three (3) mathematics teachers, or an average of 150 "upper level" students per math teacher,. Assuming that each math teacher has six periods to teach each day, then each "upper level" math class would be comprised of approximately 25 students.
Since the enrollment figures for the academy in 2004 (the year the instant application was filed) were much lower than enrollment during 2006, this office is unable to determine that the job offered either existed prior to the offer to the alien, or was being created not to solely benefit the alien, but only in response to the employer's business necessity. A job that is being created solely to benefit the alien is not a job that has been and is clearly open to any qualified U. S. worker. Furthermore, this office is unable to determine that, without a volume of work available to support an additional full-time, permanent job position teaching mathematics for grades 7-12, the job being offered is a bona fide job opportunity, as defined by federal regulations.
Therefore, this office is unable to determine that the employer conducted an adequate test of the labor market in the area of intended employment during the six months immediately preceding the filing date of the instant application by posting the required internal notification of the job opportunity.
This office is also unable to determine that, at the time the employer hired the alien in the job offered, the alien possessed all the minimum qualifications for the job offered, including possessing the ability to work in the United States and the ability to teach in a community school in the State of Ohio. Therefore, it appears that the employer may not have stated his minimum requirements for the job offered because he may have hired workers in the past for the same job as the job offered who lacked the minimum qualifications that the employer listed on his ETA Form 750, Part A, Item 15, and for which reason the employer rejected multiple individuals who applied for the job opportunity.
This office is also unable to determine that the job offered is a bona fide job opportunity that has been, and is, clearly open to any qualified U. S. worker.
The employer may rebut these findings by:
illSubmitting a sworn affidavit from the beneficiary alien of the instant application attesting to the fact that, as of the date s/he first began to work for the employer in the job offered and continuing to the present date, s/he has been legally able and available to perform the duties of the job offered;
-AND- illSubmitting documentation to substantiate the alien's work history (as listed on the ETA Form 750, Part B, Item (a)), which must include, but is not necessarily limited to, the following:
(a) photocopies of any and all federal W-2 "Wage and Tax Statements" and/or any and all federal Forms 1099 "Miscellaneous Income" issued by the employer to the instant beneficiary alien for the years 2001 to 2006;
(b) photocopies of any and all required quarterly wage reports submitted by the employer to the State of Ohio that reported wages for purposes of unemployment insurance contributions paid by the employer on behalf of the instant alien from the date of January 1, 2001 and continuing to the present date;
(c) photocopies of any and all paychecks and/or business records and/or business banking records showing any and all wages and/ or monetary compensation of any type paid to the instant beneficiary alien by the employer from the date of January 1, 2001 and continuing to the present date; and,
(d) a photocopy of the instant beneficiary alien's initial contract for employment with the employer showing the date of execution;
(e) photocopies of any and all of the employer's business records and reports submitted to the State of Ohio that document the dates and amounts of any and all contributions from the employer paid on behalf of the alien into the State of Ohio's state pension fund system.
-AND- illSubmitting complete documentation of the employer's initial effort to recruit U. S. workers for the job offered of "H.S. Mathematics Teacher", which must include documentation of the employer's internal posting of the job opportunity and a fully detailed recruitment report containing all the required information (see Section 656.21 (b)(l)(i)(C), (D), and (E) above), as well as photocopies of any and all resumes received by the employer in response to his initial recruitment efforts for the job offered;
illSubmitting documentation to show that either the job offered existed prior to the offer to the alien beneficiary, or, in the alternative, that the job offered is being created solely due to a change in the employer's business that occurred during the six months immediately preceding or concurrently with the filing date of the instant application that (a) necessitated the addition of a new full-time, permanent position to teach mathematics for grades 7-12; and, (b) provided a volume of work available to support a full-time, permanent job opportunity in the occupation of the job offered and performing the duties of the job offered in the area of intended employment of the alien for the wage/salary offered by the employer.
The DOL has previously decided that the burden of proof in all labor certification applications is upon the employer. The DOL has also ruled that a written assertion lacking in any supporting reasoning or evidence, while constituting evidence that must be considered, is generally insufficient to carry an employer's burden of proof.
656.3 Definitions. Application means an Application for Alien Employment Certification form and any other documents submitted by an alien and/or employer (or their agents) in applying for a labor certification under this part.
656.3 Basic Labor Certification Process.
656.21(a) Except as otherwise provided by 656.2l(a) and 656.22 an employer who desires to apply for a labor certification on behalf of an alien shall file, signed by hand and in duplicate, a Department of Labor Application for Alien Employment Cert!fication form.
A copy of the Form ETA 750, Parts A and B, have been returned in the event that any changes are necessary. The amended copies must be returned with your resubmission. Any amendments made to the ETA 750, Part A must be initialed and dated by the employer, and any amendments made to the ETA 750, Part B must be initialed and dated by the alien, as appropriate.
FAILURE TO RETURN THE ETA 750, PARTS A AND B (WITH OTHER REBUTTAL INFORMATION WHERE APPLICABLE) WILL RESULT IN DENIAL OF THE INSTANT APPLICATION. It is the employer's responsibility to submit rebuttal evidence in a timely manner directly to the Certifying Officer.
ALL ENCLOSURES ACCOMPANYING THIS NOTICE OF FINDINGS MUST BE RETURNED WITH THE REBUTTAL INFORMATION.
NOTICE OF FINDINGS: Rebuttal Cover Sheet
IMPORTANT: You must include this cover sheet with your rebuttal of the notice of findings.
TO: Dallas Backlog Processing Center 700 North Pearl St. Suite N 400
Dallas, TX 75201
FROM:
HORIZON SCIENCE ACADEMY COLUMBUS c/o KAREN DENISE BRADLEY ESQ
SKELTON MCQUISTON GOUNARIS & HENRY ATTORNEYS 130 W SECOND STREET SUITE 1818
DAYTON, OH 45402
FOR CASE:
HORIZON SCIENCE ACADEMY COLUMBUS
Due Date:
ETA Case Number: Analyst Handling Case:
September 05, 2007 D-05194-19027
Gabrielle Camus
Personally, I have to believe that the teachers – who quite simply have nothing to gain by going public – will come out the victors, proving in the long run to be far more trustworthy than the deceitful Gulenists.
I decided to do a little digging on one of the targeted Horizon Dayton administrators, Ugur Zengince (aka Mr. Zen) and found that in the past he had been engaged in questionable activities since 2001. As a matter of fact, in a Department of Labor Findings of Denial, Zen’s Application for Alien Employment Certification (dated August 2, 2007), demonstrated a trail of deception going back to 2001.
The denial outlines numerous reasons that the initial application was rejected and as detailed below in the DOL findings. Of particular interest is that the applicant, Horizon Science Academy of Columbus, hired Zen who at the time did not meet the minimum teachings requirements for the teaching job that they supposedly advertised to American applicants. Additionally, HSA Columbus failed to demonstrate that they had searched and interviewed qualified American applicants. Further the DOL questioned the validity of the position being certified for employment and whether Zen’s job was in fact that of an actual bona fide math teacher position (especially since HSAC sent an advertisement for a network administrator to the DOL). The denial also details the fact that Zen was supposedly teaching without the prerequisite qualifications and licensure prior to his employment and application.
None of this is news to me, the state officials and feds were given evidence of this ongoing immigration and H1-B visa scam 6 years ago.
So if and when the state officials actually do their jobs, and investigate Concept Schools and their administrators, instead of the whistle-blower teachers – they might also want to take a peek at the 7-year old DOL ruling involving Zen and HSAC– because as we all know, the rotten apple does not fall far from Concept/Gulen tree, and there’s an entire orchard of them mucking up our tax dollars and education jobs.
Below is the DOL report on Zen’s application for Certification of Alien Employment:
_______________________________________________________________________________
U.S. Department of Labor Employment and Training Administration
Dallas Backlog Elimination Center 700 North Pearl St.
Suite N 400
Dallas, TX 75201
August 01, 2007
HORIZON SCIENCE ACADEMY COLUMBUS
c/o KAREN DENISE BRADLEY ESQ SKELTON MCQUISTON GOUNARIS & HENRY ATTORNEYS
130 W SECOND STREET SUITE 1818
NOTICE OF FINDINGS ETA Case Number: D-05194-19027
Alien's Name: UGUR ZEN GINCE Occupation: Secondary School Teacher
091.227-010
DAYTON, OH 45402 Date of Acceptance for
Processing: June 28, 2004
The Department of Labor has considered your Application for Alien Employment Certification. This Notice of Findings is the Department's statement of its intent to deny the application. The regulations, issued pursuant to Section 212(a)(l4) of the Immigration and Nationality Act, as amended, are designed to assure that employers adequately test the United States labor market before a labor certification is issued.
A certification cannot be issued as required by the Act, on the basis of information available, for the reasons detailed on the attached pages.
This Notice of Findings is issued in accordance with Title 20, Code of Federal Regulations, Section 656.25(c). You have until September 05, 2007 to rebut the findings or to remedy the defects outlined in the attachment. The response should be sent to the Certifying Officer in duplicate by certified mail on or before the date specified above. A rebuttal may be submitted by the employer and by the alien, but only if the employer has submitted a rebuttal. Please indicate the rebuttal due date and the ETA case number on any correspondence concerning the Notice of Findings
If a rebuttal, as described above, is received on time the Certifying Officer shall review that evidence in relation to the evidence in the file, and shall either grant or deny the labor certification pursuant to the standards set forth in § 656.24(b).
Failure to file a timely rebuttal shall mean that you have declined to exhaust administrative remedies available to you. All findings in the Notice of Findings shall be deemed admitted unless they are rebutted. Withdrawal of the application is not an available remedy. Ifthe rebuttal is not mailed by certified mail on or before September 05, 2007, this Notice of Findings automatically becomes the final decision of the Secretary denying labor certification. Further, a request for review of a denial of certification under 20 CFR § 656.26 may not be made if the Notice of Findings is not rebutted in a timely manner.
Sincerely,
Jenny Elser Certifying Officer
CC: HORIZON SCIENCE ACADEMY COLUMBUS
Enclosure(s): Detail of Findings, [Form ETA 750, Parts A & BJ, NOF Rebuttal Cover Sheet
DETAIL OF FINDINGS 656.20(c) Job offers filed on behalf of aliens on the Application for Alien Employment Certification
form must clearly show that: 656.20(c)(8) The job opportunity has been and is clearly open to any qualified U.S. worker. 656.21(b)(l) If the employer has attempted to recruit U.S. workers prior to filing the application
for certification, the employer shall document the employer's reasonable good faith efforts to recruit U. S. workers without success through the Employment Service System and/or through other labor referral and recruitment sources normal to the occupation:
656.21(b)(l)(i) this documentation shall include documentation of the employer's recruitment efforts for the job opportunity which shall:
656.21(b)(l)(i)(C) Give the number of U.S. workers responding to the employer's recruitment; 656.21(b)(l)(i)(D) Give the number of interviews conducted with U.S. workers;
656.21(b)(l)(i)(E) Specify the lawful, job-related reasons for not hiring each U. S. worker interviewed;
656.21(b)(5) The employer shall document that its requirements for the job opportunity, as described, represent the employer's actual minimum requirements for the job opportunity, and the employer has not hired workers with less training or experience for jobs similar to that involved in the job opportunity or that it is not feasible to hire workers with less training or experience than that required by the employer's job offer.
The employer, Horizon Science Academy, Columbus (hereinafter, referred to simply as, "the employer") submitted an Application for Alien Employment Certification on behalf of the alien known as Ugur Zengince. The ETA Form 750, Part A, was signed on April 29, 2004 by Hayrettin B. Karayaka, President, for the employer and was subsequently filed on June 28, 2004. The title of the job offered was "H. S. Mathematics Teacher" and the wage offered was "$33,310.00 per year." The work location for the job offered was listed on the application as "1329 Bethel Road, Columbus, Ohio 43220."
The employer submitted documentation including a photocopy of his internal posting of the job offered. However, the photocopied internal notice that was submitted stated that the job offered was for a "Network Administrator." It is not known by this office if, perhaps, the employer and/or his attorney's office may have inadvertently mixed up the supporting documentation submitted for the employer's numerous applications that were simultaneously filed on or about the date of June 28, 2004, but this office cannot accept the submitted photocopied notice as documentation in support of the employer's recruitment efforts for the job offered in the instant application for a high school mathematics teacher. It was noted that other documentation of the employer's recruitment found in the instant case file did reference the correct job title/occupation.
Additionally, the employer's letter addressed "To Whom It May Concern" dated February 10, 2004 and signed by Hayrettin B. Karayaka, Board President for the employer states, "Mr. U gur Zengince has been working as a Mathematics Teacher at Horizon Science Academy since December 1, 2001 at a salary of $31,500 per year with H-1B visa." A photocopy found in the case file of the alien's notification from United States Citizenship and Immigration Services (USCIS, formerly Immigration and Naturalization Service) states that the alien was initially approved for a Hl-B visa through a petition from the employer that was submitted on November 13, 2001 and is valid from November 14, 2001. The USCIS notification also stated that the H-lB status represented a "change of status" for the alien. According to the alien's statements on the ETA Form 750, Part B, Items 15(a), (b), (c), and (d), the employer is the only employer that the alien has had in the United States as of the date of filing the instant application. Item 15(a) states that the alien began working in the job offered sometime in January of 2001. The holder of an F-1, so-called "student," visa does not have the legal authority to work in the United States except under certain, limited conditions and even then, only with the knowledge of and prior permission and approvals from USC IS and the school the alien is attending. Ifthe instant alien was working for the employer starting in the year 2001 while still on F-1 student visa status, the alien may have been in violation of his legal status in the United States and might have been unlawfully present in the U.S., thus making him/her possibly subject to deportation and unavailable for the job offered.
Furthermore, the employer stated on the ETA Form 750, part A, Item 15, that the job offered required that a worker have a "State of Ohio license to teach." The employer rejected multiple individuals who responded to his advertisement of the job opportunity for the reason that they were "not certified to teach grades 7-12." It is not lawful for an employer to reject U.S. workers for not having qualifications that the alien also lacks, unless the employer can document a change in his business activity that prevents him from currently hiring a worker with less than the minimum qualifications listed by the employer on the ETA Form 750, Part A, Items 14 and 15.
A photocopy of the alien's "Long-Term Substitute License" issued by the State of Ohio to the alien on January 11, 2002 submitted by the employer/alien beneficiary in support of the alien's qualifications for the job offered stated that the alien's teaching license valid beginning July l, 2002. Mr. Don White with the State of Ohio Department of Education stated to this officer in a telephone conversation the morning of July 31, 2007 that licenses are issued throughout a given school year, but are always dated to be valid from the first day of the given school year during which the license was issued. Mr. White further stated that he knew of no state legal provision that would allow an individual to begin teaching in any public and/or community (i.e. charter) school classroom in the State of Ohio without a valid license issued by his agency. Thus, it would appear that, at the time the alien was hired by the employer and began working in the job offered, he may not have possessed the employer's stated minimum requirements for the job offered and may not have even possessed the legal ability to perform the duties of the job offered.
Additionally, the current website of Horizon Science Academy, Columbus does not list the beneficiary alien as currently on the teaching staff at that academy. The website listed the names of three (3) individuals as being "Mathematics Teachers" at the academy. Therefore, it would appear that the job offered may be already occupied by another worker or, that the employer is creating an additional mathematics teaching position for grades 7-12. According to the State of Ohio's public website, the total student enrollment in grades 5-12 at Horizon Science Academy Columbus was 600 in 2006 with a teaching staff totaling 50 teachers. Assuming that student enrollment was equally divided in all grades taught at the
academy, for 2006 there would have been approximately 450 students in grades 7-12 for three (3) mathematics teachers, or an average of 150 "upper level" students per math teacher,. Assuming that each math teacher has six periods to teach each day, then each "upper level" math class would be comprised of approximately 25 students.
Since the enrollment figures for the academy in 2004 (the year the instant application was filed) were much lower than enrollment during 2006, this office is unable to determine that the job offered either existed prior to the offer to the alien, or was being created not to solely benefit the alien, but only in response to the employer's business necessity. A job that is being created solely to benefit the alien is not a job that has been and is clearly open to any qualified U. S. worker. Furthermore, this office is unable to determine that, without a volume of work available to support an additional full-time, permanent job position teaching mathematics for grades 7-12, the job being offered is a bona fide job opportunity, as defined by federal regulations.
Therefore, this office is unable to determine that the employer conducted an adequate test of the labor market in the area of intended employment during the six months immediately preceding the filing date of the instant application by posting the required internal notification of the job opportunity.
This office is also unable to determine that, at the time the employer hired the alien in the job offered, the alien possessed all the minimum qualifications for the job offered, including possessing the ability to work in the United States and the ability to teach in a community school in the State of Ohio. Therefore, it appears that the employer may not have stated his minimum requirements for the job offered because he may have hired workers in the past for the same job as the job offered who lacked the minimum qualifications that the employer listed on his ETA Form 750, Part A, Item 15, and for which reason the employer rejected multiple individuals who applied for the job opportunity.
This office is also unable to determine that the job offered is a bona fide job opportunity that has been, and is, clearly open to any qualified U. S. worker.
The employer may rebut these findings by:
illSubmitting a sworn affidavit from the beneficiary alien of the instant application attesting to the fact that, as of the date s/he first began to work for the employer in the job offered and continuing to the present date, s/he has been legally able and available to perform the duties of the job offered;
-AND- illSubmitting documentation to substantiate the alien's work history (as listed on the ETA Form 750, Part B, Item (a)), which must include, but is not necessarily limited to, the following:
(a) photocopies of any and all federal W-2 "Wage and Tax Statements" and/or any and all federal Forms 1099 "Miscellaneous Income" issued by the employer to the instant beneficiary alien for the years 2001 to 2006;
(b) photocopies of any and all required quarterly wage reports submitted by the employer to the State of Ohio that reported wages for purposes of unemployment insurance contributions paid by the employer on behalf of the instant alien from the date of January 1, 2001 and continuing to the present date;
(c) photocopies of any and all paychecks and/or business records and/or business banking records showing any and all wages and/ or monetary compensation of any type paid to the instant beneficiary alien by the employer from the date of January 1, 2001 and continuing to the present date; and,
(d) a photocopy of the instant beneficiary alien's initial contract for employment with the employer showing the date of execution;
(e) photocopies of any and all of the employer's business records and reports submitted to the State of Ohio that document the dates and amounts of any and all contributions from the employer paid on behalf of the alien into the State of Ohio's state pension fund system.
-AND- illSubmitting complete documentation of the employer's initial effort to recruit U. S. workers for the job offered of "H.S. Mathematics Teacher", which must include documentation of the employer's internal posting of the job opportunity and a fully detailed recruitment report containing all the required information (see Section 656.21 (b)(l)(i)(C), (D), and (E) above), as well as photocopies of any and all resumes received by the employer in response to his initial recruitment efforts for the job offered;
illSubmitting documentation to show that either the job offered existed prior to the offer to the alien beneficiary, or, in the alternative, that the job offered is being created solely due to a change in the employer's business that occurred during the six months immediately preceding or concurrently with the filing date of the instant application that (a) necessitated the addition of a new full-time, permanent position to teach mathematics for grades 7-12; and, (b) provided a volume of work available to support a full-time, permanent job opportunity in the occupation of the job offered and performing the duties of the job offered in the area of intended employment of the alien for the wage/salary offered by the employer.
The DOL has previously decided that the burden of proof in all labor certification applications is upon the employer. The DOL has also ruled that a written assertion lacking in any supporting reasoning or evidence, while constituting evidence that must be considered, is generally insufficient to carry an employer's burden of proof.
656.3 Definitions. Application means an Application for Alien Employment Certification form and any other documents submitted by an alien and/or employer (or their agents) in applying for a labor certification under this part.
656.3 Basic Labor Certification Process.
656.21(a) Except as otherwise provided by 656.2l(a) and 656.22 an employer who desires to apply for a labor certification on behalf of an alien shall file, signed by hand and in duplicate, a Department of Labor Application for Alien Employment Cert!fication form.
A copy of the Form ETA 750, Parts A and B, have been returned in the event that any changes are necessary. The amended copies must be returned with your resubmission. Any amendments made to the ETA 750, Part A must be initialed and dated by the employer, and any amendments made to the ETA 750, Part B must be initialed and dated by the alien, as appropriate.
FAILURE TO RETURN THE ETA 750, PARTS A AND B (WITH OTHER REBUTTAL INFORMATION WHERE APPLICABLE) WILL RESULT IN DENIAL OF THE INSTANT APPLICATION. It is the employer's responsibility to submit rebuttal evidence in a timely manner directly to the Certifying Officer.
ALL ENCLOSURES ACCOMPANYING THIS NOTICE OF FINDINGS MUST BE RETURNED WITH THE REBUTTAL INFORMATION.
NOTICE OF FINDINGS: Rebuttal Cover Sheet
IMPORTANT: You must include this cover sheet with your rebuttal of the notice of findings.
TO: Dallas Backlog Processing Center 700 North Pearl St. Suite N 400
Dallas, TX 75201
FROM:
HORIZON SCIENCE ACADEMY COLUMBUS c/o KAREN DENISE BRADLEY ESQ
SKELTON MCQUISTON GOUNARIS & HENRY ATTORNEYS 130 W SECOND STREET SUITE 1818
DAYTON, OH 45402
FOR CASE:
HORIZON SCIENCE ACADEMY COLUMBUS
Due Date:
ETA Case Number: Analyst Handling Case:
September 05, 2007 D-05194-19027
Gabrielle Camus
