And around and around the green card merry-go-round we go
We recently came across a 2007 case between Horizon Science Academy and the US Department of Labor , and more specifically an appeal case regarding a denied green card/permanent residency application that was submitted by Horizon/Concept Schools on behalf of alien (their word -- not ours), Ayahn Caputlu.
Apparently, this guy Caputlu got caught up in one of the boys’ more famous games of – make-up a job, fake an American applicant hunt, apply for green card, and when denied – move on to the next school, and try again. But this time, the boys got caught when the DOL figured out that Caputlu’s job was summarily fabricated for the benefit of a green card, rather than that of legitimate educational purposes – or in other words –a real bonafide job and a qualfied candidate, of which there was neither.
Another interesting part of this story is that Salim Ucan was the Director of the Chicago Math and Science Academy during part of the time when Caputulu was riding the green card merry-go-round. So it would be a reasonable assumption that Sam would have had some experience in dealing with the Department of Labor, despite his recent assertions to the contrary. Isn’t Salim, the current Vice President of Concept Schools , the same guy who during a recent news story underplayed the ongoing DOL investigations involving the Concept Schools that his organization manages?
The more compelling parts of the DOL’s denial decision are as follows:
“We agree. As stated above, the job opportunity set forth in the initial ETA 750A form does not exist. Accordingly, there is no bona fide job opportunity available for a Mathematics Teacher at Horizon Science Academy of Columbus, Ohio. Therefore, the Employer’s counsel is seeking labor certification on behalf of the Alien, through a different employer (i.e., Chicago Math & Science Academy or Concept Schools) located in Illinois. As we held in International Contractors, Inc. and Technical Programming Services, Inc., 1989-INA-278 (June 13, 1990), a change of employers requires a new application unless the alien is working in the exact same position, performing the same duties, in the same area of intended employment, and for the same wages.
In the present case, the Alien is clearly not working in the same area of intended employment, since the position has moved from Ohio to Illinois. Moreover, the wage offer for the job in Ohio was $30,000 per year (AF 284), while the salary in Illinois is $39,000 per year (AF 218). Accordingly, a substitution of employers is not acceptable. In view of the foregoing, we find that labor certification was properly denied.”
In other words, the boys made up the position and when their boy Caputlu was denied a position and green card, they made up another one, and another one, until he was – once and for all – denied. But in the interim, the boys did what they do best – they appealed the decision and carried out this feat of folly for over 4 years. And you can bet your first born that the taxpayers got stuck with the bill for the appeal process and the lawyers.
The decision in its entirely can be found below:
http://www.oalj.dol.gov/Decisions/ALJ/INA/2006/In_re_HORIZON_SCIENCE_ACAD_2006INA00046_%28MAR_08_2007%29_104152_CADEC_SD_files/css/In_re_HORIZON_SCIENCE_ACAD_2006INA00046_%28MAR_08_2007%29_104152_CADEC_SD.HTM
U.S. Department of Labor Board of Alien Labor Certification Appeals 800 K Street, NW, Suite 400-N Washington, DC 20001-8002 (202) 693-7300 (202) 693-7365 (FAX) Issue Date: 08 March 2007 BALCA Case No.: 2006-INA-00046 ETA Case No.: D-05014-29925
In the Matter of: HORIZON SCIENCE ACADEMY, Employer, on behalf of AYHAN CAPUTLU, Alien.
Appearance: Karen Denise Bradley, Esquire Dayton, Ohio For the Employer and the Alien Certifying Officer: Jenny Elser Dallas Backlog Elimination Center Before: Chapman, Wood and Vittone Administrative Law Judges
DECISION AND ORDER PER CURIAM. Horizon Science Academy (“Employer”) filed an application for labor certification on behalf of Ayhan Caputlu (“Alien”) pursuant to section 212(a)(5)(A) of the Immigration and Nationality Act, 8 U.S.C. §1182(a)(5)(A)(the "Act"), and Title 20, Part 656 of the Code of Federal Regulations (“C.F.R.”).1
The U.S. Department of Labor Certifying Officer 1. This application was filed prior to the effective date of the “PERM” regulations. See 69 Fed. Reg. 77326 (Dec. 27, 2004). Accordingly, the regulatory citations in this decision are to the 2004 edition of the Code of Federal Regulations published by the Government Printing Office on behalf of the Office of the Federal Register, National -2- (“CO”) denied the labor certification application. The Employer requested review pursuant to 20 C.F.R. §656.26.
STATEMENT OF THE CASE On July 14, 2003, the Employer, Horizon Science Academy, a not-for-profit State funded community school located in Columbus, Ohio, filed an application for labor certification to enable the Alien to fill the position of Mathematics Teacher, classified by the Job Service as Secondary School Teacher (AF 284). The stated requirements were a B.A. or B.S. degree in Mathematics, and a State of Ohio Teaching Certificate (AF 284). By letter, dated April 12, 2005, the Employer’s counsel requested that “Chicago Math & Science Academy” be substituted as the new employer (AF 270). The Employer’s counsel submitted a revised application, which stated that the newly identified employer is a Charter High School located in Chicago, Illinois. In addition, the revised application reflected newly stated job requirements. In addition to a B.A. degree in Mathematics, the new job requirements included one year of experience in the job offered, and a State of Illinois teacher's license (AF 272).2 Under cover letter dated October 17, 2005, the Employer’s counsel provided documentation which showed that Concept Schools, an Illinois non-profit corporation, located in Elk Grove Village, Illinois, had entered into management agreements with Chicago Math & Science Academy and Horizon Science Academy, which became effective on January 1, 2004 and September 1, 2004, respectively (AF 247-263). Based upon the foregoing, the Employer’s counsel requested that Concept Schools be substituted as the new employer. However, the Employer’s counsel also stated that if Concept Schools does not qualify under the regulations, Archives and Record Administration, 20 C.F.R. Part 656 (Revised on Apr. 1, 2004), unless otherwise noted. We base our decision on the record upon which the CO denied certification and Employer’s request for review, as contained in the appeal file (“AF”) and any written arguments. 20 C.F.R. §656.27(c). 2 There was also a notation of 1 year of experience in a “Related Occupation.” However, the related occupation was not specified (AF 272). -3- then, “we wish to retain this certification on behalf of Horizon Science Academy, Columbus on behalf of Mr. Ayhan Caputlu.” (AF 248).
In a Notice of Findings ("NOF") issued on December 21, 2005, the CO proposed to deny certification on the grounds, inter alia, that the Employer failed to establish that there is a bona fide, current, permanent, full-time job opportunity to which qualified U.S. workers can be referred (AF 241-246). The Employer filed its rebuttal on or about January 25, 2006 (AF 189- 210). The CO found the rebuttal unpersuasive and issued a Final Determination, dated February 1, 2006, denying certification (AF 186-188).
On February 17, 2006, the Employer filed a “Request for Review and Reconsideration of Employer’s Request for Substitution of Employer on a Case Recently Denied” (AF 163-185). On March 6, 2006, the CO denied the motion for reconsideration, noting that the issues raised therein were fully disposed of in the Final Determination (AF 162). Thereafter, the Employer filed its Request for Review (AF 1-161). Subsequently, the CO forwarded this matter to the Board of Alien Labor Certification Appeals, and the Appeal File was received on May 26, 2006.
Following the issuance of a “Notice of Docketing and Order Requiring Statement of Position or Legal Brief,” dated June 7, 2006, the Employer’s counsel resubmitted its Request for Review with accompanying documents.
3 DISCUSSION In the NOF, the CO cited 20 C.F.R. §656.20(c)(8), which states that the job opportunity must be clearly open to qualified U.S. workers. In addition, the CO cited the provisions of 20 C.F.R. §656.3, which defines the term “Employer” as a person, association, firm, or corporation which currently has a location within the United States to which U.S. workers may be referred for employment and which proposes to employ a full-time worker at a place within the United States or the authorized representative of such a person, association, firm, or corporation.
3 Although not the basis for our decision herein, we note that a copy of the Notice of Docketing was sent to the Alien at an address in Chicago, IL that corresponds to the Alien’s address as listed on amended ETA 750A forms (AF 80, 115). However, the U.S. postal service marked the response as follows: “Return to Sender, Not deliverable As Addressed, Unable to Forward.” -4- As outlined above, the original ETA 750A form listed the Employer as Horizon Science Academy, located in Columbus, Ohio. However, on April 12, 2005, the Employer’s counsel requested permission to substitute a new employer, namely Chicago Math & Science Academy, located in Chicago, Illinois. Subsequently, on October 17, 2005, the Employer’s counsel requested that Concepts School, located in Elk Grove Village, Illinois, be substituted as the new employer, but that, if it does not qualify, then Horizon Science Academy should retain its status as the Employer for the Alien. In view of the foregoing, the CO stated, in pertinent part: At this point there are three different employers that appear to be requesting certification for one alleged job opportunity. This brings into question the validity of the job opportunity being offered. A single Mathematics teacher job cannot be offered by three different employers; one in Columbus, Ohio; one in Chicago, Illinois and one in Elk Grove Village, Illinois. Furthermore, the job in question is either located in Columbus or it is located in Chicago or in Elk Grove Village. It can’t be changed based on convenience or likelihood of being certified. In addition, a check of the Chicago Math & Science Academy website, as recently as December 5, 2005, shows the alien, Ayhan Caputlu, already on the school’s staff as an 8th grade Math Teacher. This would appear to indicate that there is not a bona fide job opening at the Horizon Science Academy in Columbus and that the alien has filled an opening in the Chicago school. Because the job does not appear to be bona fide, the job cannot have been open to any qualified U.S. worker. This is a violation of Federal regulations.
The employer may rebut this finding by submitting documentation that the job in Columbus, Ohio does truly exist and is not currently filled. They must satisfactorily explain why, if the Columbus job remains open, they sought to simply abandon that job offer and substitute and [sic] offer from a different employer, located in a different state. (AF 243-244). Rather than submit the requested documentation, the Employer’s counsel stated, in rebuttal: -5- It should be noted that the job opportunity only exists at Chicago Math and Science and the job opportunity which previously existed at Horizon, Columbus in 2003 when the RIR application was filed, no longer exists. (AF 190).
In the Final Determination, the CO cited the above rebuttal language, and stated, in pertinent part: As a result of this admission, it is determined that the employer did not successfully remedy the deficiency or rebut the finding. The issue of a bona fide job opportunity with Horizon Science Academy in Columbus, Ohio remains unresolved. The application for Foreign Labor Certification is therefore denied. (AF 188).
We agree. As stated above, the job opportunity set forth in the initial ETA 750A form does not exist. Accordingly, there is no bona fide job opportunity available for a Mathematics Teacher at Horizon Science Academy of Columbus, Ohio. Therefore, the Employer’s counsel is seeking labor certification on behalf of the Alien, through a different employer (i.e., Chicago Math & Science Academy or Concept Schools) located in Illinois. As we held in International Contractors, Inc. and Technical Programming Services, Inc., 1989-INA-278 (June 13, 1990), a change of employers requires a new application unless the alien is working in the exact same position, performing the same duties, in the same area of intended employment, and for the same wages.
In the present case, the Alien is clearly not working in the same area of intended employment, since the position has moved from Ohio to Illinois. Moreover, the wage offer for the job in Ohio was $30,000 per year (AF 284), while the salary in Illinois is $39,000 per year (AF 218). Accordingly, a substitution of employers is not acceptable. In view of the foregoing, we find that labor certification was properly denied.
-6- ORDER The Certifying Officer's denial of labor certification is hereby AFFIRMED. Entered at the direction of the panel by: A Todd R. Smyth Secretary to the Board of Alien Labor Certification Appeals
NOTICE OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Order will become the final decision of the Secretary unless within 20 days from the date of service, a party petitions for review by the full Board of Alien Labor Certification Appeals. Such review is not favored, and ordinarily will not be granted except (1) when full Board consideration is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance. Petitions must be filed with: Chief Docket Clerk Office of Administrative Law Judges Board of Alien Labor Certification Appeals 800 K Street, N.W., Suite 400 Washington, D.C. 20001-8002 Copies of the petition must also be served on other parties, and should be accompanied by a written statement setting forth the date and manner of service. The petition shall specify the basis for requesting full Board review with supporting authority, if any, and shall not exceed five double-spaced typewritten pages. Responses, if any, shall be filed within ten days of the service of the petition, and shall not exceed five double-spaced typewritten pages. Upon the granting of the petition the Board may order briefs.
Apparently, this guy Caputlu got caught up in one of the boys’ more famous games of – make-up a job, fake an American applicant hunt, apply for green card, and when denied – move on to the next school, and try again. But this time, the boys got caught when the DOL figured out that Caputlu’s job was summarily fabricated for the benefit of a green card, rather than that of legitimate educational purposes – or in other words –a real bonafide job and a qualfied candidate, of which there was neither.
Another interesting part of this story is that Salim Ucan was the Director of the Chicago Math and Science Academy during part of the time when Caputulu was riding the green card merry-go-round. So it would be a reasonable assumption that Sam would have had some experience in dealing with the Department of Labor, despite his recent assertions to the contrary. Isn’t Salim, the current Vice President of Concept Schools , the same guy who during a recent news story underplayed the ongoing DOL investigations involving the Concept Schools that his organization manages?
The more compelling parts of the DOL’s denial decision are as follows:
“We agree. As stated above, the job opportunity set forth in the initial ETA 750A form does not exist. Accordingly, there is no bona fide job opportunity available for a Mathematics Teacher at Horizon Science Academy of Columbus, Ohio. Therefore, the Employer’s counsel is seeking labor certification on behalf of the Alien, through a different employer (i.e., Chicago Math & Science Academy or Concept Schools) located in Illinois. As we held in International Contractors, Inc. and Technical Programming Services, Inc., 1989-INA-278 (June 13, 1990), a change of employers requires a new application unless the alien is working in the exact same position, performing the same duties, in the same area of intended employment, and for the same wages.
In the present case, the Alien is clearly not working in the same area of intended employment, since the position has moved from Ohio to Illinois. Moreover, the wage offer for the job in Ohio was $30,000 per year (AF 284), while the salary in Illinois is $39,000 per year (AF 218). Accordingly, a substitution of employers is not acceptable. In view of the foregoing, we find that labor certification was properly denied.”
In other words, the boys made up the position and when their boy Caputlu was denied a position and green card, they made up another one, and another one, until he was – once and for all – denied. But in the interim, the boys did what they do best – they appealed the decision and carried out this feat of folly for over 4 years. And you can bet your first born that the taxpayers got stuck with the bill for the appeal process and the lawyers.
The decision in its entirely can be found below:
http://www.oalj.dol.gov/Decisions/ALJ/INA/2006/In_re_HORIZON_SCIENCE_ACAD_2006INA00046_%28MAR_08_2007%29_104152_CADEC_SD_files/css/In_re_HORIZON_SCIENCE_ACAD_2006INA00046_%28MAR_08_2007%29_104152_CADEC_SD.HTM
U.S. Department of Labor Board of Alien Labor Certification Appeals 800 K Street, NW, Suite 400-N Washington, DC 20001-8002 (202) 693-7300 (202) 693-7365 (FAX) Issue Date: 08 March 2007 BALCA Case No.: 2006-INA-00046 ETA Case No.: D-05014-29925
In the Matter of: HORIZON SCIENCE ACADEMY, Employer, on behalf of AYHAN CAPUTLU, Alien.
Appearance: Karen Denise Bradley, Esquire Dayton, Ohio For the Employer and the Alien Certifying Officer: Jenny Elser Dallas Backlog Elimination Center Before: Chapman, Wood and Vittone Administrative Law Judges
DECISION AND ORDER PER CURIAM. Horizon Science Academy (“Employer”) filed an application for labor certification on behalf of Ayhan Caputlu (“Alien”) pursuant to section 212(a)(5)(A) of the Immigration and Nationality Act, 8 U.S.C. §1182(a)(5)(A)(the "Act"), and Title 20, Part 656 of the Code of Federal Regulations (“C.F.R.”).1
The U.S. Department of Labor Certifying Officer 1. This application was filed prior to the effective date of the “PERM” regulations. See 69 Fed. Reg. 77326 (Dec. 27, 2004). Accordingly, the regulatory citations in this decision are to the 2004 edition of the Code of Federal Regulations published by the Government Printing Office on behalf of the Office of the Federal Register, National -2- (“CO”) denied the labor certification application. The Employer requested review pursuant to 20 C.F.R. §656.26.
STATEMENT OF THE CASE On July 14, 2003, the Employer, Horizon Science Academy, a not-for-profit State funded community school located in Columbus, Ohio, filed an application for labor certification to enable the Alien to fill the position of Mathematics Teacher, classified by the Job Service as Secondary School Teacher (AF 284). The stated requirements were a B.A. or B.S. degree in Mathematics, and a State of Ohio Teaching Certificate (AF 284). By letter, dated April 12, 2005, the Employer’s counsel requested that “Chicago Math & Science Academy” be substituted as the new employer (AF 270). The Employer’s counsel submitted a revised application, which stated that the newly identified employer is a Charter High School located in Chicago, Illinois. In addition, the revised application reflected newly stated job requirements. In addition to a B.A. degree in Mathematics, the new job requirements included one year of experience in the job offered, and a State of Illinois teacher's license (AF 272).2 Under cover letter dated October 17, 2005, the Employer’s counsel provided documentation which showed that Concept Schools, an Illinois non-profit corporation, located in Elk Grove Village, Illinois, had entered into management agreements with Chicago Math & Science Academy and Horizon Science Academy, which became effective on January 1, 2004 and September 1, 2004, respectively (AF 247-263). Based upon the foregoing, the Employer’s counsel requested that Concept Schools be substituted as the new employer. However, the Employer’s counsel also stated that if Concept Schools does not qualify under the regulations, Archives and Record Administration, 20 C.F.R. Part 656 (Revised on Apr. 1, 2004), unless otherwise noted. We base our decision on the record upon which the CO denied certification and Employer’s request for review, as contained in the appeal file (“AF”) and any written arguments. 20 C.F.R. §656.27(c). 2 There was also a notation of 1 year of experience in a “Related Occupation.” However, the related occupation was not specified (AF 272). -3- then, “we wish to retain this certification on behalf of Horizon Science Academy, Columbus on behalf of Mr. Ayhan Caputlu.” (AF 248).
In a Notice of Findings ("NOF") issued on December 21, 2005, the CO proposed to deny certification on the grounds, inter alia, that the Employer failed to establish that there is a bona fide, current, permanent, full-time job opportunity to which qualified U.S. workers can be referred (AF 241-246). The Employer filed its rebuttal on or about January 25, 2006 (AF 189- 210). The CO found the rebuttal unpersuasive and issued a Final Determination, dated February 1, 2006, denying certification (AF 186-188).
On February 17, 2006, the Employer filed a “Request for Review and Reconsideration of Employer’s Request for Substitution of Employer on a Case Recently Denied” (AF 163-185). On March 6, 2006, the CO denied the motion for reconsideration, noting that the issues raised therein were fully disposed of in the Final Determination (AF 162). Thereafter, the Employer filed its Request for Review (AF 1-161). Subsequently, the CO forwarded this matter to the Board of Alien Labor Certification Appeals, and the Appeal File was received on May 26, 2006.
Following the issuance of a “Notice of Docketing and Order Requiring Statement of Position or Legal Brief,” dated June 7, 2006, the Employer’s counsel resubmitted its Request for Review with accompanying documents.
3 DISCUSSION In the NOF, the CO cited 20 C.F.R. §656.20(c)(8), which states that the job opportunity must be clearly open to qualified U.S. workers. In addition, the CO cited the provisions of 20 C.F.R. §656.3, which defines the term “Employer” as a person, association, firm, or corporation which currently has a location within the United States to which U.S. workers may be referred for employment and which proposes to employ a full-time worker at a place within the United States or the authorized representative of such a person, association, firm, or corporation.
3 Although not the basis for our decision herein, we note that a copy of the Notice of Docketing was sent to the Alien at an address in Chicago, IL that corresponds to the Alien’s address as listed on amended ETA 750A forms (AF 80, 115). However, the U.S. postal service marked the response as follows: “Return to Sender, Not deliverable As Addressed, Unable to Forward.” -4- As outlined above, the original ETA 750A form listed the Employer as Horizon Science Academy, located in Columbus, Ohio. However, on April 12, 2005, the Employer’s counsel requested permission to substitute a new employer, namely Chicago Math & Science Academy, located in Chicago, Illinois. Subsequently, on October 17, 2005, the Employer’s counsel requested that Concepts School, located in Elk Grove Village, Illinois, be substituted as the new employer, but that, if it does not qualify, then Horizon Science Academy should retain its status as the Employer for the Alien. In view of the foregoing, the CO stated, in pertinent part: At this point there are three different employers that appear to be requesting certification for one alleged job opportunity. This brings into question the validity of the job opportunity being offered. A single Mathematics teacher job cannot be offered by three different employers; one in Columbus, Ohio; one in Chicago, Illinois and one in Elk Grove Village, Illinois. Furthermore, the job in question is either located in Columbus or it is located in Chicago or in Elk Grove Village. It can’t be changed based on convenience or likelihood of being certified. In addition, a check of the Chicago Math & Science Academy website, as recently as December 5, 2005, shows the alien, Ayhan Caputlu, already on the school’s staff as an 8th grade Math Teacher. This would appear to indicate that there is not a bona fide job opening at the Horizon Science Academy in Columbus and that the alien has filled an opening in the Chicago school. Because the job does not appear to be bona fide, the job cannot have been open to any qualified U.S. worker. This is a violation of Federal regulations.
The employer may rebut this finding by submitting documentation that the job in Columbus, Ohio does truly exist and is not currently filled. They must satisfactorily explain why, if the Columbus job remains open, they sought to simply abandon that job offer and substitute and [sic] offer from a different employer, located in a different state. (AF 243-244). Rather than submit the requested documentation, the Employer’s counsel stated, in rebuttal: -5- It should be noted that the job opportunity only exists at Chicago Math and Science and the job opportunity which previously existed at Horizon, Columbus in 2003 when the RIR application was filed, no longer exists. (AF 190).
In the Final Determination, the CO cited the above rebuttal language, and stated, in pertinent part: As a result of this admission, it is determined that the employer did not successfully remedy the deficiency or rebut the finding. The issue of a bona fide job opportunity with Horizon Science Academy in Columbus, Ohio remains unresolved. The application for Foreign Labor Certification is therefore denied. (AF 188).
We agree. As stated above, the job opportunity set forth in the initial ETA 750A form does not exist. Accordingly, there is no bona fide job opportunity available for a Mathematics Teacher at Horizon Science Academy of Columbus, Ohio. Therefore, the Employer’s counsel is seeking labor certification on behalf of the Alien, through a different employer (i.e., Chicago Math & Science Academy or Concept Schools) located in Illinois. As we held in International Contractors, Inc. and Technical Programming Services, Inc., 1989-INA-278 (June 13, 1990), a change of employers requires a new application unless the alien is working in the exact same position, performing the same duties, in the same area of intended employment, and for the same wages.
In the present case, the Alien is clearly not working in the same area of intended employment, since the position has moved from Ohio to Illinois. Moreover, the wage offer for the job in Ohio was $30,000 per year (AF 284), while the salary in Illinois is $39,000 per year (AF 218). Accordingly, a substitution of employers is not acceptable. In view of the foregoing, we find that labor certification was properly denied.
-6- ORDER The Certifying Officer's denial of labor certification is hereby AFFIRMED. Entered at the direction of the panel by: A Todd R. Smyth Secretary to the Board of Alien Labor Certification Appeals
NOTICE OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Order will become the final decision of the Secretary unless within 20 days from the date of service, a party petitions for review by the full Board of Alien Labor Certification Appeals. Such review is not favored, and ordinarily will not be granted except (1) when full Board consideration is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance. Petitions must be filed with: Chief Docket Clerk Office of Administrative Law Judges Board of Alien Labor Certification Appeals 800 K Street, N.W., Suite 400 Washington, D.C. 20001-8002 Copies of the petition must also be served on other parties, and should be accompanied by a written statement setting forth the date and manner of service. The petition shall specify the basis for requesting full Board review with supporting authority, if any, and shall not exceed five double-spaced typewritten pages. Responses, if any, shall be filed within ten days of the service of the petition, and shall not exceed five double-spaced typewritten pages. Upon the granting of the petition the Board may order briefs.
