Xytex Corporation v. Schliemann
| Decision Date | 22 August 1974 |
| Docket Number | Civ. A. No. 74-M-85. |
| Citation | 382 F. Supp. 50 |
| Parties | XYTEX CORPORATION, a Delaware corporation, and Slobodan Perera, Plaintiffs, v. U. E. SCHLIEMANN, Associate Regional Manpower Administrator, United States Department of Labor, Defendant. |
| Court | U.S. District Court — District of Colorado |
George S. Carter, Denver, Colo., for plaintiffs.
James L. Treece, U. S. Atty., Denver, Colo., for defendant.
Slobodan Perera is a citizen of Yugoslavia present in the United States under a temporary student visa to study graduate studies in electrical engineering at the University of Colorado. He has held part-time employment with the plaintiff Xytex Corporation in Boulder, Colorado, since March, 1972 as a computer programmer.
Mr. Perera sought an immigrant visa for permanent residence in this country. To achieve that change in status he must obtain an alien employment certification from the Department of Labor. The statutory requirement is set out at 8 U.S.C. § 1182(a)(14). The certification to be made under the pertinent legislative language is:
"(A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place to which the alien is destined to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed . . . ."
Under applicable regulations the certification procedures of the Secretary of Labor are delegated to the Manpower Administration of the U. S. Department of Labor. 29 C.F.R. § 60.3(b).
Under date of September 19, 1973, Mr. Perera filed his application for alien employment certification setting forth his qualifications. On the same date Xytex Corporation filed with the Manpower Administration a Job Offer For Alien Employment. In that application the job offered was described as "Software Development Programmer" and the complete job description given was the following:
The job offer application also specified that the college degree required was an M.S. with electrical engineering and computer science as the major field of studies. Additionally the application indicated three years experience in related occupation of programming would be a requirement.
Pursuant to routine procedure, an inquiry was made of the Colorado Divison of Employment and on October 17, 1973, R. Kenneth Howe, employment officer, completed an action summary form indicating no applicants were available.
On November 7, 1973, a person employed by Manpower Administration talked by telephone with two teachers at the University of Colorado who apparently advised that the job offered by Xytex could be handled by a person having a B.S. in electrical engineering. This person then talked with an employee at the University of Colorado Engineers Placement Service who informed that persons were available with such degrees.
On December 26, 1973, counsel for Mr. Perera and Xytex Corporation wrote a letter to the Assistant Regional Director for Manpower, Region VIII for review of this denial of certification. Attached to that letter request were copies of letters describing Xytex Corporation's unsuccessful efforts to fill the job, including copies of resumes sent to Xytex by the University of Colorado. Some of those resumes were from persons who had not graduated from Colorado but expected to graduate in June, 1974. The position taken by Xytex in the request for review was that none of the persons available filled the minimum job requirements of an M.S. in electrical engineering and computer science with three years experience in programming.
On January 22, 1974, the Associate Regional Manpower Administrator wrote the following response to counsel's request for review:
"We have again reviewed all the facts pertaining to this request and must reaffirm our initial determination on the basis of the availability of U.S. citizens with suitable qualifications to perform the duties of the job described."
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