BALCA En Banc Decision Summaries
ACTUAL MINIMUM REQUIREMENTS/ALIEN'S QUALIFICATIONS

NOTICE : These BALCA en decision summaries were created solely to assist BALCA staff in researching BALCA caselaw. The summaries are not part of the opinions and in no way constitute the official opinion of BALCA, the Office of Administrative Law Judges or the Department of Labor on any subject. The summaries should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any subject referred to therein. They are intended simply as a research tool, and are not intended as final legal authority and should not be cited or relied upon as such.

Alien gained qualifying experience with the employer, general rule

Actual minimum requirements: alien gained qualifying experience with the employer: "Where, as here, the required experience was gained by the Alien in jobs with the same Employer, the Employer must establish that the Alien gained that experience in jobs which were not similar to the job for which certification is sought. Kurt Salmon Associates, Inc., 87-INA-636 (October 27, 1988); Iwasaki Images of America, 87-INA-656 (May 11, 1988). Cf. Conde, Inc., 87-INA-598 (December 11, 1987). Failing that, the Employer must show that it is infeasible to hire workers with less qualifications than those now being required." [Editors' note: For later authority, see Delitizer Corp. of Newton, 1988-INA-482 (May 9, 1990) (en banc)]. BRENT-WOOD PRODUCTS, INC. , 1988-INA-259 (Feb. 28, 1989) (en banc)

Alien's prior experience

Actual minimum requirements: alien gained qualifying experience with the employer: employer required one year of experience in interior hotel design: alien's experience was with commercial building, but he had no specific experience with hotels prior to hire by the sponsoring employer. JAMES NORTHCUTT ASSOCIATES , 1988-INA-311 (Dec. 22, 1988) (en banc)

Actual minimum requirements: alien did not have qualifying experience when hired: evidence presented to establish alien's prior experience either not credible or not timely submitted. APARTMENT MANAGEMENT COMPANY/SOUTHERN DIVERSIFIED PROPERTIES, INC. , 1988-INA-215 (Feb. 2, 1989) (en banc)

Actual minimum requirements: alien gained qualifying experience with the employer: employer presented evidence that the alien had the requisite experience prior to being hired. NATIONAL INSTITUTE FOR PETROLEUM AND ENERGY RESEARCH , 1988-INA-535 (Mar. 17, 1989) (en banc)

Similar/dissimilar positions

Actual minimum requirements: alien gained qualifying experience with the employer: "[W]here the required experience was gained by the alien while working for the employer in jobs other than the job offered, the employer must demonstrate that the job in which the alien gained experience was not similar to the job offered for certification. Some relevant considerations on the issue of similarity include the relative job duties and supervisory responsibilities, job requirements, the positions of the jobs in the employer's job hierarchy, whether and by whom the position has been filled previously, whether the position is newly created, the prior employment practices of the Employer regarding the relative positions, the amount or percentage of time spent performing each job duty in each job, and the job salaries." (footnotes omitted). DELITIZER CORP. OF NEWTON , 1988-INA-482 (May 9, 1990) (en banc)

Actual minimum requirements: alien gained qualifying experience on the job: where alien was hired without experience as an assistant floral designer, employer advertised the job as for a floral designer with one year of experience, but employer failed to establish how the assistant floral designer and floral designer positions were different, the one year experience requirement was found to be an unduly restrictive job requirement. CREATIVE PLANTINGS , 1987-INA-633 (Nov. 20, 1987) (en banc)

Actual minimum requirements: alien gained qualifying experience with the employer: assistant cook promoted to cook: certification denied where apparently minor additional duties set forth for the cook position were not shown to constitute a significant dissimilarity in skill level and necessary training and experience between the two positions held by the Alien. VALLEY RANCH BARBECUE , 1988-INA-239 (July 23, 1990) (en banc)

Actual minimum requirements: alien gained qualifying experience with the employer: similar/dissimilar positions: employer failed to establish that assistant cook/speciality cook positions were sufficiently dissimilar to avoid the bar of section 656.21(b)(6) where the only distinction made in the record between the two positions is that the Assistant Cook did not actually do the final preparation and cooking of the meals. HIP WO INC. , 1989-INA-24 (July 23, 1990) (en banc)

Alien's qualifications for the position: whether experience as a bookkeeper is qualifying for a position as an accountant: the Board determined that the position "accountant" does not necessarily carry with it professional designations or educational requirements if an employer does not require the same, observing that employers do not use the term consistently. Thus, since the title given a job by an employer may not be determinative of the scope of duties and level of education and experience required, the Board held that the focus must extend to the underlying job duties for the position. In the instant case, the Board reviewed the Alien's job duties in his past experience and found that they were qualifying for the instant position despite the difference in the job titles. MAPLE DERBY, INC. , 1989-INA-185 (May 15, 1991) (en banc)

Actual minimum requirements: alien gained qualifying experience with the employer: dissimilarity of the jobs: BALCA panel found that the employer had established that the positions of Machine Operator Trainee and Machine Operator were sufficiently dissimilar to avoid the proscriptions of 20 C.F.R. §656.21(b)(6). The Certifying Officer petitioned for en banc review, which the Board granted on January 2, 1991. The Board declined to disturb the panel decision: "The list of factors for determining whether jobs are sufficiently dissimilar stated in Delitizer Corp. of Newton, 88-INA-482 (May 9, 1990) (en banc), clearly is not an exhaustive list. Further, that the position in which the Alien gained his experience involved training needed for the higher level position is relevant, but not determinative. Compare Duthie Electric Corp., 89-INA-182 (Nov. 30, 1989); Conde, Inc., 87-INA-598 (Dec. 11, 1987); and Eimco Processing Equipment Co., 88-INA-216 (Aug. 4, 1989). Had the Certifying Officer detailed why the training relationship prevented U.S. workers from applying for the job (such as a practice of Employer of only promoting from within) the panel's Decision might have been found to be incorrect. E & C PRECISION FABRICATING, INC. , 1989-INA-249 (Feb. 15, 1991) (en banc)

Different employers/locations

Actual minimum requirements: alien gained his experience with a Washington, DC restaurant location, but the application was filed by a Maryland corporation: an employer's showing that two restaurants are separate legal entities may not be sufficient to demonstrate that the they are separate employers for labor certification purposes (by implication, see concurring opinion): because CO did not state full legal standard until Final Determination, remand for new NOF. YOUNG CHOW RESTAURANT , 1987-INA-697 (Jan. 13, 1989) (en banc)

Actual minimum requirements: alien gained qualifying experience with the employer: experience cannot have been gained with the parent corporation of an international company: decision leaves open possibility that such experience would not be disqualifying if the employer could show that the two international companies had nothing in common except a corporate entity connection, such as a conglomerate or holding company relationship, but the Board found that this was not the factual background to the case before it. INMOS CORP. , 1988-INA-326 (June 1, 1990) (en banc)

Actual minimum requirements: similar positions with employer at other facilities: the Board found credible employer's evidence that it position of Hotel Credit Manager required greater experience at the hotel at which the alien would work because it was a more complex job, in number and nature, relative to other hotels (the instant hotel was a very large hotel specializing in conventions). LOEWS ANATOLE HOTEL , 1989-INA-230 (Apr. 26, 1991) (en banc)

Infeasibility to train

Actual minimum requirements: Alien gained required experience with the employer; infeasibility of hiring workers with less training or experience than that required by the employer's job offer must be documented: mere statement that it is now not feasible to train workers because of the growth developments and expansion efforts of the Employer in South Florida insufficient to supply required documentation. MMMATS, INC. , 1987-INA-540 (Nov. 24, 1987) (en banc)

Actual minimum requirements: alien gained experience with employer: infeasibility of training: employer's argument that it now needs three experienced cooks to handle the current volume of business, and that to deprive it of the service of the alien would adversely affect its business was insufficient to establish that its current economic circumstances demonstrate the infeasibility of hiring workers with less training or experience. ROQUE & ROBELO RESTAURANT & BAR , 1988-INA-148 (Mar. 1, 1989) (en banc)

Actual minimum requirements: alien gained qualifying experience with the employer: infeasibility of training: mere statement of infeasibility without further explanation or documentation is insufficient. INMOS CORP. , 1988-INA-326 (June 1, 1990) (en banc)

Actual minimum requirements: alien gained qualifying experience with the employer: infeasibility of training: "The burden is not on the C.O. to offer evidence, surveys, reports, etc., documenting that the Employer can offer the same training to a U.S. worker, as was offered to the Alien. To the contrary, the burden clearly rests with the Employer to document why it is no longer feasible to do so." Employer failed to establish infeasibility to train where it had only presented two letters from its personnel manager, which did not establish why its greatly expanded production volume combined with its substantially greater number of people performing the set-up and lead man job does not provide it with even greater flexibility now to train a worker with no experience. The Board also noted that the employer would have benefited by showing that in the intervening years since the original hiring of the Alien, during which many persons were hired for the same occupation, none were hired with less than the two years of experience now being required. AEP INDUSTRIES , 1988-INA-415 (Apr. 4, 1989) (en banc)

Actual minimum requirements: alien gained qualifying experience with the employer: infeasibility of training: burden is not on the CO to document that the Employer can offer the same training to a U.S. worker, as was offered to the alien. To the contrary, the burden clearly rests with the Employer to document why it is no longer feasible to do so: Employer failed to establish why its greatly expanded business and its extensive growth in manpower has not provided it with greater flexibility in training a new worker. SUPER SEAL MANUFACTURING CO. , 1988-INA-417 (Apr. 12, 1989) (en banc)

Actual minimum requirements: alien trained by employer: proof of infeasibility for purposes of section 656.21(b)(6) requires more than a showing of loss of efficiency. ADMIRAL GALLERY RESTAURANT , 1988-INA-65 (May 31, 1989) (en banc)

Alien's qualifications, generally: sufficiency of documentation

Actual minimum requirements: Alien's qualifications: failure to document alien's prior experience with independent evidence. JACKSON & TULL ENGINEERS , 1987-INA-547 (Nov. 24, 1987) (en banc)

Actual minimum requirements: alien not qualified. KEITHLEY INSTRUMENTS, INC. , 1987-INA-717 (Dec. 19, 1988) (en banc)

Alien's qualifications: physician: where an employer's application involves labor certification of a physician it must establish all of the requirements of 20 C.F.R. §656.20(d). NEWARK BETH ISRAEL MEDICAL CENTER , 1988-INA-87 (Dec. 23, 1988) (en banc)

Actual minimum requirements: employer's failure to respond to CO's request for documentation of alien's work experience. ROSIELLO DENTAL LABORATORY , 1988-INA-104 (Dec. 22, 1988) (en banc)

Bona fide job opportunity: meaning of "qualified" US worker where job is subject to a CBA giving preference to union members with seniority [note, in Canadian National Railway Co., 1990-INA-66 (Nov. 20, 1992) (en banc den recon), the Board refused to reconsider CO's argument that this ruling improperly authorized closed union shops because the motion was not timely filed]. CANADIAN NATIONAL RAILWAY CO. , 1990-INA-66 (Sept. 11, 1992) (en banc)

Tailoring to the Alien's qualifications

Actual minimum requirements: tailoring to alien's qualifications: unconvincing argument that President of a large enterprise would be involved in all aspects of operations. SNOWBIRD DEVELOPMENT CO. , 1987-INA-546 (Dec. 20, 1988) (en banc)

Tailoring the Alien's qualifications: alternative job requirements

Alien's qualifications for the job: alternative job requirements: the Board held that "where the alien does not meet the primary job requirements, but only potentially qualifies for the job because the employer has chosen to list alternative job requirements, the employer's alternative requirements are unlawfully tailored to the alien's qualifications, in violation of § 656.21(b)(5), unless the employer has indicated that applicants with any suitable combination of education, training or experience are acceptable." FRANCIS KELLOGG , 1994-INA-465 and 544, 1995-INA 68 (BALCA Feb. 2, 1998) (en banc)

State licensure requirements

Alien's qualifications for the job: state licensure requirements: employers sought to fill the positions of physician or physician's assistant in New York, where State law mandated licensure, which, in turn required a three year residency training for the physicians: the Board held that such State licensure requirements do not make an application violative of § 656.20(c)(7), which directs that "the job opportunity's terms, conditions and occupational environment are not contrary to Federal, State, or local law", imposed the New York State licensure requirement upon the aliens: however, under § 656.20(c)(4) an employer must document that it "will be able to place the alien on the payroll on or before the date of the alien's proposed entrance into the United States": the language of § 656.20(c)(4) is properly interpreted to mean that the job opportunity must be "current" in that the employer must place the alien on its payroll for the job offered upon his or her entry into the United States: an alien's lack of a required license to perform the job offered upon entry into the United States is not a per se bar to obtaining labor certification; however, the employer must document that such a license is obtainable within a proximate time of the alien's entry into the United States through the completion of a ministerial process. Under the facts of the cases at bar, the residency program for physicians was neither ministerial in nature nor was a three-year period proximate to the alien's entry into the United States. PERLA TATE, M.D. , 1990-INA-175, et al. (Dec. 4, 1992) (en banc)