BALCA En Banc Decision Summaries
REJECTION OF U.S. WORKERS

General principles

Particular grounds

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.

General principles

Rejection of U.S. workers: general principles: "This Board has held that where the job requirements stated on the application are not found to be unduly restrictive, an applicant who does not meet the requirements is not qualified for the job. In the Matter of Concurrent Computer Corp., 88-INA-76 (August 19, 1988); In the Matter of Hong Kong Royale Restaurant, 88-INA-60 (Oct. 17, 1988). The converse is also true. An applicant who meets those requirements is qualified for the job in terms of his or her education, training and experience. In the Matter of Fritz Garage, 88-INA-98 (August 17, 1988); In the Matter of Vanguard Jewelry Corp. 88-INA-273 (Sept. 20, 1988) In particular, a job applicant may not be rejected for failure to satisfy job requirements which were not listed on the application form. In the Matter of D.N.A., Inc., 88-INA-18 (May 9, 1988). Cases may arise where certain job requirements may be implied, and treated as if they had been stated in terms, on the theory that the requirements were not stated precisely because they are obvious and likely to be met by any one who would apply for the job. Proficiency in English language furnishes an example." VETERANS ADMINISTRATION MEDICAL CENTER , 1988-INA-70 (Dec. 21, 1988) (en banc)

Burden of proof

Rejection of U.S. workers: "the burden of proof, in the two-fold sense of burdens of production and persuasion, is on the employer...." CATHAY CARPET MILLS, INC. , 1987-INA-161 (Dec. 7, 1988) (en banc)

Sufficiency of evidence

Rejection of U.S. workers: An employer's bare assertion, in the absence of supporting reasons or evidence, that a U.S. applicant was not interested in the position is insufficient to prove rejection for a lawful job-related reason. CUSTOM CARD d/b/a CUSTOM PLASTIC CARD COMPANY , 1988-INA-212 (Mar. 16, 1989) (en banc)

Rejection of U.S. workers: vague and indefinite rationale for rejection: employer stated that it rejected an applicant for poor communication skills, but did not offer an explanation for that conclusion until the request for BALCA review: the explanation was untimely and, reviewing the information before the CO, the Board found that employer had failed to explain to the CO what it meant by "poor communication skills," or what relation poor communication skills bears to the performance of the job duties. HUGHES AIRCRAFT COMPANY , 1988-INA-325 (Mar. 21, 1989) (en banc)

Rejection of U.S. workers: specificity requirement: the employer's proffered "explanation" for the rejection of the two U.S. applicants "No import/export experience, only clerical." and "Documentation clerk exp." were found to be cursory notations that do not meet the "specificity" requirement of section 656.21(j)(1)(iv). U.S.A. MANUFACTURING, INC. , 1988-INA-373 (May 1, 1989) (en banc)

"As qualified" standard

Rejection of U.S. workers: US worker need not be as qualified as the alien, but only needs to meet the minimum requirements specified in the labor certification application. EXXON CHEMICAL COMPANY , 1987-INA-615 (July 18, 1988) (en banc)

Rejection of U.S. workers: although an employer understandably may want to employ a better qualified alien, US immigration law requires that jobs go to US workers who meet an employer's minimum qualifications. VETERANS ADMINISTRATION MEDICAL CENTER , 1988-INA-70 (Dec. 21, 1988) (en banc)

Rejection of U.S. workers: An employer may not reject a U.S. worker because the alien is more qualified. PAPERLERA DEL PLATA, INC. , 1990-INA-53 (Jan. 31, 1992) (en banc)

CO's obligation to state why employer's rejection of a U.S. worker was unlawful and to raise the issue timely

Rejection of U.S. workers: reversal where CO stated no ground and presented no documentation supporting summary rejections Employer's rebuttal that one applicant was not qualified and another applicant was not interested. NEW CONSUMER PRODUCTS , 1987-INA-706 (Oct. 18, 1988) (en banc)

Rejection of U.S. workers: Where employer listed special course work in its statement of job requirements and the CO did not contest those requirements as unduly restrictive until the Final Determination, the CO's raising of the issue was untimely (especially since the employer consistently stated these requirements throughout the application process). Thus, the employer lawfully rejected US workers who did not have the required coursework. The Board also rejected the CO's finding that the applicants could perform the job with a reasonable period of training because the CO provided no explanation for that conclusion. CONCURRENT COMPUTER CORP. , 1988-INA-76 (Aug. 19, 1988) (en banc)

Rejection of U.S. workers: the Board overruled the CO's finding that US workers were qualified where the CO failed to address the reasons given by the employer in both the recruitment report and the rebuttal, and had failed to take into consideration Employer's unchallenged educational and experience requirements. LEE & CHIU DESIGN GROUP , 1988-INA-328 (Dec. 20, 1988) (en banc)

U.S. applicant who fails to meet the employer's unchallenged job requirement may be rejected

Rejection of U.S. workers: applicant not qualified: "Where an employer's job requirements are not found to be unduly restrictive, a U.S. applicant who does not meet all of the stated job requirements is not qualified for the position, and may be lawfully rejected. In Re Adry-Mart, Inc., 88 INA 243 (Feb. 1, 1989). EUCLID CHEMICAL, CO. , 1988-INA-398 (May 4, 1989) (en banc)

Rejection of U.S. workers: "Since the U.S. applicant does not meet the Employer's stated and unchallenged job requirements, the Employer did not reject the U.S. applicant for other than lawful, job-related reasons...." Employer's rebuttal successfully established the difference between a field service engineer and a bench technician, the later of which the U.S. worker had. DATAGATE, INC. , 1987-INA-582 (Feb. 17, 1989) (en banc)

Rejection of U.S. workers: where the CO never questioned the validity of the minimum requirements for the job, the employer was entitled to rely on those minimum requirements as a yard stick to measure the qualifications of any applicant for the position: an employer is under no obligation to interview workers whose response to the advertisement fails to show that he or she meets those minimum requirements " in the absence of additional relevant information from other sources or a reasonable request by the Certifying Officer that the applicant be interviewed." [Editor's note: This ruling appears to have been limited by later Board authority to instances in which it is clear that the applicant is not qualified. Compare Gorchev & Gorchev Graphic Design , 1989-INA-118 (Nov. 29, 1990) (en banc) (where U.S. applicants appear to meet job qualifications, employer must investigate further).] ANONYMOUS MANAGEMENT , 1987-INA-672 (Sept. 8, 1988) (en banc)

Rejection of U.S. workers: where employer's job requirement of three years of experience as a head chef preparing Italian cuisine was unchallenged, the CO erred in finding that employer unlawfully rejected applicants who had more than three years of chef experience, but that experience was not directly related to Italian cuisine. Board took into consideration that the position was well-paid, and that employer offered specialized, gourmet food at relatively high prices, in finding that not just any chef experience would do. GENNARO'S RISTORANTE , 1987-INA-742 (Nov. 23, 1988) (en banc)

Rejection of U.S. workers: "If [a US applicant's] resume shows that she does not meet the minimum requirements for the job, Employer's rejection was lawful unless the resume is contradicted by additional relevant information from other sources or the C.O. reasonably requested that she be interviewed.": in the instant case, an unchallenged job requirement was experience teaching grades 4 through 6, but the US applicant's experience was teaching mentally retarded, disabled, or disadvantaged youths: although the CO maintained that a person with the applicant's background should at least have been interviewed, but the Board found that since the CO did not instruct employer in the NOF to interview the applicant the CO could not now rely on the lack of an interview as a ground for denial. [Editor's note: this ruling is probably inconsistent with the later ruling in Gorchev & Gorchev Graphic Design , 1989-INA-118 (Nov. 29, 1990) (en banc) (where U.S. applicants appear to meet job qualifications, employer must investigate further).] PROSPECT SCHOOL , 1988-INA-184 (Dec. 22, 1988) (en banc)

Rejection of U.S. workers: Where the employer's "minimum job requirements were not alleged to be unduly restrictive, and since the only available applicants do not have the retail warehouse experience listed as a special requirement by Employer, these applicants were properly rejected for this position." ADRY-MART, INC. , 1988-INA-243 (Feb. 1, 1989) (en banc)

Rejection of U.S. workers: CO reversed for reasons stated in Adry-Mart, Inc. , 1988 INA 243 (Feb. 1, 1989). ADRY-MART, INC. , 1988-INA-186 (Apr. 28, 1989) (en banc)

Rejection of U.S. workers: where the job requirements stated in the application have not been found to be unduly restrictive, an applicant who does not meet the requirements is not qualified for the job. Concurrent Computer Corp., 88-INA-76 (August 19, 1988). HARRIS CORPORATION , 1988-INA-293 (Jan. 5, 1989) (en banc)

Rejection of U.S. workers: where employer was a research and development organization for digital telecommunications and stated the requirement of comprehensive knowledge of digital telecommunication switching design, in line 15 of Form ETA 750A, it lawfully rejected US applicants whose experience was limited to analog systems. BELL NORTHERN RESEARCH , 1988-INA-296 (Apr. 5, 1989) (en banc)

Rejection of US worker: worker not qualified: employer lawfully rejected a US applicant where the applicant admitted that he did not have field experience as a cement finisher and verification of his references indicated that the applicant's experience was as a general laborer rather than a cement finisher. QUALITY CONCRETE COMPANY , 1988-INA-314 (Apr. 21, 1989) (en banc)

Rejection of U.S. workers: US workers who do not meet the employer's stated job requirements: authority of the CO to find the applicants' nonetheless qualified: in the instant case, the Employer's job requirements for its comptroller position were a MBA and 5 years of experience in the job offered or as an accountant: the CO did not challenge the requirements as unduly restrictive, but found that two applicants possessed education, training and/or experience "equivalent to the employer's requirements and/or to the DOT standard" therefore were considered qualified for the job. See § 656.24(b)(2)(ii). In a plurality decision, the Board "reaffirm[ed] what we stated in Concurrent Computer Corp., 88-INA-76 (Aug. 19, 1988) (en banc) and Adry-Mart, Inc., 88-INA-243 (Feb. 1, 1989) (en banc). We hold that, so long as an employer's job requirements are within the limits prescribed by section 656.21(b), the rejection of a U.S. worker who does not meet all those requirements is a rejection for a lawful, job-related reason, within the meaning of section 656.21(b)(7)." The plurality decision left for another day the scope of the CO's authority under section 656.24(b)(2)(ii). Several concurring and a dissenting opinion took different views of the case. BRONX MEDICAL AND DENTAL CLINIC , 1990-INA-479 (Oct. 30, 1992) (en banc)

U.S. applicant who meets the employer's job requirements may not be rejected as unqualified

Rejection of U.S. workers: job requirement of two years of experience as the manager of an import/export company met by applicant who had 14 years of experience " in all aspects of export operations, including extensive experience in marketing, sales, engineering, production, accounting and forecasting." QUALITY PRODUCTS OF AMERICA, INC. , 1987-INA-703 (Jan. 31, 1989) (en banc)

U.S. applicant whose resume indicates a reasonable prospect that he or she is qualified: employer must investigate further

REJECTION OF U.S. WORKERS: the Board affirms the principle stated in in Nancy, Ltd., 88-INA-358 (April 27, 1989) (en banc), rev. Nancy, Ltd. v. Dole, Case No. 89-2257-CIV-Scott 58 (April 27, 1989) (en banc), rev. on other grounds Nancy, Ltd. v. Dole, Case No. 89-2257-CIV-Scott (S.D. Fla. August 8, 1990), the effect that where a U.S. applicant's resume indicates that he meets the broad range of experience, education, and training required for the job, thus raising the reasonable prospect that he meets all of the Employer's stated actual requirements, the Employer has a duty to make a further inquiry, by interview or other means, into whether the applicant meets all of the actual requirements. The Board stated that "[w]hen an applicant's resume is silent on whether he or she meets a �major' requirement such as a college degree, an employer might reasonably assume that the applicant does not and, therefore, rejection without follow up may be proper. In the case of a subsidiary requirement with detailed specifications -- something a candidate might not indicate explicitly on his resume though he possesses it -- an employer carries the obligation under Nancy to inquire further whether the applicant meets all the detailed specifications." The Board overruled Anonymous Management, 87-INA-672 (Sept. 8, 1988) (en banc), to the extent that it would shift the burden from the employer to the U.S. applicant or the C.O., and would be contrary to application of the guideline set forth in Gorchev & Gorchev. GORCHEV & GORCHEV GRAPHIC DESIGN , 1989-INA-118 (Nov. 29, 1990) (en banc)

Rejection of U.S. workers: applicant who may meet the job qualifications: where a resume does not expressly state qualifications for all of an employer's job requirements, but lists such a broad range of experience that there is a reasonable possibility the applicant may meet the job requirements, it is incumbent on the Employer to further investigate Wheeler's qualifications, either through an interview or by other means. See GORCHEV & GORCHEV GRAPHIC DESIGN, 1989-INA-118 (Nov. 29, 1990) (en banc), affirming this aspect of Nancy, Ltd, noting that although the BALCA decision was revised in Nancy, Ltd. v. Dole, Case No. 89-2257-CIV-Scott (S.D. Fla. August 8, 1990), "the Court did not address the validity of the policy guideline stated by the Board in Nancy. Rather, the Court concluded that certain material findings of fact were internally inconsistent in the Nancy decision and, accordingly, that denial of certification should be reversed." NANCY, LTD. , 1988-INA-358 (Apr. 27, 1989) (en banc)

Rejection of U.S. workers: applying Gorchev & Gorchev, the Board held that where an applicant's resume is ambiguous as to whether it establishes qualifications for all of employer's job requirements, it is the Employer's duty to further investigate an applicant's credentials, by interview or other contact. CREATIVE CABINET & STORE FIXTURE, CO. , 1989-INA-181 (Jan. 24, 1990) (en banc)

Rejection of U.S. workers: duty of employer to further consider an applicant with apparent qualifications: the employer sought a Choral Director and the minimum stated requirements listed for the position were a Master's Degree for Teachers in Music Education, three years experience in the job offered and a Michigan State Teaching Certificate: one rejected applicant had a PhD in Music Education and a wide variety of experience spanning nearly twenty years: the Board held that the panel properly applied Gorchev & Gorchev Graphic Design, 89-INA-118 (Nov. 29, 1990) (en banc) to find that the employer should have further investigated the applicant's credentials. The employer had rejected the applicant without an interview because her resume did not show three years of experience as a Choral Director. The Board wrote: "A resume is just that: a summary; an introductory overview highlighting an applicant's background of qualifications. It is not a temple to be worshiped as the fount of all knowledge about an applicant's qualifications. Under the Gorchev & Gorchev standard, an employer truly seeking a qualified U.S. applicant would have contacted [an applicant such the one rejected here] and her references to inquire further about her qualifications." DEARBORN PUBLIC SCHOOLS , 1991-INA-222 (Dec. 7, 1993) (en banc)

Rejection of U.S. workers: interest in job: the employer determined that because the applicants stated career objectives on their resumes outside of the semiconductor field (employer's business), it followed that they did not possess interest in or the ability to perform the job duties: the Board found that employer's unilateral finding that the applicants where not interested was not sufficient grounds for rejecting the applicants: Employer never inquired of the applicants as to their interest in the job: the applicants indicated an interest in the job by applying for it and seeking an interview. Additionally, one applicant specifically expressed an interest in the instant job opportunity in his cover letter. NATIONAL SEMICONDUCTOR , 1988-INA-301 (Mar. 3, 1989) (en banc)

Availability of U.S. worker

Rejection of U.S. workers: availability of worker assessed as of time of recruitment: CO erred in assuming that a US worker who was scheduled for back surgery and therefore was unavailable at the time of recruitment would now be recovered and available: " this Board has repeatedly held that it is the status of job applicants at the time of recruitment that is controlling. See, e.g., ENY Textiles, Inc. , 87-INA-641 (Jan. 22, 1988)" ADRY-MART, INC. , 1988-INA-243 (Feb. 1, 1989) (en banc)

Currency of U.S. applicant's knowledge

Rejection of U.S. workers: current knowledge: the Board found that the employer had presented convincing evidenced that its requirement of "knowledge of semiconductor devices" encompassed the requirement of pertinent, reasonably current knowledge, such that an applicant whose experience with seminconductors was eight years in the past was lawfully rejected. The Board found that the employer had established that the applicant would require a lengthy period of retraining not required of applicants with reasonably recent semiconductor knowledge. TEXAS INSTRUMENTS, INC. , 1988-INA-413 (May 23, 1989) (en banc)

"Fortuitous cure" cases

Rejection of U.S. workers: fortuitous cure: An employer cannot, after reviewing the NOF, contact an applicant for the purpose of curing a defect in the recruitment of that applicant by showing that the applicant is no longer available for the job. Custom Card d/b/a/ Custom Plastic Card Co. , 1988-INA-212 (March 17, 1989) (en banc). CARRIAGE HOUSE REALTORS , 1987-INA-739 (Apr. 5, 1989) (en banc)

Rejection of U.S. workers: fortuitous cure: "[A]n employer's initial unlawful rejection of a U.S. worker as "unavailable" at the time of recruitment, is not cured a lack of response by that applicant to a post-NOF letter from the employer. The question of whether able, willing and qualified U.S. applicants are available for a particular job opportunity must, perforce, be determined as of the time of recruitment for it would be meaningless to show that such workers existed either before the job was open or after it had been filled." CUSTOM CARD d/b/a CUSTOM PLASTIC CARD COMPANY , 1988-INA-212 (Mar. 16, 1989) (en banc)

Rejection of U.S. workers: fortuitous cure: "We hold that where, as here, the Employer initially rejects a U.S. worker for an unlawful reason, upon the subsequent revival of interest in the position, and the Employer's later rejection on lawful grounds, the Employer must establish, in addition to the lawfulness of its second rejection, that the initial unlawful rejection as well as the delay generated by the initial rejection, did not contribute to the basis underlying such lawful rejection. In other words, the Employer must establish that neither the initial unlawful rejection, nor the delay in recontact, contributed in any way to the subsequent lawful rejection." (footnote omitted). Remand. KENNEDY RESEARCH, INC. , 1988-INA-350 (Dec. 21, 1989) (en banc)

Rejection of US worker: fortuitous cure: "If Wheeler was qualified for the job, and the Employer fails to show that he was either uninterested in the job or was unavailable at the time of recruitment, that he may no longer be interested in it cannot cure the Employer's rejection of Wheeler at the time of recruitment. See, e.g., In re Done-Rite, Inc., 88-INA-341 (Mar. 2, 1989) (en banc); In re ENY Textiles, Inc., 87-INA-641 (Jan. 22, 1988). * * * However, if Wheeler was not qualified for the job in the first place, then it is irrelevant if Employer cannot establish his unavailability. It is Employer's burden to establish that Wheeler was unqualified, and thus lawfully rejected. See §656.21(b)(7)." NANCY, LTD. , 1988-INA-358 (Apr. 27, 1989) (en banc) [But see Nancy, Ltd. v. Dole, Case No. 89-2257-CIV-Scott (S.D. Fla. August 8, 1990) (reversal based on the Board's factual findings, not the legal principles applied)].

Rejection of U.S. workers: belated efforts to contact US applicants: later lack of interest in the job does not cure earlier poor effort at contacting. SUNILAND MUSIC SHOPPES , 1988-INA-93 (Mar. 20, 1989) (en banc)

Rejection of U.S. workers: employer concedes in rebuttal that the applicants were qualified but raises issue of whether they are now available for the position: the Board quoted with approval the CO's find that "the key question is not whether the applicants are still available for the position five months after it was offered, but rather whether the applicants were initially lawfully rejected in the first place." DONE-RITE, INC. , 1988-INA-341 (Mar. 2, 1989) (en banc)

Lack of commitment of U.S. applicant to stay in the job

Rejection of U.S. workers: that a US worker would not commit beyond 6 months not ground, in itself, for rejection based on the conclusion that he was not interested in a permanent position: although the Board recognized that certain jobs may require lengthy periods of on-the-job training, or involve other factors peculiar to that business or industry such that a commitment of a minimum period of employment is not inherently unlawful, no such factors were present in this case. WORLD BAZAAR , 1988-INA-54 (June 14, 1989) (en banc)

Rejection of U.S. workers: an employer's "unfounded speculation that the applicant would have used the job as a stepping-stone while continuing his studies to pursue a business career is insufficient to establish the applicant's lack of availability." SWITCH, U.S.A., INC. , 1988-INA-164 (Apr. 19, 1989) (en banc)

Lack of experience in job duty

Rejection of U.S. workers: experience in certain duties: "Although an employer may contemplate that certain duties specified in the job description may require certain education and/or experience, those requirements must be specified by the employer; they will not be implied." UNIVERSAL ENERGY SYSTEMS, INC. , 1988-INA-5 (Jan. 4, 1989) (en banc)

Rejection of U.S. workers: job duty: employer could not rely on lack of experience in particular job duty to reject US workers where such duty was not listed in ETA Form 750A item 14 or 15. CHROMATOCHEM INC. , 1988-INA-8 (Jan. 12, 1989) (en banc)

Rejection of US workers/unduly restrictive job requirements: job duty: employer could not rely on lack of experience in particular job duty to reject US workers where such duty was not listed in ETA Form 750A item 14 or 15: one of the purposes of Items 14 and 15 "is to notify the C.O. of Employer's minimum requirements so that the C.O. may, if necessary, challenge the stated requirements as unduly restrictive or as not the actual minimum. See 20 C.F.R. §§656.21(b)(2) and 656.21(b)(6)." BELL COMMUNICATIONS RESEARCH, INC. , 1988-INA-26 (Dec. 22, 1988) (en banc)

Rejection of US workers/unduly restrictive job requirements: job duty: case arising in 5th Circuit remanded for reconsideration under Ashbrook-Simon-Hartley v. McLaughlin , 863 F.2d 410 (5th Cir. 1989).(job duties listed in block 13 of the ETA 750A must be considered by the CO as job requirements): [Editor's note: the Board has not extended Ashbrook outside the 5th Circuit]. OMEGA CONTRACTOR, INC. , 1988-INA-37 (Apr. 25, 1989) (en banc)

Rejection of US workers/unduly restrictive job requirements: job duty: case arising in 5th Circuit remanded for reconsideration under Ashbrook-Simon-Hartley v. McLaughlin , 863 F.2d 410 (5th Cir. 1989) (Whether the U.S. worker is capable of performing the job duties listed on the application must be addressed as a separate issue). MOTOROLA, INC. , 1988-INA-47 and 160 (Apr. 18, 1989) (en banc)

Rejection of US workers/unduly restrictive job requirements: job duty: "On appeal, the Alien's counsel insists that the job duties must be considered part of the minimum requirements of a job, so that if an employer documents that an applicant could not perform the requisite duties, the rejection of the applicant is based on a lawful, job-related ground. . . . We need only point out that the form used to apply for a labor certification clearly distinguishes between job duties and the requirements necessary to perform satisfactorily those duties." VETERANS ADMINISTRATION MEDICAL CENTER , 1988-INA-70 (Dec. 21, 1988) (en banc)

Rejection of US worker: job duties: Ashbrook-Simon-Hartley v. McLaughlin, 863 F.2d 410 (5th Cir. 1989) remand: whether applicant with four years of experience was able to perform the job duties listed by employer: the Board observed that the CO could inquire into whether the Alien was able to perform the duties when hired. RON HARTGROVE, INC. , 1988-INA-302 (May 31, 1989) (en banc)

Overqualified U.S. applicant

Rejection of U.S. workers: overqualified applicant: accountant who applied for a bookkeeper position: "The Employer also argues on appeal that as a matter of business judgment, it was justified in taking into consideration the likelihood of an accountant being unwilling to hold the job of a bookkeeper on a permanent basis. In In Re Southpoint Seafood Market , 87-INA-614 (Jan. 20, 1988), the Board rejected, as a lawful, job related reason, an employer's subjective assertion that an overqualified applicant would become quickly bored in an unchallenging job." METROPLEX DISTRIBUTORS , 1988-INA-249 (May 22, 1989) (en banc)

Relationship to competitor

Rejection of U.S. workers: applicant has a familial relationship to a competitor: the Board finds that a familial relationship with a competitor, standing alone, affords an insufficient basis to reject a U.S. worker: "Employer has not documented, through affidavits from prior employers or otherwise, that the security of its business would be at risk if the applicant is hired." PAPERLERA DEL PLATA, INC. , 1990-INA-53 (Jan. 31, 1992) (en banc)

Salary offer: job must actually be offered

Rejection of U.S. workers: low salary: an applicant's expression of concern about a low salary is not sufficient grounds for rejection of the applicant: rather, for the employer to lawfully reject a US applicant on this basis the position must be offered to the applicant and the applicant then decline the position based on the low salary offered. Martinez and Wright Engineering, 1988 INA 127 (Oct. 28, 1988). IMPELL CORPORATION , 1988-INA-298 (May 31, 1989) (en banc)

Subjective grounds for rejection

Rejection of U.S. workers: subjective reasons: "an Employer's subjective opinions concerning a U.S. applicant are not valid job-related reasons for rejection of the U.S. worker. See R. L. Fender, D.D.S., 87-INA-657 (Feb. 3, 1988); Southpoint Seafood Market, 87-INA-614 (Jan. 20, 1988). Here, the Employer relied on subjective considerations, such as its belief that [the US applicant] was a "paper man," (even though it admitted that [the US applicant's] resume "seemed perfect"), as well as feeling uncomfortable and not confident in him. Such reasons do not constitute lawful job-related reasons for rejection." EMPIRE MARBLE CORP. , 1988-INA-360 (Feb. 28, 1989) (en banc)

Rejection of U.S. workers: subjective grounds: in recruitment for a radio announcer the Employer stated that comparing the voices of the Alien and the U.S. workers, the Alien was better qualified based on tone and loudness. The Board found that this was not a lawful grounds for rejection of US workers, stating that "Employer did not allege, let alone establish, that the U.S. workers were unable to perform the job duties, based on voice tone and loudness." K SUPER KQ-1540 A.M. , 1988-INA-397 (Apr. 3, 1989) (en banc)

Rejection of U.S. workers: position of secretary who could take dictation: inability to understand employer's heavily accented English not sufficient ground to rejection US applicants: " The ability to understand the accented speech of a co-worker speaking english is, in our opinion, more in the nature of job orientation than a specific skill." CARRIAGE HOUSE REALTORS , 1987-INA-739 (Apr. 5, 1989) (en banc)

Rejection of U.S. workers: poor communication skills: where the CO talked with the US applicant and found no deficiency in his use of English, together with the circumstances of the applicant's education, employment history, time spent in the United States, the Board declined to disturb the CO's ruling that the employer had unlawfully rejected the applicant for lack of fluency in English. IMPELL CORPORATION , 1988-INA-298 (May 31, 1989) (en banc)

Tests and questionnaires

Rejection of U.S. workers: use of questionnaire to determine qualifications was not unlawful, even though alien was not required to file out a questionnaire, where employer was already familiar with the alien's qualifications: questionnaire was used to determine applicant's knowledge and was not a term or condition of employment and merely asked the same types of questions as would be asked in an interview. ALLIED TOWING SERVICE , 1988-INA-46 (Jan. 9, 1989) (en banc)

Unstated requirement

Rejection of U.S. workers: unstated requirement: Employer stated uncontested job requirement that employees "have the ability work within a team approach. . . and be skilled in group counseling skills and assessment." On this basis, rejected some applicants for lack of ability to confront addictive behavior. The Board found that this requirement was not subsumed in the counseling skills requirement -- that "if the ability to apply a specific counseling 'approach' or method is considered to be imperative for the job it must be listed as a special requirement in Item 15. Similarly, the employer wrongfully rejected applicants who did not have the right "personality" to market Employer's services and deliver public educational programs -- such not being a listed job requirement. PRESBYTERIAN HOSPITAL , 1988-INA-38 (Feb. 21, 1989) (en banc)

Rejection of U.S. workers: unstated requirement: employer sought an general manager: the Board found unconvincing employer's argument that it could reject applicants who only managed one store on the theory that a general manager in its organization manages at least three retail stores: if that was a requirement it should have been specified in the application. JUST CLOTHES, INC. , 1988-INA-252 (Mar. 21, 1989) (en banc)

Rejection of U.S. workers: undisclosed requirements: non-smoking: "[W]here a U.S. applicant engages in personal practices which, if performed on the job would expose the employee, or the employee's charge, or co-workers, or the employer or the employer's family or property to a risk that would not otherwise exist, the employer has an inherent right to prohibit such practice, provided that the job requirements do not unlawfully or unreasonably discriminate." "If an employer, as in this case, introduces a previously unstated requirement as a ground for rejection of a U.S. applicant, such is properly considered a job requirement that must be considered under the provisions of §656.21(b)(2)." Job requirements relating to education, skills, training or experience are so fundamental that they must be stated from the outset of the application process. In the instant case, the Board found that the employer did not unlawfully reject a US applicant who smoked where the job entailed a live-in housekeeper with child care responsibilities. Decision limited to its precise facts and is not a blanket endorsement of non-smoking requirements. JEFFREY SANDLER, M.D. , 1989-INA-316 (Feb. 11, 1991) (en banc)

Rejection of U.S. workers: undisclosed requirement: job requirement was four years experience as a foreign car mechanic, with duties of overhauling and repairing German cars: applicant who had experience in working on Mercedes, BMWs, Volkswagens and Volvos could not be lawfully rejected for lack of adequate experience on VWs: majority rejects dissent's argument that such a requirement was implicit. FRITZ GARAGE , 1988-INA-98 (Aug. 17, 1988) (en banc)

Verification of employment

Rejection of U.S. workers: verification of employment: "An Employer may lawfully reject U.S. workers who do not respond to reasonable requests for verification of employment history and educational credentials. In re Sunee Kim's Enterprises, 87 INA 713 (Jul. 22, 1988)." AL-GHAZALI SCHOOL , 1988-INA-347 (May 31, 1989) (en banc)