UNITED STATES DEPARTMENT OF LABOR
BOARD OF ALIEN LABOR CERTIFICATION APPEALS
Judges' Benchbook
Second Edition - May 1992


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CHAPTER 23 Divisions I to IV K

REJECTION OF U.S. WORKERS

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TABLE OF CONTENTS

I. Regulatory requirement that U.S. applicants be rejected solely for lawful job-related reasons

II. Qualifications of U.S. applicants, generally

III. Qualification of U.S. worker who is able to perform job by virtue of education, training and experience

IV. Particular grounds for rejection

I. Regulatory requirement that U.S. applicants be rejected solely for lawful job-related reasons

Section 656.21(b)(7) provides that if U.S. workers have applied for the job opportunity, an employer must document that they were rejected solely for lawful job-related reasons.

Similarly, § 656.21(j)(1)(iv) requires the employer to provide the local office with a written report of all post-application recruitment, which explains "with specificity, the lawful job-related reasons for not hiring each U.S. worker interviewed."

II. Qualifications of U.S. applicants, generally

A. Applicant meets minimum requirements

In general, an applicant is considered qualified for a job if he or she meets the minimum requirements specified for that job in the labor certification application. United Parcel Service , 90-INA-90 (Mar. 28, 1991); Mancil -las International Ltd., 88-INA-321 (Feb. 7, 1990); Microbilt Corp. , 87-INA-635 (Jan. 12, 1988). An employer unlawfully rejects a U.S. worker who satisfies the minimum requirements specified on the ETA 750A and in the advertisement for the position. American Cafe , 90-INA-26 (Jan. 24, 1991); Cal-Tex Management Services , 88-INA-492 (Sept. 19, 1990); Richco Management , 88-INA-509 (Nov. 21, 1989); Dharma Friendship Foundation , 88-INA-29 (Apr. 7, 1988).

B. Applicant does not meet requirements

Where the employer's stated job requirements are not found to be unduly restrictive, an applicant who does not satisfy these requirements is not qualified.

  • Adry-Mart, Inc. , 88-INA-243 (Feb. 1, 1989) ( en banc ); New Consumer Products , 87-INA-706 (Oct. 18, 1988) ( en banc ); Concurrent Computer Corp. , 88-INA-76 (Aug. 19, 1988) ( en banc ); Cinecom International Films , 90-INA-41 (Apr. 8. 1991); City Public Service , 89-INA-337 (Mar. 27, 1991); St. Charles Borromeo School , 89-INA-262 (Mar. 18, 1991); Houston Music Institute, Inc. , 90-INA-450 (Feb. 21, 1991); Advanced Micro Devices, Inc. , 89-INA-306 (Dec. 12, 1990); Peta Software Services, Inc. , 89-INA-112 (Nov. 16, 1990); R.K. Plastics , 89-INA-129 (May 29, 1990); Intervoice, Inc. , 89-INA-128 (Apr. 9, 1990); Chatwal Hotels and Restaurants, Inc. , 88-INA-68 (Feb. 20, 1990); Integrated Management , 89-INA-4 (Dec. 18, 1989); Southeast Diesel Corp. , 89-INA-81 (Dec. 5, 1989); Far Hills Management Corp. , 89-INA-104 (Nov. 30, 1989); Paradise Designer Cushions , 89-INA-141 (Nov. 27, 1989); Euclid Chemical Co. , 88-INA-398 (May 4, 1989); Lebanese Arak Corp. , 87-INA-683 (Apr. 24, 1989); Quality Concrete Co. , 88-INA-314 (Apr. 21, 1989); Hong Kong Royale Restaurant , 88-INA-60 (Oct. 17, 1988); Annar Mangali , 88-INA-177 (Oct. 12, 1988); University of Utah , 87-INA-702 (May 9, 1988).

But see Chapter 13, III, B (Good Faith Efforts To Recruit), in regard to an employer's obligation to investigate further the qualifications of an applicant if he or she meets the job's major requirements.

III. Qualification of U.S. worker who is able to perform job by virtue of education, training and experience

A. Regulatory provision

Section 656.24(b)(2)(ii) provides that, with the exception of job opportunities for college or university teachers or aliens determined to be currently of exceptional ability in the performing arts:

  • The Certifying Officer shall consider a U.S. worker able and qualified for the job opportunity if the worker, by education, training, experience, or a combination thereof, is able to perform in the normally accepted manner the duties involved in the occupation as customarily performed by other U.S. workers similarly employed . . . .

B. Burden on CO to explain why applicant is qualified

Section 656.24(b)(2)(ii) does not provide a basis for the CO simply to dismiss the employer's stated job requirements in the absence of a determination that such requirements are unduly restrictive. Where the U.S. applicant clearly does not meet a stated job requirement, the burden shifts to the CO to explain adequately why the U.S. applicant is qualified through a combination of education, training or experience, despite his or her failure to meet the stated requirement. Houston Music Institute, Inc. , 90-INA-450 (Feb. 21, 1991). To the same effect : Mindcraft Software, Inc. , 90-INA-328 (Oct. 2, 1991) (applicant lacked experience in job offered, but had M.S. degree in Electrical Engineering, which CO found to be equivalent to two years of experience); Hina Textiles, Inc. , 90-INA-82 (July 15, 1991); External Resources International, Inc. , 90-INA-32 (Apr. 19, 1991); Shakti Engineering & Design Group , 89-INA-347 (Nov. 2, 1990).

Contra Chatwal Hotels and Restaurants, Inc. , 88-INA-68 (Feb. 20, 1990) (invocation of § 656.24(b)(2)(ii) is inappropriate where a U.S. applicant is able to perform the job duties, but nevertheless lacks the minimum requirements stated by the employer; applicants lacked requirement of two years of experience in the job offered).

See also Chapter 13, III, B (Good Faith Efforts to Recruit) in regard to the requirement that an employer investigate the credentials of an applicant who meets the major job requirements but whose resume does not state possession of all required qualifications. Placing this requirement on the employer clouds the burden of proof issue. See , e.g. , Taam Shabbos , 90-INA-87 (May 20, 1991), indicating that it is the employer's burden to consider whether an applicant's education, training and experience would enable that applicant to perform the job, despite not having one year of required experience in a subsidiary requirement (knowledge of Kashruth (kosher) rules).

C. Persuasiveness of CO's explanation

In External Resources International, Inc. , 90-INA-32 (Apr. 19, 1991), a panel affirmed a CO's explanation of why a U.S. worker's managerial experience could be considered equivalent to the employer's requirement of a B.A. in Management. The CO had detailed the applicant's extensive management experience indicating an ability to do the job. The panel also independently looked at the applicant's resume and at The Handbook for Analyzing Job , p. 209, fn. 1, U.S. Department of Labor, 1972 (in regard to Specific Vocational Preparation). The employer's submission of a professional evaluation of the applicant's resume to rebut the CO's finding was not persuasive because the evaluator stated that it was not in a position to evaluate work experience in the absences of evidence of academic studies, and did not state that the applicant would not be able to perform the job duties in the normally accepted manner or that the degree requirement was normally required in the industry.

D. Relationship of § 656.24(b)(2)(ii) to Ashbrook-Simon-Hartley

In Houston Music Institute, Inc. , 90-INA-450 (Feb. 21, 1991), the panel concluded that the language in Ashbrook-Simon-Hartley v. McLaughlin , 863 F.2d 410, 414-416 (5th Cir. 1989) (discussed in detail infra Division IV, J, 1), that the Department of Labor "cannot narrow its inquiry to the single question whether the U.S. worker applicant has a certain number of years of education, training, or experience" was inapposite to a § 656.24(b)(2)(ii) case because in Ashbrook the issue was whether a U.S. applicant who meets the stated job requirements is automatically qualified for the job (the court concluding that ability to perform the duties must be considered), whereas in 656.24(b)(2)(ii) cases the U.S. applicant does not meet the stated job requirement. The panel, in fact, concluded that "the symmetrical principle" to Ashbrook would lead to the conclusion that a U.S. worker who fails to meet the stated job requirements may, in any event, be qualified to perform the stated job duties.

But see Chatwal Hotels and Restaurants, Inc. , 88-INA-68 (Feb. 20, 1990) (panel concluded that the Ashbrook principle is valid only in favor the employer allowed to invoke § 656.24(b)(2)(ii) to reject a U.S. applicant who meets the requirements).

E. Employer's rebuttal to CO's finding that U.S. worker is qualified

The employer's contrary interpretation of a resume may not be sufficient to rebut the CO's conclusion that, based on the same resume, the U.S. worker was qualified for the job under § 656.24(b)(2)(ii). California Transport Enterprises, Inc. , 87-INA-710 (Sept. 20, 1988).

F. Reasonable period of on-the-job training

1. Applicant capable of performing duties with nominal training

Section 656.24(b)(2)(ii) applies where an applicant is competent to perform the job duties with a nominal period of on-the-job training even though he or she does not possess all of the stated qualifications. Mindcraft Software, Inc. , 90-INA-328 (Oct. 2, 1991). See also Union Express , 87-INA-694 (June 28, 1988) (once an applicant has met the minimum requirements, the employer must be willing to provide further on-the-job training).

2. Burden of proof on CO

The burden of proof is on the CO to show that the applicant is capable of performing the job either immediately or with a nominal period of on-the-job training. Mindcraft Software, Inc. , 90-INA-328 (Oct. 2, 1991). But see Taam Shabbos , 90-INA-87 (May 20, 1991) (the employer failed to consider whether an applicant's education, training and experience would have enabled him to learn and apply Kashruth (kosher) rules within a reasonable period of on-the-job training).

3. Illustrative cases

In the following cases, U.S. applicants who did not meet the employer's exact requirements or did not have exact experience in the job duties were qualified for the job where their resumes indicated that they could do the job with a reasonable period of on-the-job training:

  • Anderson-Mraz Design , 90-INA-142 (May 30, 1991) (applicants had extensive training and experience in graphic design, such that they would be able to perform the core duties, and all duties within a reasonable period of on-the-job training).

  • Taam Shabbos , 90-INA-87 (May 20, 1991) (the employer failed to consider whether an applicant's education, training and experience would have enabled him to learn and apply Kashruth (kosher) rules within a reasonable period of on-the-job training).

  • Culver City Nissan , 90-INA-47 (Oct. 23, 1990) (applicant qualified for job of mechanic where he had more than the three years of experience required but allegedly did not have specific experience in certain job duties, e.g. , replacing carburetors and generators or rebuilding cylinder blocks, because his training and experience indicated that he would be capable of performing these job duties within a reasonable period of on-the-job training. In addition, the employer had not established that such training would not be feasible).

  • Unisys (formerly Sperry, Inc.) , 87-INA-555 (Apr. 6, 1988) (applicant did not specifically list in his resume or application five years of experience with the computer systems listed in the ETA 750; nevertheless, the applicant's extensive computer background indicated that he would be capable of performing the job duties within a reasonable period of on-the-job training, such as that given to the alien).

  • International World of Travel, Inc. , 87-INA-568 (Dec. 8, 1987) (applicant for the position of assistant manager of a travel agency who had clerical and management experience, and college training in Library Science, was found to meet sufficiently the employer's requirements of six months' experience in clerical work and two years of college with a concentration in business or office administration, and could not be rejected based on lack of familiarity with specifics of the travel business such as using the airline computer system).

IV. Particular grounds for rejection

A. "Able" worker

An employer may not reject an applicant for the physical inability to perform without adequate documentation; mere suspicion of such shortcomings does not satisfy the employer's burden to document lawful job-related reasons for rejection. Hill-Fister Engineers, Inc. , 89-INA-114 (Feb. 6, 1990). See also Marnic Realty , 90-INA-48 (Nov. 21, 1990).

The employer in Franco Fashion Co., Inc. , 89-INA-73 (May 30, 1990), unlawfully rejected U.S. workers where it admitted an inability to identify two U.S. applicants who were rejected due to their alleged lack of physical ability to perform the job. Absent such identification, the CO is unable to verify the truthfulness of the employer's assertion, thus precluding effective evaluation of the propriety of the rejection.

See also H.C. LaMarche Ent., Inc. , 87-INA-607 (Oct. 27, 1988) (worker with poor references not an "able" worker).

B. Alien more qualified

An employer may not reject applicants because the alien is more qualified. K Super KQ 1540-A.M. , 88-INA-397 (Apr. 3, 1989) ( en banc ); Papalera del Plata , 90-INA-53 (Dec. 20, 1990), aff'd (Jan. 31, 1992) ( en banc ) (per curiam); Whitman, Requart & Associates Engineers , 89-INA-328 (Aug. 15, 1990). For example:

  • The employer unlawfully rejected a U.S. applicant who met the stated job requirements, but who was a young divorcee with no apparent experience with Alzheimer's patients, even though the employer preferred the alien's qualifications to the applicant's background. Morris Teitel , 88-INA-9 (Mar. 13, 1989) ( en banc ).

  • In Publix Supermarket , 88-INA-429 (Sept. 28, 1989), the employer sought to hire a pastry baker. The sole qualified U.S. worker was placed into a regular baker's job by the employer because it was "a job [for] which she is more suited," and because the alien allegedly was more qualified for the petitioned position. The panel held that this was an effective rejection of the applicant for the pastry baker position.

  • The employer unlawfully rejected a U.S. worker for inability to perform the job duties where personal interview of the applicant revealed that the applicant could perform all job duties, but allegedly lacked speed in one area. The employer failed to state what the acceptable speed was or how the applicant's speed was measured; the employer implicitly incorporated the alien's speed as the standard by which U.S. applicant was judged. Billings Jewelers, Inc. , 88-INA-474 (June 14, 1989).

C. Artistic ability

1. Appropriateness of artistic ability as a factor for assessment of applicants

It is unclear to what extent an employer can assess an applicant's artistic ability as a qualification for a job requiring artistic proficiency.

One panel has held that artistic proficiency must be quantified in terms of length of experience and training because a requirement of "artistic ability is "vague and subjective." Michael Graves Architect , 89-INA-131 (Feb. 21, 1990) (employer sought an architectural model maker). In contrast, in Medical Research & Illustrations, Inc. , 88-INA-35 (Feb. 14, 1990), the panel held that although not explicitly stated as a job requirement, obviously the ability to draw, illustrate and do calligraphy was required of applicants for a position as an "Illustrator." Accordingly, it was not unlawful for the employer to reject applicants who could not adequately perform these skills at their job interviews.

See also infra Division IV, S in regard to subjective considerations generally as a ground for rejection of U.S. applicants.

2. Vague or unsupported statement of deficiency in talent

Where the job offered requires artistic talent, an employer may not reject U.S. applicants based upon vague, undisclosed, or general deficiencies. In Anderson-Mraz Design , 90-INA-142 (May 30, 1991), for example, the employer's rejection of U.S. applicants based upon undisclosed and vague statements of purported deficiencies in graphic designing talents was improper. The panel noted that one of the applicants was determined by the employer to be "overall very strong" and that the applicant met or exceeded the minimum standards of ten of thirteen categories listed by the employer.

3. Position not requiring production of art works

Where the job duties did not require the employee to produce art works, an applicant's alleged lack of artistic ability was found in one case not to be a lawful ground for rejection of an otherwise qualified U.S. worker. In that case the employer unlawfully rejected U.S. workers for subjective reasons based on the employer's opinion that four applicants' art was amateurish; such reasons were unlawful as the only qualification set forth on the application was experience as an artist, and the job offered was "Artist Consultant" whose duties were to analyze artists' work to determine which would be represented by the business. Collectors International, Ltd. , 89-INA-133 (Dec. 14, 1989).

D. Availability of applicant

1. Rejection proper if lack of availability is documented

An employer may reject U.S. applicants if it documents that they are unavailable. Lebanese Arak Corp. , 87-INA-683 (Apr. 24, 1989). An employer unlawfully rejects a U.S. applicant, however, on the ground that the applicant is presently employed, and thus unavailable, where there is no evidence that the applicant was not interested in the position. Lakewood Manor Apartments , 88-INA-572 (Oct. 18, 1989). Moreover, an employer may not assume a U.S. worker is not interested in leaving his present job based on a phone conversation with another family member. Diceon Electronics, Inc. , 88-INA-253 (Apr. 18, 1989).

With regard to whether an applicant is available, an employer must document its reasonable efforts to contact qualified U.S. workers. Churchill Cabinet Co. , 87-INA-539 (Feb. 17, 1988); William W. Wright Stables , 87-INA-502 (Jan. 6, 1988). See also Chapter 13 (Good Faith Efforts to Recruit).

2. Failure to respond

An applicant who did not respond to interview letters was found in H.C. LaMarche Enterprises, Inc. , 87-INA-607 (Oct. 27, 1988), not to be an available worker. Similarly, an employer may lawfully reject a U.S. worker as unavailable where the worker was told to schedule a convenient date for an interview and the worker fails to respond. Metrodata Services , 88-INA-32 (Mar. 13, 1989). Likewise, an employer may lawfully reject U.S. applicants who fail to respond to certified mail, return receipt requested. Light Fire Iron Works , 90-INA-2 (Nov. 20, 1990), citing Bel Air Country Club , 88-INA-223 (Dec. 23, 1988).

On the other hand, an employer's predetermination that U.S. workers are not qualified, coupled with the fact that the employer's initial recruitment report fails to indicate a lack of contact by the applicants, militates against the employer's position that it contacted the applicants but failed to receive a response. Ronald S. Rusiecki , 90-INA-207 (May 31, 1991). oreover, an employer may not reject U.S. applicants as unavailable after waiting two months to contact the applicants in response to the referrals. Ronald S. Rusieki , 90-INA-207 (May 31, 1991); Lancaster Landscapes , 87-INA-632 (Jan. 12, 1988).

3. Applicant who intends also to work another job

In Production Tool Corp. of Wisconsin , 88-INA-210 (Nov. 9, 1989), the employer lawfully rejected a U.S. worker who intended to keep his other, higher paying full-time job while also working for the employer. The employer's concerns regarding the safety and productivity of an employee working sixteen hours a day around heavy machinery were reasonable, and were not refuted by the CO.

4. Conflicting hours of employment

Where the daytime work hours of a job are clearly stated in the ETA 750, the employer's uncorroborated assertion of an applicant's unavailability due to a conflict with those hours is inadequate to support a rejection of the applicant as the employer failed to provide any explanation for the conflict. Caldwell's Restaurant , 89-INA-245 (Mar. 6, 1991).

5. Medical incapacity

A U.S. worker who was unavailable at the time of recruitment due to impending surgery could not be found available for the job six months later, when the NOF was issued, because he should have recuperated. Adry-Mart, Inc. , 88-INA-243 (Feb. 1, 1989) ( en banc ).

E. Changed requirements or job description

An employer may not belatedly seek to add even more restrictive requirements and use them as a basis for rejecting a U.S. worker. Metal Cutting Corp. , 89-INA-90 (Jan. 8, 1990).

The employer unlawfully rejected a U.S. worker who met all of the stated requirements for the position of Specialty-Supervisory Chef where the employer stated that

the applicant's "experience and goals were more in line with a management position than a 'hands on' back of the house labor intensive individual." It was found that the employer was seeking a working cook, not a supervisory cook as stated in the application for labor certification. Collettis Restaurant, Inc. , 89-INA-138 (Jan. 3, 1990). Compare Mancillas International Ltd. , 88-INA-321 (Feb. 7, 1990), holding that where the application called for experience in manufacturing men's garments, which the U.S. applicant had, the employer's insistence that the experience be in manufacturing men's suits was misplaced.

See also infra Division IV, T in regard to the addition of requirements not stated in the application.

F. Communication skills

1. Poor communication skills, generally

Where an employer fails to explain what it means by poor communication skills, or what relation poor communication skills bear on the performance of the job duties, the employer rejects U.S. workers for other than lawful job-related reasons. Hughes Aircraft Co. , 88-INA-325 (Mar. 21, 1989).

2. Applicant's inability to speak English

The rejection of a U.S. applicant because he or she cannot speak English is lawful. Juanito N. Roque , 88-INA-4 (Apr. 5, 1988). The burden is on the employer, however, to document that the applicant is not able to speak English.

Hence, in Impell Corp. , 88-INA-298 (May 31, 1989), the CO properly placed the burden on the employer to demonstrate that the applicant was not qualified for the position where the CO believed that the applicant could comcommunicate in English, but the employer stated that the applicant could not communicate in English. Weighing the employer's statements in rebuttal, together with the applicant's education, employment history, time spent in the United States, and a conversation with the CO, the CO determined that the employer had not demonstrated that the applicant was unable to perform the stated job duties.

Where the CO found that employer had not documented that the U.S. applicant was deficient in English communication skills, but the Board found that employer had documented in accordance with Gencorp , 87-INA-659 (Jan. 13, 1988) ( en banc ), a remand was necessary for the further factfinding. Lighting Bazaar, Inc. , 88-INA-269 (Oct. 2, 1989).

3. Applicant's inability to understand the employer's accented speech

An employer may not reject an applicant because the applicant does not understand the employer's heavily-accented speech. Carriage House Realtors , 87-INA-739 (Apr. 5, 1989) ( en banc ).

G. Conflict of interest

An unsupported charge of "conflict of interest" is not a lawful job-related reason for rejecting a qualified U.S. applicant. Royal Peddler , 87-INA-679 (Feb. 5, 1988). Likewise, an employer's mere assertion of a conflict of interest arising from a U.S. applicant's employment for a competitor with whom he had a familial relationship does not constitute a lawful basis for rejection in light of the applicant's subsequent experience gained through an unrelated employer. Papalera del Plata, Inc. , 90-INA-53 (Dec. 20, 1990), aff'd (Jan. 31, 1992) (per curiam).

H. Diversion of U.S. worker/alien

In some cases, employers hire a U.S. applicant and still desire to hire the alien. In Engineering Technology, Inc. , 88-INA-508 (Feb. 8, 1990) (appeal filed in D.C. S.C. Feb. 8, 1990), the employer, faced with a qualified U.S. applicant, offered to him a "senior" position in its organization, thereby leaving the job offered open for the alien. The panel found this maneuver to be an unlawful rejection, holding that the diversion of available, qualified U.S. workers into other positions does not render them any less available or qualified for the job offered.

Likewise, in Western Bagel Baking Corp. , 90-INA-72 (May 22, 1991), an U.S. applicant's failure to respond to the employer's offer of an alternate job in retail sales did not cure the unlawful rejection for the advertised job and labor certification was properly denied.

The Board has also held that an employer may not hire a U.S. applicant for the job offered and then hire the alien for an identical position, at least where multiple positions are not been offered from the outset. In Precision Airparts Support Services, Inc. , 88-INA-508 (Feb. 8, 1990), the employer sought to certify the alien for an aircraft mechanic position. However, because the record did not show that multiple openings existed at the time of application, the employer had failed to prove that no U.S. workers were available for the original position.

See also American Middle East , 90-INA-346 (Sept. 17, 1991) (documentation from the outset indicated that there was only one position; employer hired five U.S. applicants and responded to the CO's finding of sufficient U.S. workers that it had a large contract and that it could not predict from day to day how many new positions would be added); Publix Supermarket , 88-INA-429 (Sept. 28, 1989) (sole U.S. applicant was placed in a regular baker's job because the alien was allegedly more qualified for the job for which labor certification was sought: pastry baker).

I. Experience

1. Applicant with fewer years of experience than required

An employer may reject a U.S. applicant with fewer years of experience than are required for the job offered. Lee Baron Fashions, Inc. , 89-INA-263 (April 22, 1991).

2. Applicant with only general or related experience

A U.S. applicant who only has general or related experience in the field of the position offered has been found not be qualified in several cases where an employer has stated an unchallenged requirement of more specific experience. For example, under the facts of the cases, it has been found that

restaurants may require experience in particular cuisine,

Consistent with Concurrent Computer Corp. , 88-INA-76 (Aug. 19, 1988) ( en banc ), an applicant with general experience as a head chef is not qualified for a position requiring specific experience as a head chef for Italian cuisine. Gennaro's Ristorante , 87-INA-742 (Nov. 23, 1988); see also El Carbon Restaurant , 88-INA-329 (June 6, 1989) (holding that applicants without experience in restaurant cooking of Peruvian food are not qualified for position of Peruvian Cuisine Specialty Chef).

a business may require experience in specific software applications,

An applicant with general experience as a computer programmer for commercial applications is not qualified for a position requiring more specific software engineering experience. Harris Corp. , 88-INA-293 (Jan. 5, 1989).

a health care facility may require experience in a specialized field,

An applicant with general experience in the health field is not qualified for the position of Coordination of Rehabilitation Services. Psychiatric Resource Center of Orlando 88-INA-359 (Mar. 13, 1989) ( en banc ).

an importer may require experience relating to its product,

Experience as an import buyer of knit sweaters, foodstuffs, promotional electronics, and various "soft goods" does not satisfy the valid job requirement of experience as an import buyer of textiles. ENY Textiles, Inc. , 87-INA-641 (Jan. 22, 1988).

or to exporting as opposed to mere parts and service management,

A U.S. worker was lawfully rejected for the position of Export Manger, where, despite the worker's having several of the necessary credentials for the position, he was shown not to be able to perform all of the job duties for the position as listed in paragraph 13 of the ETA 750A form; the U.S. worker's experience had been as a parts and service manager, which is not equivalent to experience as an export manager. Southeast Diesel Corp. , 89-INA-81 (Dec. 5, 1989).

and a business may distinguish experience gained as a technician from experience gained as an engineer.

Where the employer had shown that the U.S. applicant's experience was as a technician and not as a field service engineer, since the applicant did not meet the employer's stated and unchallenged job requirements, employer lawfully rejected the applicant. Datagate, Inc. , 87-INA-582 (Feb. 17, 1989).

The results in these cases, however, are closely tied to the particular facts and circumstances.

In contrast to the cases above, in the following cases U.S. applicants with only general or related experience were found to have been unlawfully rejected:

  • In Eastside Union School District , 90-INA-254 (June 21, 1991), an employer, which required classroom teaching experience for the job offered, unlawfully rejected U.S. workers because they had a background in special education. The panel noted that the U.S. applicants possessed teaching experience in both regular and special education classrooms and that the alien also had a background in special education.

  • Mancillas International Ltd. , 88-INA-321 (Feb. 7, 1990), holding that where the application called for experience in manufacturing men's garments, which the U.S. applicant had, the employer's insistence that the experience be in manufacturing men's suits was misplaced.

  • See also Marvelaire Mechanical Corp. , 89-INA-170 (Feb. 7, 1990) (employer rejected applicants for lacking the requirement of experience in HVAC system controls, but later agreed to remove that requirement; newly devised reasons for rejection unpersuasive and applicant satisfied DOL standards for proficiency in the job offered; rejection was unlawful).

  • See also supra Division III in regard to the CO's authority to find that an applicant is qualified based on his or her education, or experience despite lacking the exact qualifications required by the employer.

3. Applicant possessing only alternative experience

The employer may not reject U.S. applicants as not meeting a four-year experience requirement in the job offered as a Purchasing Agent where they possess four years of alternative experience in business management. Ernst Home & Nursery Center , 89-INA-156 (Apr. 18, 1990).

On the other hand, where the employer required three years of experience "in the job offered (president of a textiles chemicals manufacturer) or in the related occupation of anager," it was logical to conclude that, where the CO did not challenge the requirement of experience in the specific industry, the alternative requirement of three years as a manager was intended to be in the same field. Hunt Chemicals, Inc. , 90-INA-303 (July 22, 1991).

J. Job duties, generally

1. Ashbrook-Simon-Hartley ; DOL must consider the stated job duties

In Ashbrook-Simon-Hartley v. McLaughlin , 863 F.2d 410 (5th Cir. 1989), the court held that DOL cannot properly narrow its inquiry to the single question whether the U.S. worker applicant has a certain number of years of education, training, or experience. The statutory scheme and the administrative responsibility placed on DOL require it to consider all relevant information on the application, including the job duties listed by the employer.

In Ashbrook , the employer sought to fill the position of design engineer supervisor. Two years of experience in the job offered or four years of experience as a mechanical design engineer were required by the employer. A U.S. worker was rejected because, although he had four years of experience as a mechanical design engineer, the employer concluded that he was unable to perform the job duties. The administrative law judge held that since the U.S. worker met the stated minimum requirements, the employer did not reject him for lawful job-related reasons. The Circuit Court held that the ability to perform the job duties, wastewater engineering, must be taken into account by DOL.

The Board, when earlier faced with the identical question, had arrived at the opposite conclusion. In Bell Communications Research, Inc. , 88-INA-26 (Dec. 22, 1988) ( en banc ), it was held that an employer must state all requirements for the position on the application. In addition, if an applicant met the requirements as stated by the employer, he or she must be deemed qualified for the job.

The Board has acquiesced in Ashbrook in the Fifth Circuit. Thus, the Board has remanded cases arising in the Fifth Circuit for the CO to consider the job duties in determining whether the employer rejected the U.S. worker for a lawful, job-related reason. Teh-Tung Steamship (Houston), Inc. , 89-INA-9 (Apr. 17, 1990) ( en banc ); Ron Hartgrove, Inc. , 88-INA-302 (May 31, 1989) ( en banc ); Mr. Umphrey's , 88-INA-538 (Nov. 17, 1989); Motorola, Inc ., 88-INA-304 (Oct. 31, 1989). The Board has not squarely addressed the applicability of Ashbrook outside the Fifth Circuit.

See also supra Division III, D in regard to the rela-tionship between § 656.24(b)(2)(ii) and Ashbrook-Simon-Hartley .

2. Ability to perform main job duties

a. Employer's burden to provide detailed basis for its conclusion

In Quality Inn , 89-INA-273 (May 23, 1990), the panel held that an employer may reject an applicant for the inability to perform the main job duties, despite meeting

the minimum specified requirements. The panel indicated, however, that when an employer raises such a ground for rejection, it must provide "a more objective detailed basis of its conclusions." In this case, the applicant met the minimum requirements for the position of Cook-Broiler; however, the employer had unlawfully rejected the applicant for not knowing particular recipes or standard recipe measurements because it had failed to provide an objective detailed basis for its conclusions. See also Impell Corp. , 88-INA-298 (May 31, 1989) ( en banc ) (burden is on the employer to demonstrate on rebuttal that the applicant is unable to perform the stated job duties); Japan Budget Travel International , 90-INA-277 (Oct. 7, 1991).

The panel in Quality Inn cited Fritz's Garage , 88-INA-98 (Aug. 17, 1988) ( en banc ), for comparison. In Fritz's Garage the applicant was rejected for the position of foreign car mechanic -which included the job requirement of four years in the position offered and the job duty of repairing and overhauling German automobiles -because the applicant was not an expert in Volkswagen repair. The employer stated that its shop specialized in Volkswagens and only did incidental work on other German makes. The applicant's resume showed experience in repairing Mercedes, BMWs, Volkswagens, and Volvos; however, the employer maintained that the applicant was unable to answer most of the employer's questions on VW repair. The Board found that the applicant had been unlawfully rejected because expertise in VW repair was not listed as a requirement on the ETA 750A or in the advertisements; hence, it was an undisclosed requirement. The Board rejected a dissent that concluded that the job requirement was "implicit." The Board also stated that even assuming such a requirement was implicit, the CO would be affirmed because the basis for rejection was vague and unconvincing. The Board framed the employer's burden in this situation as making "a convincing showing that [the U.S. applicant] could not perform the job in an acceptable manner, as contemplated by § 656.24(b)(2)(ii) of the regulations."

Likewise, in Western Bagel Baking Corp. , 90-INA-72 (May 22, 1991), a panel held that an employer's rejection of a U.S. worker, based upon its subjective opinion that the applicant could not meet the physical demands of kneading dough for bagels, was not proper as it was undocumented.

See also Gould Semiconductors, Inc. , 87-INA-631 (Jan. 29, 1988), holding that the employer unlawfully rejected two U.S. applicants for non-job-related reasons when they satisfied the listed requirements based on their training and experience, but did not have knowledge of skills which the employer asserted were required to perform the duties assigned, but which had not been listed for the job in the application for labor certification. The employer had not required experience in either the job offered or a related occupation.

b. Illustrative cases

In a number of cases labor certification has been denied partially on the ground that the employer failed to show the applicant's inability to perform the job duties. For example:

  • An employer unlawfully rejected a U.S. worker where the applicant's resume indicated that he satisfied the employer's minimum qualifications, but the employer stated that the applicant failed to answer, to its satisfaction, questions concerning job duties. The employer stated that the applicant's answers were too simplistic to be taken seriously. It did not, however, further question the applicant to determine if he was merely attempting to be concise and could elabo-rate if necessary. In addition, there was no foundation in the record for the employer's conclusion that the applicant's resume was untrue. Entron Enterprises, Inc. , 89-INA-132 (Feb. 27, 1990).

  • In Future Furniture, Inc. , 89-INA-17 (Oct. 30, 1989), the CO's denial was affirmed, where, on its face, the U.S. applicant's resume supported the CO's determination that the applicant met the stated job requirements, and where the employer failed to submit convincing documentation that the U.S. applicant was unable to perform the stated job duties.

  • In Holloway Florist and Gift Shop , 89-INA-113 (Oct. 30, 1989), the employer was found to have unlawfully rejected four applicants because they lacked experience. Experience was not listed as a requirement and the employer failed to demonstrate that the applicants could not perform the job duties.

  • See also supra Division III, F for cases indicating that employer must consider whether an applicant could perform the stated job duties within a reasonable period of on-the-job training.

  • See also infra Division IV, J, 3 cases involving the ability to perform the basic job duties.

3. Incorporation of job duties into requirement of "experience in the job offered"

In defining the requirements for the job, experience in the job offered means experience performing the listed job duties. Integrated Software Systems, Inc. , 88-INA-200 (July 6, 1988). Job requirements not specified as such are deemed incorporated through the listed job duties and the requirement of experience in the "job offered." An employer, therefore, may reject U.S. applicants who lack experience in some of the key duties. Saritejdiam, Inc. , 89-INA-87 (Dec. 21, 1989) (certification denied, however, because the alien lacked those requirements).

For a discussion of the distinction between job duties and job requirements, see Bel Air Country Club , 88-INA-223 (Dec. 23, 1988) ( en banc ).

K. Knowledge of or familiarity with field

1. Subjective nature of requirement; strict scrutiny applied

A requirement characterized as "familiar with," although not impermissibly vague, can only be measured subjectively, and requires strict scrutiny. Baosu International, Inc. , 89-INA-38 (Oct. 30, 1989).

2. Applicant's possession of required knowledge

An employer unlawfully rejected a U.S. applicant where it required "familiarity" with garment, textile and warehouse operations and the applicant's resume indicated that he did have such familiarity. Baosu International, Inc. , 89-INA-38 (Oct. 30, 1989). In contrast, an employer lawfully rejected a U.S. applicant for the position of pastry chef where the applicant stated that he had never heard of pastries specified in the employer's application and requiring knowledge of these pastries was not challenged by the CO as unduly restrictive. The DuJon Corporation , 89-INA-121 (June 18, 1990).

3. Currency of knowledge

An employer may not reject an applicant for not possessing current knowledge of a professional specialty without adequate documentation; mere suspicion of such shortcomings does not satisfy an employer's burden to document lawful job-related reasons for rejection. Hill-Fister Engineers, Inc. , 89-INA-114 (Feb. 6, 1990) (engineering). An employer, however, may reject an applicant for not possessing current knowledge of a subject where affidavits show that the field is changing rapidly and that the applicant's knowledge is eight years old. Texas Instruments , 88-INA-413 (May 23, 1989) ( en banc ) (semiconductor product engineer).

CONTINUE TO CHAPTER 23 - DIVISIONS IV L TO V .

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