UNITED STATES DEPARTMENT OF LABOR
BOARD OF ALIEN LABOR CERTIFICATION
APPEALS
Judges' Benchbook
Second Edition - May 1992
CHAPTER 27
SPECIAL HANDLING CASES
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TABLE OF CONTENTS
I. Occupations designated for special handling
-
A.
College or university teachers;
aliens represented to
have exceptional ability
in the performing arts
-
B.
Aliens working as nonimmigrant
sheepherders
II. Requirement that U.S. applicant be at least as qualified as the alien
III. "More qualified" standard
-
A.
Regulatory provision
-
B.
Requirement that alien be more
qualified than
each
U.S.
applicant
-
C.
Illustrative cases; alien not shown
to be more
qualified
IV. Option to seek certification under § 656.21
I. Occupations designated for special handling
Labor certification applications to employ an alien as a college or university teacher, or an alien represented to have exceptional ability in the performing arts, are designated for special handling. 20 C.F.R. § 656.21a(a). The special handling procedures provide for a more limited test of the labor market than the basic process at § 656.21, and require that U.S. applicants be at least as qualified as the alien for the position while under the basic process U.S. applicant need only be minimally qualified. See 56 Fed. Reg. 54,920, 55,923 (1991) (Interim Final Rule for regulations implementing the Immigration Act of 1990).
Where an alien is represented to have exceptional abilities in the performing arts, the employer must establish that the alien's work experience over the past twelve months did require, and the intended work in the United States will require, exceptional ability. See
§ 656.21a(a)(1)(iv).
B. Aliens working as nonimmigrant sheepherders
Labor certification applications to employ aliens who have been employed legally as nonimmigrant sheepherders in the United States for at least thirty-three of the preceding thirty-six months are designated under the regulations for special handling. 20 C.F.R. § 656.21a(b). Those applications are filed directly with the consular officer or a district office of INS and not with DOL. § 656.21a(b)(1).
II. Requirement that U.S. applicant be at least as qualified as the alien
Section 656.24(b)(2)(ii) provides that the CO 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, except that ,
- if the application involves a job opportunity as a college or university teacher, or for an alien whom the CO determines to be currently of exceptional ability the performing arts, the U.S. worker must be at least as qualified as the alien.
B. Application of test to elementary and secondary school teachers
In the case of the teaching profession, the regulations limit the special handling rules to college or university teachers. See 20 C.F.R. § 656.21a(a) and (a)(1)(iii); accord Matanuska Susitna Borough School , 87-INA-557 (Jan. 20, 1988), rev'd , Mastroyanis v. United States Dep't of Labor , No. A88-089 Civil (D.C. Ala. May 5, 1989) (position of elementary school teacher of gifted and talented students could not receive special handling).
In Mastroyanis v. United States Dep't of Labor , No. A88-089 Civil (D.C. Ala. May 5, 1989), however, it was held that § 656.24 is inconsistent with the plain language of the Immigration and Nationality Act, 8 U.S.C. §§ 1182(a)(14) and 1101(a)(32) to the extent that it limits application of the "equally qualified" standard to college and university teachers.
On October 23, 1991, the Employment and Training Administration published its interim final rule on regulations implementing changes made by the Immigration Act of 1990. 56 Fed. Reg. 54,920 (1991). Those interim rules retain the distinction between college and university teachers and elementary and secondary school teachers. Id. at 54,9423.
III. "More qualified" standard
College or university teachers seeking labor certification under the special handling provisions must be shown to have been selected for the job following a competitive recruitment and selection process through which the alien was found to be more qualified than any of the U.S. applicants. § 656.21a(a)(1)(iii).
B. Requirement that alien be more qualified than each U.S. applicant
Pursuant to § 656.21a(a)(1)(iii)(A)(2), the employer is required to set forth and document the specific, lawful, job-related reasons why the alien is more qualified than each U.S. applicant. Stanford University , 91-INA-40 (Mar. 10, 1992); New Jersey Institute of Technology , 87-INA-650 (Feb. 8, 1988).
In contrast, under the basic certification process, an alien's superior qualifications are not lawful grounds for rejecting a minimally qualified U.S. worker. See Chapter 23, IV, B (Rejection of U.S. Workers).
C. Illustrative cases; alien not shown to be more qualified
Aliens who are not shown to be more qualified than the U.S. applicant will be denied labor certification:
-
Where the alien did not meet the job requirement of a
Ph.D. degree for a job as a college professor, and most of
the other job applicants did possess the required degree,
the alien was not more qualified than the U.S. workers who
applied.
Utah State University
, 88-INA-115 (Apr. 5,
1989) (
en banc
).
- Employer failed to establish that the alien met the minimum job requirements for college professor and failed to establish that the alien was more qualified than the U.S. workers who applied for the job. Southern Connecticut State University , 90-INA-384 (Dec. 9, 1991).
IV. Option to seek certification under § 656.21
If an application for a college or university teacher or an alien represented to be of exceptional ability in the performing arts, or a sheepherder does not meet the requirements for an occupation designated for special handling under § 656.21a, the application may be filed under the basic certification process at § 656.21. § 656.21a(c).
The employer has the option of seeking labor certification for occupations designated for special handling under either § 656.21 or § 656.21a. Lewis University , 88-INA-75 (June 20, 1988).