UNITED STATES DEPARTMENT OF LABOR
BOARD OF ALIEN LABOR CERTIFICATION
APPEALS
Judges' Benchbook
Second Edition - May 1992
CHAPTER 31
TERMS OF EMPLOYMENT
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TABLE OF CONTENTS
I. Regulatory requirement that employment terms and conditions are not contrary to law
II. Violation of a legal obligation incidental to employment
IV. Prohibition applies to employment terms, not to the alien's work status
I. Regulatory requirement that employment terms and conditions are not contrary to law
Pursuant to § 656.20(c)(7), the job offer must clearly show that the "employer's job opportunity's terms, conditions and occupational environment are not contrary to Federal, State, or local law."
II. Violation of a legal obligation incidental to employment
Noncompliance with state requirements or obligations arising by virtue of the employment relationship can establish grounds for denial. For example, the failure by the employer to document compliance with state unemployment insurance laws for the employed alien constitutes a ground for denial. East West Wonders, Inc. , 88-INA-51 (Jan. 16, 1992). In this case, the employer did not show it reported in-state employees to the state and had failed to submit copies of its quarterly unemployment insurance reports, as specifically requested by the CO.
Certification may be denied as contrary to law where the alien is legally ineligible to perform the job duties because he or she lacks a license required by law to perform the job duties. Thus, certification has been denied where it was not shown that the alien possessed a required engineering license,
- Peconal Inc. , 90-INA-108 (June 6, 1991).
an engineering or architectural license,
- B. Raeen Construction , 90-INA-352 (Mar. 27, 1991).
or a medical license.
-
Malihe Dardashti, M.D.
, 90-INA-110 (May 10,
1991).
- See also Chapter 4, V (Alien's Qualifications for the Job).
En banc review is pending in a number of cases in which state law requires physicians who have graduated from foreign medical schools also to complete a period of in-state residency before they can be licensed to work in private practice. In these cases, the Board will decide whether employment of the alien prior to meeting the residency requirement violates 20 C.F.R. § 656.20(c)(7). Perla Tate, M.D. , 90-INA-175, 225, 275, 331, 401, 583, 592, 593, 91-INA-4, 5, 7, 22, 82, 151 (Feb. 20, 1992) (Notice of en banc review).
IV. Prohibition applies to employment terms, not to the alien's work status
Although not reaching the question of whether the CO has the authority to implement provisions of the Immigration Reform and Control Act (IRCA), it was noted in International Contractors, Inc., and Technical Programming Services, Inc. , 89-INA-278 n.1 (June 13, 1990), that § 656.20(c)(7) prohibits employment terms that are contrary to federal or local law: situations where the job itself is illegal, not the prospective alien's status.
In International Contractors , the CO had denied certification, inter alia , on the ground that the employer's job offer was contrary to § 27A of IRCA, which prohibits the hiring, recruiting, or referral for a fee of unauthorized aliens. The employer was a contractor placement company for computer professionals. The authority of the CO to implement IRCA was not reached because the employer submitted evidence that the alien had a valid H-1 visa as a temporary worker.