Judges' Benchbook: Alien Labor Certification

Office of Administrative Law Judges
United States Department of Labor

Second Edition - May 1992

CHAPTER 1 -- SUPPLEMENT

Supplement current through January 1997

ACTUAL MINIMUM REQUIREMENTS/
PRIOR HIRING PRACTICES/FEASIBILITY OF TRAINING

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Note: For labor certification applications filed on or after November 22, 1991, the effective date of the 1990 amendments to the Act, the regulations regarding actual minimum requirements have been recodified from 20 C.F.R. § 656.21(b)(6) to § 656.21(b)(5).

TABLE OF CONTENTS

Chapter 1 ACTUAL MINIMUM REQUIREMENTS/PRIOR HIRING PRACTICES/FEASIBILITY OF TRAINING

I. Regulatory requirements

  1. A. Regulatory language

  2. B. Purpose of regulation

  3. C. Conflicting interpretations of the regulation

II. Prong one: actual minimum requirements and prior hiring practices

  1. A. General documentation requirements

  2. B. Proof that alien was qualified when hired

III. Prong two: infeasibility of training

  1. A. Employer bears a heavy burden of proving infeasibility to train

  2. B. Procedural and evidentiary matters

IV. Appropriateness of requirement to the job

  1. A. Relationship between "actual minimum requirements" and "unduly restrictive requirements"

  2. B. Requirements insufficiently stringent

  3. C. Requirement of pre-employment test

  4. D. Showing that more stringent requirement is now necessary

I. Regulatory requirements

A. Regulatory language

no new cases

B. Purpose of regulation

Employers may not require stricter requirements for U.S. applicant than they will accept for aliens. ERF, 89-INA-105 (Feb. 14, 1990). International School of Dog Grooming , 93-INA-300 (Oct. 4, 1995).

An employer may not require more experience of U.S. workers than the alien possesses. Where U.S. workers were rejected for same lack of qualification that Alien also lacked, such rejection was unlawful. Capricorn Systems, Inc ., 93-INA-333 (August 30, 1995).

For the position of cook Employer required either 2 years experience in the job offered or 2 years experience in the position of domestic (with cooking experience). Alien stated that she worked for Employer as a cook for around two years and three months. Before that, Alien had worked for Employer as a housekeeper. The Board granted certification, reasoning that the CO should have but did not require Employer to explain why she was not treating U.S. workers as favorably as she treated Alien. See Rocco Parente , 92-INA-248 (Aug. 2, 1993). Gail Bratman , 94-INA-568 (Aug. 30, 1996).

An employer is not allowed to treat an alien more favorably than it would a U.S. worker. See ERD Inc., d/b/a Bayside Motor Inn , 89-INA-105 (Feb. 14, 1990). Van Nuys Auto Sales , 94-INA-386 (Oct. 25, 1995).

Employer applied for certification for the position of cook, domestic, live-in or live-out and required 2 years of experience in the job offered. The CO issued a NOF proposing to deny certification because, among other reasons, it appeared as if Employer hired Alien without the required experience. In rebuttal, Employer argued that Alien had experience in the job duties of cook, domestic as opposed to the job title. A letter from a previous employer attached to the rebuttal indicated 1 and one half years experience and the ETA 750A indicated additional experience which was based on Alien's own assertions. The CO denied certification and the Board affirmed. Citing ERF Inc., d/b/a Bayside Motor Inn , 89-INA-105 (Feb. 14, 1990), the Board noted that employers are not allowed to treat aliens more favorably by requiring more stringent qualifications from a U.S. worker than they require from aliens. The Board reasoned that, although Employer had provided supporting documentation indicating that Alien had experience in the duties of the position, this documentation amounted only to 1 and one half years of experience. Alien's assertions of more experience could not be considered because an alien's assertion without supporting documentation does not demonstrate that he or she meets the minimum requirements for the position. Mr. & Mrs. Marc Cohen , 95-INA-150 (Dec. 5, 1996).

C. Conflicting interpretations of the regulation 1. Majority interpretation

no new cases

2. Minority interpretation

no new cases

II. Prong one: actual minimum requirements and prior hiring practices

A. General documentation requirements

Employer failed to establish that the job was offered at its actual minimum requirements where the CO questioned whether Alien possessed the one year experience requirement prior to employment with Employer and Employer's rebuttal failed to address this point. Moreover, Employer's rebuttal evidence contending that it is unfeasible to train new employees given the expanding nature of its business is not sufficient to document infeasibility to train. Newcastle Fabrics Corp. , 92-INA-305 (May 4, 1994). See also Excel Limousine Corp. , 93-INA-233 (May 24, 1994) (denying certification where Employer, who required high a school diploma and 1 year experience, only documented that Alien possessed the requisite diploma); Vista Computing Services, Inc. , 93-INA-348 (Aug. 16, 1994) (finding that Employer failed to document that Alien possessed three year experience requirement for the position until after issuance of the FD); Hugh Browne and Edythe Heus Browne 93-INA- 350 (Jan. 20, 1995) (finding that Employer failed to document that Alien possessed minimum qualifications when hired); Farbell Electronics , 94-INA-59 (Apr. 28, 1995) (finding that Employer's rebuttal, indicating that Alien's prior experience included five years in an assistant position but only one year in the position offered, failed to document that Alien possessed the two years experience as required).

Labor certification denied where Employer failed to document that the Alien possessed required three months experience as private housekeeper. The panel concluded that Employer's documentation pertaining to Alien's previous experience as a commercial housekeeper was insufficient since job duties of private versus commercial housekeeper are not comparable. Celia and Jose Lua , 93-INA-304 (Jan. 26, 1995).

Labor certification denied where Employer required experience as a men's garment maker yet Alien's previous experience was as a women's garment maker. The panel stressed that while the duties of men and women garment maker might be similar, Employer specified the job duties for the position as men's garment maker and required three years experience in such. B J D Inc. , 93-INA-224 (Aug. 16, 1994).

Labor certification properly denied where Employer required five years experience in the job of accountant, the primary duties of which required preparation of U.S. tax forms, but Employer's documentation did not evidence that Alien possessed such experience prior to employment with the present Employer. A.V. Cortez Assoc. , 94-INA-130 (Mar. 7, 1995) (errata issued March 28, 1995, reissuing case under that date and noting that last paragraph on page 5 and the first paragraph on page 6 were erroneously omitted in the original decision).

Employer failed to establish that the job was offered at its actual minimum requirements where Employer stated that it "may be able" to "shorten or lengthen" the experience requirement and "waive" the language requirement; rather, Employer's unresponsive rebuttal indicated that the job requirements were used to "restrict eligibility to Alien already in its employ." Kent Corp. , 89-INA-240 (Feb. 28, 1992).

The fact that Alien gained the experience with Employer in a foreign country as opposed to the United States does not support a finding that the job has been listed with the actual minimum requirements. Mr. and Mrs. John Tobiczyk , 91-INA-101 (May 4, 1992). See also Foo Lim Moon, Inc. , 90-INA-317 (Dec. 11, 1992).

The job of systems analyst was not listed at its actual minimum requirements where the CO requested documentation that Employer's "other systems analysts had experience with rollback, rebuild, and reorganization utility programs" but Employer failed to provide such information. Softstar Computer Consultants, Inc. , 92-INA-275 (July 2, 1993).

Labor certification was properly denied where the panel noted that Alien gained his experience with a company related to the petitioning Employer. The ETA-750 of the petitioning Employer and letterhead of Employer where Alien gained his experience listed the same address and both companies were involved in the landscaping business. Rocco Parente , 92-INA-248 (Aug. 2, 1993).

Labor certification properly denied despite Employer's adequate showing that the currently available position is a distinct and dissimilar position from the job previously held. Employer required experience in the position, yet did not indicate where Alien gained such experience while working in the previous job. The panel noted that either Alien performed the job duties while employed in the previous job, indicating that the jobs are not actually distinct and dissimilar, or Alien was in fact hired without possessing the experience required of U.S. applicants. Express Software, Inc. , 93-INA-93 (Jan. 4, 1994). Datum Environmental, Inc. , 95-INA-86 (Oct. 2, 1996).

Holly's Bakery , 95-INA-20 (Aug. 22, 1996) (denying certification for the position of baker where Employer documented that Alien had 3 and one half years of the 4 required years of experience but did not substantiate its assertion that Alien worked as a baker in Chihuahua for 2 years which would have made him qualified for the position if substantiated).

An employer may not hire an alien with fewer qualifications than it is now requiring if it has not documented that it is not now feasible to hire a U.S. worker without the training or experience. See Capriccio's Restaurant , 90-INA-480 (Jan. 7, 1992). Van Nuys Auto Sales , 94-INA-386 (Oct. 25, 1995).

An employer cannot require U.S. workers applying for the job opportunity to have the same type of experience that the alien acquired only while working for the employer in a similar job. AEP Industries , 88-INA-415 (Apr. 4, 1989) (en banc); The CO questioned whether the job requirements were the minimum requirements for the position and instructed Employer to document that experience gained by Alien working for Employer was in a position sufficiently dissimilar from the position for which certification was being sought. Certification was denied because Employer failed to provide the requested documentation. P & P Contractors, Inc ., 94-INA-564 (Feb. 26, 1996).

Employer applied for certification for the position of machine technician/machine operator. The job duties included setting "up lathes and milling machines with CNC programming in order to operate..." machines, "[p]erform tool grinding,..." "test for hardness of metals; set up tooling, write test and analyze programs." Employer listed several special requirements, including a "[t]echnichal high school diploma specializing in machine operations and technology of machine operations...trigonometry and mechanical drafting, CNC programming...and metric system of weights and measures." The CO issued a NOF proposing to deny certification on the grounds that Alien had not been qualified in trigonometry, mechanical drafting and CNC. The CO instructed Employer to explain why it was infeasible to train a U.S. worker in these areas in the same way Alien was presumably trained. Employer stated in response that Alien received training in CNC programming by the company president. It stated that it was more advantageous to operate longer hours with highly trained employees than to train. It stated that when Alien was hired, someone who needed training also worked there and managed to "crash" a machine costing thousands of dollars. Employ failed to document the annual financial volume of the business even though the CO directed it to do so. The CO denied certification and the Board affirmed. Citing Capriccio's Restaurant , 90-INA-480 (Jan. 7, 1992), the Board noted that if employers hire aliens with lower qualifications than they are now requiring, they violate § 656.21(B)(5) if they fail to document that it is not now feasible to hire a U.S. worker without the training or experience. In the instant case the Board found that Employer's unsupported assertions that business is expanding failed to document infeasibility of training. Ridge Precision Products , 95-INA-149 (Nov. 22, 1996).

An employer violates § 656.21(b)(5) where it hires an alien with lower qualifications than it is now requiring of U.S. workers and it has not documented that it is not now feasible to hire a U.S. worker without that training or experience. See Capriccio's Restaurant , 90-INA-480 (Jan. 7, 1992). Employer required that U.S workers applying for the position of bakery supervisor have 2 years experience in the job offered. Alien had no supervisory experience. Zaro's Bread Basket , 94-INA-514 (Oct. 30, 1995).

B. Proof that alien was qualified when hired

Labor certification denied where alien received qualifying experience through on the job training with Employer. Employer did not establish infeasibility of similarly training U.S. worker. Estrada Dental Supply Co. , 94-INA-38 (Sep. 27, 1994).

Labor certification was properly denied where Alien did not possess all of the job requirements thus evidencing that the job was not listed at its actual minimum requirements. Valley Beth-Shalom School , 91-INA-382 (Dec. 28, 1992); Unlimited Express Service , (Feb. 14, 1994); Star Manufacturing, Inc. , 93-INA-49 (Feb. 28, 1994) (denying certification where Alien was hired without required six months experience); Nassau County Medical Center , 93- INA-36 (Feb. 28, 1994) (denying certification where Alien hired without possessing a required medical license); Mrs. Akhtar Rahnama , 93-INA-27 (Jan. 24, 1994) (denying certification where all of Alien's past experience in nursing while position is for child tutor); Ter-Mar Fashions , 92-INA-369 (Dec. 17, 1993) (denying certification where Alien was hired without having the required one month experience in the job); Gouda Management Co. , 91-INA-218 (Dec. 11, 1992). See also Laser Network , 93-INA-98 (Nov. 26, 1993) (finding that Employer failed to meet burden of demonstrating that Alien had experience in laser printer cartridges rather than simply laser printers) ; City Video, Inc. , 92-INA-180 (July 19, 1993) (denying certification where Employer offered no documentation to establish that Alien had 30 hours of college credit); Mah Industries , 92-INA-187 (Apr. 28, 1993) (denying certification where Alien lacked experience with printing presses and Employer rejected three U.S. workers on this ground); Newcastle Fabrics Corp. , 92-INA-175 (Apr. 19, 1993); LA Dye & Print Works, Inc. , 92-INA-201 (Apr. 14, 1993); Hedwig Cailoa , 91-INA-327 (Dec. 2, 1992).

Employer failed to document that Alien met the minimum requirement of three months of experience where " Employer's rebuttal evidence is ambiguous and clearly conflicts with the signed, statement of qualifications of Alien." In addition, the panel noted that Employer's rebuttal, if credited, "would establish only two months of experience in administering prescribed medication prior to the filing date, not the three months required." Anthony Bielenis , 92-INA-319 (Aug. 3, 1993).

An employer cannot reject a U.S. worker for lack of experience when the alien likewise lacked the experience when hired. T.I.E. The Inventory Exchange , 92-INA-398 (Sept. 20, 1993); E.T. Consultants, Inc. , 92-INA-71 (July 2, 1993) (denying certification where Employer conceded that Alien did not have the six months of required experience); Golf Technics Nevada , 91-INA-361 (Feb. 1, 1993); Anil Srivastava & Assoc. , 91-INA-238 (Dec. 11, 1992); Maylis Textile Corp. , 91-INA-145 (Dec. 3, 1992); Stanford University , 91-INA-193 (June 17, 1992); Space Research, Inc. , 91-INA-76 (May 4, 1992); Wilbur Smith Assoc. , 91-INA-29 (Mar. 31, 1992); The Iowa Packing Co. , 91-INA-88 (Mar. 27, 1992); Olympian Mortgage Group, Inc. , 91-INA-83 (Mar. 12, 1992); Stebbins Engineering & Manufacturing Co. , 92-INA-301 (Jan. 5, 1994) (denying certification where Alien was hired without required asters Degree).

Employer failed to state the actual minimum requirements for the job where it required a B.S. in electrical engineering and one year of experience in the job offered as an electrical engineer but the "Alien did not obtain her engineering degree until . . . shortly before she began working for the Employer...so any experience she has as an engineer was acquired while working for the Employer." Moreover, the panel noted that Alien's experience did not include some of the duties listed in the ETA-750. Bently Nevada Corp. , 91-INA-63 (Mar. 31, 1992).

Employers failed to state the actual minimum requirements for a live-out housekeeper where they required three months of experience and Alien had no experience before working for Employers. Mr. & Mrs. Galo Mardirossian, 91-INA-41 (Mar. 13, 1992).

An employer's conclusory statement that the alien is qualified is an insufficient response where the CO required documentation as to the alien's qualifications. Cal-Tech Construction Co. , 91-INA-148 (May 4, 1992).

Labor certification was properly denied where Employer conceded that Alien obtained the casting experience needed for the job offered of jewelry supervisor while working at his current job as a caster. New England Industries, Inc. , 91-INA-200 (Nov. 25, 1992).

Labor certification was properly denied where Employer's documents failed to establish that Alien was qualified for the job such that the job was not offered at its actual minimum requirements. Lights of America, Inc. , 91-INA-123 (Nov. 30, 1992).

Employer failed to document that Alien "met its stated minimum requirement of four years experience as a lead japanese auto mechanic" when hired where the ETA-750 B demonstrated no prior experience when Alien assumed his first job as a lead auto mechanic and "[t]he statement from Alien's former employer does nothing to confirm Alien's experience as lead Japanese auto mechanic." Asari Auto Repair , 92-INA-238 (Mar. 2, 1993).

Employer demonstrated that Alien was qualified when hired for the job of manufacturing test engineering manager which included a requirement of two years of college or "equivalent work experience." The criterion for "equivalent work experience", at 8 C.F.R. § 214.2(h)(3)(iii)(c)(5), directs that three years of work experience equals one year of college. The panel noted that Alien possessed ten years of experience and, thus, met the actual minimum requirements of the job. Capetronic USA Manufacturing, Inc. , 92-INA-18 (Apr. 12, 1993).

Employer demonstrated that Alien possessed minimum qualification of "electrical engineering background" despite the fact that Employer's translation of Alien's employment certificate does not detail the actual job duties he had performed. The panel concluded that the translation clearly asserts that Alien was previously employed in the job title of "electrical engineer" and that this is sufficient "on its face" to meet Employer's requirement. Sweda Corp. , 92-INA-190 (Oct. 13, 1993).

Labor certification granted where Employer demonstrated that Alien possessed the minimum qualifications for the position of "system analyst" despite the fact that Alien's prior experience was not gained with a firm engaged in "full services and installation of fire sprinkler systems", the business in which Employer is engaged. Employer documented Alien's past experience in the stated job duties and the panel found "nothing in this description of job duties which exclusively relates to the business of installation of fire sprinkler systems." The panel specifically concluded that the CO's interpretation of Integrated Software Systems, Inc. , 88-INA-200 (July 6, 1988), which would hold that experience in the job duties could only be gained through prior employment in a like business, was overly restrictive. Hammer Fire Protection , 92-INA-373 (Feb. 28, 1994).

Labor certification is properly denied where the alien does not possess all the job requirements , thus evidencing that the job was not listed at its actual minimum requirements. See Valley Beth-Shalom School , 91-INA-382 (Dec. 28, 1992). Van Nuys Auto Sales , 94-INA-386 (Oct. 25, 1995).

1. Experience with different employer a. Test for same or different employer

Labor certification denied where Employer owned two bakeries, Alien was trained at one and then transferred to job opportunity for which labor certification sought at second bakery. Alien's prior experience in the job not deemed sufficiently dissimilar. Sonia's Bakery, Inc. , 93-INA-351 (Oct. 11, 1994). See also Nunc, Inc. , 95-INA-73 (Oct. 31, 1996).

b. Procedural and evidentiary matters

i. CO must provide adequate notice of deficiency or corrective action

no new cases

ii. Employer must provide documentation reasonably requested by CO

no new cases

iii. Persuasiveness of evidence

no new cases

2. Experience in "sufficiently dissimilar" position

Under the first prong of § 656.21(b)(6), an employer may not require U.S. applicants to have the same type of experience that the alien acquired only while working for the employer in the same job. Accordingly, certification denied where Alien was trained by Employer in cost control and sales forecasting duties while in the job, yet U.S. applicants were rejected based on lack of such experience. The Cinnamon Bums, Inc. , 93-INA-99 (Jul. 6, 1994).

Employer failed to prove that the alien gained experience in a lesser, sufficiently dissimilar position where the ETA 750B, Part 15(a) listed exactly the same job duties before and after promotion, and where Employer provided no documentation of "differences in job duties, supervisory responsibilities, positions of the jobs within Employer's hierarchy, whether the position was newly created [or] the actual respective salaries of each job." Farbell Electronics , 94-INA-59 (Apr. 28, 1995). See also City of Danbury, Engineering Dept. , 95-INA-69 (Aug. 16, 1996); Nunc, Inc. , 95-INA-73 (Oct. 31, 1996).

a. Test for "sufficient dissimilarity"

Where it is clear that the alien gained his experience while working for the employer, employer must demonstrate that such experience was received in a job dissimilar to the one posted here, or test, is properly denied. See Delitzer , 88-INA-482 (May 9, 1990). Oleen & Assoc., Inc ., 94-INA-315 (June 16, 1995).

Some relevant factors to consider when determining whether jobs are sufficiently dissimilar include the following: (1) the relative job duties, supervisory responsibilities and job requirements of the position; (2) the position of the jobs within the employer' s hierarchy; (3) the employer's prior employment practices; (4) whether and by whom the higher position has been filled previously; whether the higher position has been filled previously; (5) whether the higher position is newly created; (6) the percentage of time spent performing each duty in each job; and (7) the respective salaries of each. See Delitzer Corp. of Newton , 88-INA-482 (May 9, 1990) (en banc). After the CO challenged whether Employer's requirements were the actual minimum requirements and requested documentation concerning these seven factors, Employer failed to do so. Labor certification was properly denied. P & P Contractors, Inc ., 94-INA-564 (Feb. 26, 1996).

i. Number and degree of differences

Labor certification granted where CO incorrectly relied on Vacco Industries , 87-INA-711, in denying certification. That case, which held that certification will not be granted where the alien acquired the qualifying experience with the employer, even if the experience was acquired in a dissimilar position with the employer, was explicitly overruled in Brent-Wood Products, Inc , 88-INA-259 (Feb. 28, 1989) (en banc) and Delitizer Corp. of Newton , 88-INA-482 (May 9, 1990) (en banc). The panel concluded that Alien's qualifying experience as a cosmetic container machine operator was "sufficiently dissimilar" because, unlike the currently available cosmetic container production supervisor position, it was non-supervisory and required no maintenance, oversight and quality assurance job duties. Cosmetic Specialties, Inc. , 93-INA-161 (Jun. 2, 1994); Cryopharm Corp , 93-INA-254 (Jul. 28, 1994). See also Singletary Auto Body , 94-INA-55 (Dec. 21, 1994) (finding that Employer adequately documented that painter helper is sufficiently dissimilar from auto body painter).

Employer established that the position offered as senior consultant was sufficiently dissimilar to the position held by Alien as associate consultant where the job duties were more advanced and complex, supervisory functions were part of the senior consultant job, the job offered legitimately exists in the firm hierarchy and was not created for Alien, and the salaries between the positions were different. Deloitte & Touche , 90-INA-493 (Feb. 7, 1992). See also Morgan Stanley & Co. , 91-INA-33 (Aug. 21, 1992); Bank of America , 91-INA-233 (Aug. 4, 1992).

Sufficient dissimilarity between salesman and the job offered as sales manager is established where the former merely involves selling fruits and vegetables, arranging displays, and advising customers whereas the job of sales manager involves managing the company, coordinating work schedules, budgeting, bookkeeping, coordinating sales promotions, and negotiating with buyers. Paradise Produce, Inc. , 90-INA-463 (Apr. 30, 1992).

Employer established sufficient dissimilarity where the petitioned position as design engineer would "entail substantially different job duties" than Alien's previous position as product engineer. Specifically, the panel noted that the product engineer tests semiconductor products whereas the design engineer develops and builds semiconductor products. Moreover, the product engineer position is entry-level and the design engineer position requires one year of experience, the salaries for the two positions are "significantly different", the positions are located in different departments, and the petitioned position is "1 of 3 newly created design engineer positions. . .." Altera Corp ., 90-INA-136 (June 19, 1992).

The job offered of buyer of military surplus was sufficiently dissimilar to that of sorter-pricer where the buyer "selects and buys used military clothing", grades and appraises the material to determine its value, and establishes resale prices whereas the sorter-pricer appraises and sorts items by condition, "makes minor repairs on damaged merchandise", and discards unsuitable items. A.A. Surplus Sales Co. , 91-INA-66 (Nov. 10, 1992).

Sufficient dissimilarity was established for a newly created position as senior online technical analyst where the panel noted the following:

The duties and functions of the job offered were first performed by a team of outside consultants. Economic considerations eventually resulted in the decision to create a permanent position within the company, to replace the consultants. The relative duties, requirements, and supervisory responsibilities are sufficiently dissimilar under the principles announced in Delitizer . . . taken with the history of the development of the job, to show that the Employer did not improperly train the Alien.

Western Savings & Loan Assoc. , 91-INA-164 (July 9, 1992).

Sufficient dissimilarity between the job offered of senior associate and Alien's former position as associate was established where the employer documented that the senior associate usually supervises three to five associates, the salaries of the two positions are "based upon separate wage scales", and "the senior associate is in charge of major projects, while the associate performs basic accounting without complex tasks and is subject to multiple layers of review." Coopers & Lybrand , 92-INA-240 (July 26, 1993). See also City of Danbury, Engineering Dept. , 95-INA-69 (Aug. 16, 1996).

ii. Nominal difference

Employer failed to establish that the job offered as computer analyst was not sufficiently dissimilar from the job for which Alien was originally hired merely because the petitioned position justified Alien's duties in the first position were identical to those of the job offered. Moreover, since Alien's only job experience was with Employer, he would not satisfy the one-year experience requirement even if the first position were considered a separate and distinct lesser position. Compfino, Inc ., 90-INA-474 (Feb. 25, 1992). See also Executive Protective Services, Inc. , 92-INA-392 (July 30, 1993); Bingo King Co. , 91-INA-247 (Aug. 11, 1992).

Employer failed to establish that the job offered of cook was sufficiently dissimilar from that of assistant cook where the assistant cook assists in the preparation and cooking of the food and the cook "apparently does most of the actual cooking." Indeed, the panel noted that Employer's distinction is eroded in that "occasionally during the slow period, [the assistant cook] prepared entrees and special dishes." Cornucopia 1515 , 92-INA-85 (May 15, 1992).

Employer failed to establish that the job offered of software engineer was sufficiently dissimilar to Alien's junior level position as systems analyst where it merely pointed to "increased responsibility of contributing to product design" and "drawing up specifications." Leading National Advertisers , 90-INA-340 (Oct. 31, 1992).

Employer conceded that Alien did not meet the minimum requirements prior to being hired by Employer and provided no evidence to support the contention that the prior position for which Alien was originally hired and the current position for which labor certification is sought are separate and distinct as required. American Silicon Products, Inc. , 91-INA-210 (Nov. 26, 1993).

Employer failed to establish that a "wheel welder" position was sufficiently dissimilar to Alien's prior journeyman wheel welder position. The panel found that aside from less responsibility, which is true in any craft journeyman position, there were no differences in the job duties of the positions. Armor Wheel & Accessories, Inc. , 92-INA-205 (Nov. 8, 1993). See also City of Danbury, Engineering Dept. , 95-INA-69 (Aug. 16, 1996).

iii. Different supervisory duties

no new cases

iv. Established hiring practice

no new cases

v. Assistant/trainee positions

no new cases

vi. Inconsistent arguments

no new cases

b. Employer must provide documentation reasonably requested by CO

no new cases

III. Prong two: infeasibility of training

To invoke the "non-feasibility" exception, the employer is required to document that it is not now feasible to hire workers with less training or experience than that required by the employer's offer. See MMMATS, Inc. , 87-INA-540 (Nov. 24, 1987). Employer asserted that for the position of assistant director of laboratories, it was not now feasible to hire someone with less than 2 years experience in the job offered because it could not afford the time or expense for a series of college courses in lab analyses and or training to overcome a speech accent or bad grammar. Certification was properly denied because Employer's argument was a bare statement of infeasibility. Particle Data Laboratories, Ltd ., 94-INA-503 (Feb. 12, 1996).

A. Employer bears a heavy burden of proving infeasibility to train

Employer failed to overcome its heavy burden of proving infeasibility of training based on its contention that the loss of two engineers, reducing its total staff to seven, created a "serious handicap" and "additional burden" on the employee who would train the new employee. Likewise, Employer's contention that it was experiencing "modest growth" does not meet the standard for a change in circumstances sufficient to establish the infeasibility of training a U.S. worker. Farbell Electronics , 94-INA-59 (Apr. 28, 1995).

Failure to offer any showing of infeasibility to train will result in a denial of labor certification. The Trianon Collection, Inc. , 92-INA-37 (Feb. 1, 1993).

Where alien has fewer qualifications than are being required of U.S. workers, employer has burden to show that U.S. worker with fewer qualifications is not also acceptable. 58th St. Rest. , 90-INA-58 (Feb. 21, 1991). Argument that executives are too busy to train new employers does not meet burden of showing infeasibility of training newer (U.S.) employee. Guardian Drug Company , 94-INA-536 (Jan 26, 1996).

Employers have a heavy burden in establishing why it is not now feasible to train a U.S. worker. See 58th Street Restaurant Corp. , 90-INA-58 (Feb. 21, 1991). Employer required that U.S. workers applying for the position of bakery supervisor have 2 years experience in the job offered even though Alien had no supervisory experience. Employer stated that he cannot train applicants because training would be disruptive, because business volume increased and because, in the past, new employees have either stayed too little time on the job or have proven unsatisfactory. Certification was properly denied because Employer failed to meet its burden of proof. Zaro's Bread Basket , 94-INA-514 (Oct. 30, 1995).

Employer applied for certification for the position of restaurant manager. Employer noted in Alien's statement of qualifications that Alien had worked for Employer as a manger and manager trainee from 1988 to 1992. The CO issued a NOF, directing Employer to document the infeasibility to train. In rebuttal Employer stated that, when Alien was hired, its business was expanding up to 10 restaurants. Now, however, Employer had only 3 businesses such that it could no longer train employees. Employer provided none of the requested documentation. The CO denied certification and the Board affirmed. Citing 58th Street Restaurant Corp ., 90-INA-58 (Feb. 21, 1991), the Board noted that employers bear a heavy burden of establishing why it is not now feasible to offer the same treatment to US applicants as it has to an alien. Although Employer had stated why it was infeasible to train U.S. applicants without providing the documentation, the Board reasoned, it had failed to either provide the requested documentation or offer evidence showing that downsizing had affected its ability to train workers. La Tablita, Inc. , 95-INA-121 (Jan. 27, 1997) (per curiam).

Employers must sufficiently document a change in circumstances to prove infeasibility. See Rogue and Robelo Restaurant and Bar , 88-INA-148 (Mar. 1, 1989) (en banc). Employer failed to demonstrate infeasibility to train where for the position of vegetable farmer, Employer argued that Aliens were assisting Employer in the development of a new technology. The Board reasoned that no evidence was offered of any changes in economic circumstances, why growing vegetables should be considered a new technology, and no evidence concerning the number of employees, their job duties, or any supervisory structure. The Board last argued that although some of the Aliens had farming experience, Employer failed to provide evidence that Aliens are experts in growing any particular types of exotic crops. Addison Hall Farm , 94-INA-466 (Mar. 28, 1996).

1. Change in economic circumstances

Where Alien, who was hired with no experience, is now the sole employee due to staff resignations, Employer has established infeasibility to train. Steel Tool & Engineering Co. , 94-INA-45 (Nov. 16, 1994).

Labor certification was properly denied where Employer concedes that Alien did not possess the requisite experience when hired. Employer's assertion that increase in volume of business now makes it infeasible to hire anyone with less experience than Employer requires was not sufficient to document infeasibility since increased training capability is presumed to accompany growth. Pueblo Airmotive, Inc. , 93-INA-505 (Mar. 8, 1995).

Labor certification was properly denied where Employer's assertion that it is infeasible to train a U.S. worker in the position was not adequately documented. Employer's contention that decline in business and resulting layoff of one employee makes it infeasible to train a U.S. worker in the position is not persuasive since such a decline and the resulting loss of one employee does not necessarily mean that remaining employees doing less work are any less able to train a U.S. worker as Alien was trained. Tony's Shoe Repair , 94-INA-195 (Mar. 14, 1995). See also Nunc, Inc. , 95-INA-73 (Oct. 31, 1996).

2. Increase in business or growth and expansion

Establishing infeasibility to train requires more than an assertion of growth in business or difficulty or inconvenience to the employer. Montran Corp. , 90-INA-300 (Jan. 8, 1992). See also Borrelli Bros. Inc. , 93- INA-62 (Jan. 25, 1994) (denying certification where Employer asserted increase in volume of business); Celini P.V.C. , 92-INA-233 (May 28, 1993) (denying certification where Employer merely asserted infeasibility to train because "business has improved"); Highland Plating Co. , 92-INA-264 (May 25, 1993) (denying certification where Employer "made only vague assertions regarding the 'financial setbacks' that it was experiencing and offered no specifics"); Newcastle Fabrics Corp. , 92-INA-175 (Apr. 19, 1993); C Town Supermarkets , 92-INA-26 (Mar. 2, 1993); Litton Aero Products , 91-INA-127 (Jan. 28, 1993) (denying certification where Employer made mere assertion of "advances in navigation systems technology" insufficient); Monterey Park Animal Hosp. , 90-INA-353 (Aug. 14, 1992); Software Consulting & Accounting Systems, Inc. , 91-INA-184 (July 24, 1992). Infeasibility to train is not established through mere assertions that the employer's business has increased. Compfino, Inc ., 90-INA-474 (Feb. 25, 1991). See also Star Manufacturing, Inc. , 93-INA-49 (Feb. 28, 1994); Bagels Unlimited, Inc. , 91-INA-271 (Sept. 2, 1992); Clirkat Donuts, Inc. , 91-INA-9 (Aug. 31, 1992); Green Kitchen Restaurant , 91-INA-259 (July 17, 1992) ("increased training capability is presumed to accompany growth").

3. Decrease in business

Employer applied for certification for the position of restaurant manager. Employer noted in Alien's statement of qualifications that Alien had worked for Employer as a manager and manager trainee from 1988 to 1992. The CO issued a NOF requesting Employer document its infeasibility to train. In rebuttal Employer stated that, when Alien was hired, its business was expanding up to 10 restaurants. Now, however, Employer had only 3 business. As a result, it was now unable to train employees. Employer provided none of the requested documentation. The CO denied certification and the Board affirmed. Citing Jackson & Tulls Engineers , 87-INA-547 (Nov. 24, 1987), the Board noted that an Employer's assertion that its business has declined to the point where it is now financially unable to train a new worker must be documented. Although Employer had stated why it was infeasible to train U.S. applicants without providing the documentation, the Board reasoned, it had failed to either provide the requested documentation or offer evidence showing that downsizing had affected its ability to train workers. La Tablita, Inc. , 95-INA-121 (Jan. 27, 1997) (per curiam).

4. Bare statement of infeasibility

Labor certification denied where Alien did not meet the experience requirement prior to hire. Employer's bare assertion that it is infeasible to train a new worker was not adequate to rebut that finding. Franco's Quality Printing Corp. , 93-INA-555 (Jul. 14, 1994).

Employer's reduction of personnel in Alien's department from 60 to 50 employees and its vague assertion that training a U.S. worker would have a disastrous effect on employer's already highly pressurized operations failed to establish infeasibility to train a U.S. worker. In addition, Employer's assertion that Alien was the only person who performs the described duties was not credible or supported by documentation. Citibank, N.A. , 94-INA-122 (Mar. 14 1995).

An employer's mere assertion of infeasibility to train or that the "experience requirement is common in the . . . industry" is insufficient. Merit-Day Meat Co. , 91-INA-161 (July 17, 1992)

A mere assertion that "both parents are employed" does not establish an infeasibility to train for a live-in domestic. Doree Kesselbenner , 91-INA-275 (Aug. 14, 1992).

An assertion that the employer has a personal attachment to the alien does not constitute sufficient grounds to find an infeasibility to train. Roni Dorman , 91-INA-328 (Oct. 1, 1992).

Employer's statement that it did not have "'the patience'" to train a U.S. worker for the job of live-in domestic was insufficient to establish infeasibility to train. Mark Engel, M.D. , 91-INA-273 (Jan. 6, 1993).

Infeasibility to train was not established where Employer made only "a general reference to reduction in capacity and corporate size taking place following the 1990 reorganization (and) no documentation was given to answer the CO's question why qualified U.S. workers could not be given the same job training and learning opportunities made available previously to the alien workers." Flextronics, Inc. , 91-INA-162, 195 (Feb. 4, 1993).

Infeasibility to train was not established where the "Employer's preference not to replace Alien [was] based upon its contention that a reliable trained substitute is not available . . .. " C Town Supermarkets , 92-INA-26 (Mar. 2, 1993).

Infeasibility to train was not established by Employer's vague assertion regarding a drop in its productivity. Uniplex Profiles, Inc. , 92-INA-39 (Jan. 4, 1994).

Infeasibility to train was not established by Employer's statement that "it would be unreasonable to expect Employer to 'train a man as inexperienced as [Alien].'" The Building Block , 92-INA-307 (Feb. 1, 1994).

Employer applied for certification for the position of restaurant manager. Employer noted in Alien's statement of qualifications that Alien had worked for Employer as a ranger and manager trainee from 1988 to 1992. The CO issued a NOF requesting Employer document its infeasibility to train. In rebuttal Employer stated that, when Alien was hired, its business was expanding up to 10 restaurants. Now, however, Employer had only 3 business. As a result, it was now unable to train employees. Employer provided none of the requested documentation. The CO denied certification and the Board affirmed. Citing Citibank, N.A. , 94-INA-122 (Mar. 14, 1995), the Board noted that a business's downsizing does not demonstrate per se an infeasibility to train U.S. workers. Although Employer had stated why it was infeasible to train U.S. applicants, the Board reasoned, it had failed to either provide the requested documentation or offer evidence showing that downsizing had affected its ability to train workers. La Tablita, Inc. , 95-INA-121 (Jan. 27, 1997) (per curiam).

A bare statement of infeasibility is not sufficient to establish that an employer cannot now hire workers with less experience and provide training. See MMMATS, Inc. , 87-INA-540 (Nov. 24, 1987). Employer asserted that for the position of assistant director of laboratories, it was not now feasible to hire someone with less than 2 years experience in the job offered because it could not afford the time or expense for a series of college courses in lab analyses and or training to overcome a speech accent or bad grammar. Certification was properly denied because Employer's argument was a bare statement of infeasibility. Particle Data Laboratories, Ltd ., 94-INA-503 (Feb. 12, 1996).

Infeasibility is not established by bare assertions of infeasibility or vague assertions regarding drops in productivity. See MMMats, Inc. , 87-INA-540 (Nov. 24, 1987) (en banc). Employer failed to demonstrate infeasibility to train where for the position of vegetable farmer, Employer argued that Aliens are assisting Employer in the development of a new technology. The Board reasoned that no evidence was offered of any changes in economic circumstances, why growing vegetables should be considered a new technology, and no evidence concerning the number of employees, their job duties, or any supervisory structure. The Board last argued that although some of the Aliens had farming experience, Employer failed to provide evidence that Aliens are experts in growing any particular types of exotic crops. Addison Hall Farm , 94-INA-466 (Mar. 28, 1996).

Employer applied for certification for the position of restaurant manager. Employer noted in Alien's statement of qualifications that Alien had worked for Employer as a manger and manager trainee from 1988 to 1992. The CO issued a NOF requesting Employer to document the infeasibility to train. In rebuttal Employer indicated that, when Alien was hired, its business was expanding up to 10 restaurants. Now, however, Employer had only 3 business. As a result, it was now unable to train employees. Employer provided none of the requested documentation. The CO denied certification and the Board affirmed. Citing MMMATS, Inc. , 87-INA-540 (Nov. 24, 1987) (en banc), the Board noted that a bare assertion of infeasibleness to train is inadequate to establish that an employer can no longer hire workers with less experience and provide training. Although Employer had stated why it was infeasible to train U.S. applicants, the Board reasoned, it had failed to provide either the requested documentation or offer evidence showing that downsizing had affected its ability to train workers. La Tablita, Inc. , 95-INA-121 (Jan. 27, 1997) (per curiam).

5. Showing of inefficiency

Establishing infeasibility to train requires more than a mere showing of inefficiency. La Barca Restaurant , 91-INA-15 (June 8, 1992).

Infeasibility to train was not established where, as noted by the panel, Employer merely asserted that "its software was more developed now than it had been when Alien was hired." Leading National Advertisers , 90-INA-340 (Oct. 31, 1992).

6. Present unavailability of alien's trainer

Infeasibility to train was established where the Employer conceded "that it trained Alien in its formerly accredited surgical residency program" but that it had "lost its ACGME accreditation" thus precluding it from now providing the same training to U.S. workers. Employer established that, by law, it may hire only licensed physicians which comprises "three years of post-graduate training in an ACGME-approved program". Lutheran Medical Center , 91-INA-302 (May 26, 1993).

7. Present unavailability of U.S. applicants

no new cases

B. Procedural and evidentiary matters 1. Burden of proof

An employer's burden of establishing infeasibility to train has been described as heavy. See 58'th Street Restaurant Corp. , 90-INA-58 (Feb. 21, 1991). Employer failed to demonstrate infeasibility to train where for the position of vegetable farmer, Employer argued that Aliens are assisting Employer in the development of a new technology. The Board reasoned that no evidence was offered of any changes in economic circumstances, why growing vegetables should be considered a new technology, and no evidence concerning the number of employees, their job duties, or any supervisory structure. The Board last argued that although some of Aliens had farming experience, Employer failed to provide evidence that Aliens are experts in growing any particular types of exotic crops. Addison Hall Farm , 94-INA-466 (Mar. 28, 1996).

2. Statements of counsel

no new cases

IV. Appropriateness of requirement to the job

Where employer's job description, in terms of educational requirements, describes one job category, as opposed to another, the CO will use the classification of the first-where the education requirements clearly match the job actually described. Then, where there is a qualified U.S. Worker who is eligible under the minimum job requirements (with the new job classification) the employer may not reject that applicant without further investigation. Kirpal K. Singh, M.D. , 94-INA-394 (July 27, 1995)

A. Relationship between "actual minimum requirements" and "unduly restrictive requirements"

no new cases

B. Requirements insufficiently stringent

The Winner's Circle , 94-INA-544 (Oct. 31, 1996) (en banc review pending) (reversing the CO and granting certification for the position of Italian specialty cook where the CO's sole basis of denial was that 2 years experience in the related occupation of salad maker was unduly restrictive because the specific vocational preparation for the position of salad maker was irrelevant).

Cine Video Corp. , 95-INA-50 (Sept. 25, 1996) (denying certification for the position of make-up artist which required 5 years of experience in the job offered where Alien's resume listed a number of work projects but offered no dates of employment a letter attested to Alien's work on 1 film yet included no dates, and where Employer's president asserted that Alien had 18 years of experience yet included no dates).

Broward Fire Equipment & Services, Inc. , 94-INA-167 (Sept. 15, 1995) (denying certification for the position of fire protection technical manager where Employer hired Alien as a service technician 1992 and trained him to perform the duties of the offered job with the exception of supervising other employees, where Alien attended fire college as a result of his employment with Employer and with the knowledge gained while so employed, and where Alien receives a class I fire extinguisher permit which was later required of the U.S. applicants while working for Employer).

Analysts International Corp. , 95-INA-62 (Dec. 23, 1996) (denying certification for the position of software consultant where Employer required a B.S. in computer science or electrical engineering, where Alien had a B.S. in electronics and computer technology but where Employer failed to include the words "or equivalent" after its degree requirement).

See also Nunc, Inc. , 95-INA-73 (Oct. 31, 1996): Datum Environmental, Inc. , 95-INA-86 (Oct. 2, 1996).

Holly's Bakery , 95-INA-20 (Aug. 22, 1996) (denying certification for the position of baker where Employer documented that the Alien had 3 years of the 4 required years of experience but did not substantiate its assertion that Alien worked as a baker in Chihuahua for 2 years which would have made him qualified for the position if substantiated).

The alternative requirement of a bachelor's degree in business administration in accounting is related to the job of bookkeeper, and is not a basis for finding the job requirement to be unduly restrictive when it is listed as an alternative requirement. See ERF d/b/a Bayside Motor Inn , 89-INA-105 (Feb. 14, 1990). Broadway Hats and Caps, Inc ., 94-INA-460 (Feb. 26, 1996).

There is no regulatory support for finding that work requirements that were not sufficiently stringent did not contain the actual minimum requirements and were unduly restrictive under § 656.21(b)(2) and (b)(6). The Kroenke Group , 90-INA-318 (July 12, 1991). The Board reversed the determination that the requirement was unduly restrictive because 4 years of college is considered the equivalent of 2 years of experience, because even though the 4 year alternative mat be tailored to Alien, it nonetheless broadens the pool of available applicants and because the alternative requirement was related to position at issue. Broadway Hats and Caps, Inc ., 94-INA-460 (Feb. 26, 1996).

Employer applied for certification for the position of machine technician/machine operator. The job duties included setting "up lathes and milling machines with CNC programming in order to operate..." machines, "[p]erform tool grinding,..." "test for hardness of metals; set up tooling, write test and analyze programs." The Employer listed several special requirements, including a "[t]echnichal high school diploma specializing in machine operations and technology of machine operations...trigonometry and mechanical drafting, CNC programming...and metric system of weights and measures." The CO denied certification on the grounds that Alien had received training unavailable to U.S. applicants. The Board affirmed. Citing ERF Inc., d/b/a Bayside Motor Inn , 89-INA-105 (Feb. 14, 1990), the Board noted that employers are prohibited from requiring more stringent qualifications of a U.S. worker than it requires of an alien, thus treating an alien more favorably than a U.S. worker. Here, the Board reasoned that the Alien had no CNC experience. In addition, the Board noted that Alien provided no documentation that Alien had taken trigonometry and mechanical drafting. Ridge Precision Products , 95-INA-149 (Nov. 22, 1996).

C. Requirement of pre-employment test

Labor certification was properly denied where Employer required U.S. applicants to take a "company test" and one U.S. applicant was rejected in part for failing test. In the NOF the CO specified that Employer should submit specific information, such as whether the test was required of the alien, in order to determine its legality. Employer's failure to address the validity of the test was sufficient basis to deny certification. Excel Limousine Corp. , 93-INA-203 (May 24, 1994).

American Way Importing Corp. , 95-INA-22 (May 23, 1996) (denying certification for the position of accountant where there was no proof that Alien had passed an accounting test, something that Employer required from all applicants, and where Employer stated that she had kept Alien's test papers because they were of "no importance at the time").

D. Showing that more stringent requirement is now necessary

no new cases