Judges' Benchbook: Alien Labor Certification

Office of Administrative Law Judges
United States Department of Labor

Second Edition - May 1992

CHAPTER 10 -- SUPPLEMENT

Supplement current through January 1997

DICTIONARY OF OCCUPATIONAL TITLES/SPECIFIC VOCATIONAL PREPARATION

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TABLE OF CONTENTS

I. The Dictionary of Occupational Titles

II. Specific vocational preparation

I. The Dictionary of Occupational Titles

A. Overview

no new cases

B. Classifying job duties under the DOT

Where job duties actually reflect one job description, rather than another, then the first will be considered the actual job position, and an employer cannot require experience that makes the erroneous job listing, but not the true job position. Richard Lum , 94-INA-219 (June 27, 1995).

Where an employer's description of a job is most closely associated with another DOT title, the CO properly identified that job title as the true job in question. Where the employer has been repeatedly advised that it was misclassifying its listed position, it may not require job restrictions that relate to the other, erroneous, DOT classification, or it will be held to require unduly restrictive job requirements and be denied. Hardee's , 94-INA-218 (June 27, 1995).

The DOT is merely a guideline and should not be applied mechanically. See Promex Corp. , 89-INA-331 (Sept. 12, 1990). Certification was properly denied for the position of tutor where Employer required 2 years of experience but where the position was more akin to the job of child tutor than tutor. Child tutors were allowed 1 year of experience. Lev Timashpolsky , 95-INA-33 (Oct. 3, 1996). See also U.S. Dyeing & Finishing, Inc. , 95-INA-10 (Sept. 4, 1996) (finding that the DOT re-enforced the CO determination that Employer's application for the position of set maker involved a combination of duties because it fell within the positions of Greige-goods maker and sewing machine operator and not a dye matcher or color maker as Employer argued); Jerry's , 94-INA-517 (Aug. 1, 1996); Glendale Family Medical Center , 95-INA-40 (Oct. 3, 1996) (remanding an application for the position of physician's assistant after the CO requested Employer to submit a statement from the state licensing board indicating either that the a license for the position was not required or that Alien had the license and after Employer refused to provide the statement because the CO was unreasonable in requiring Employer to prove that Alien had a license prior to certification and entry into the United States); Shari & Harvey Goodman , 94-INA-392 (Oct. 12, 1995) (denying certification and classifying a position as a child tutor rather than a tutor where Employer required 2 years of experience in the job offered, where Employer asserted that the 2 young children were to be given immersion in the Spanish language, but where the children to be taught were too young to learn academic subjects); Taste and Smell Clinic , 94-INA-498 (Feb. 7, 1996).

The Board recently cited Trilectron Industries, Inc. , 90-INA-176 (Dec. 19, 1991) and noted that the DOT is not to be applied in a pigeonhole fashion where there must be a complete matching of duties between the job offered and the DOT classification in order for a job to be appropriately classified." Employer applied for certification for the position of custom hand wood turner and required 3 years of experience. The CO issued a NOF questioning the business necessity of 3 years of experience when the normal requirement was 6 months to 1 year. In rebuttal, Employer argued that 6 months experience would be adequate for a lathe operator but not for the position offered. Affirming the CO's denial of labor certification, the Board compared the position for which certification was applied against that of a lathe operator found in the DOT. The Board noted that "virtually all the of the duties listed by Employer are included in the job description...for a lather operator." Mohamad Wood Turning, Inc. , 95-INA-309 (Feb. 6, 1997).

II. Specific vocational preparation

Noting that 20 C.F.R. § 656.20(c)(7) directs that the job's requirements not be "contrary to Federal, State, or local law", the panel determined that Employer failed to establish that its position offered was that of a medical office assistant, which did not require a license, as opposed to the CO's classification of the job as a physician's assistant which required a license. In so holding, the panel considered a description of the respective positions in the DOT and noted that "Employer's job description includes none of the managerial and secretarial tasks . . . which are a substantial part of the work of medical assistant." Moreover, the panel noted that letters from the Medical Board of California were also not supportive of Employer's position as the Board could not "determine what the applicant would actually be doing." Mohsen Hamza, M.D. , 90-INA-574 (Apr. 1, 1992).

Although there is some overlap in DOT description of child monitor and child tutor, the CO incorrectly determined that the position at issue is that of a child monitor where Employer adequately documented that "the number of hours each week that are required for specialized instruction and guided play is in excess of thirty" and that a day worker performs all household chores. John Lindenthal , 92-INA-281 (Aug. 4, 1993).

Labor certification denied where the CO properly categorized a job as nurse/consultant rather than as a sales position, as argued by Employer, although the job duties listed for the position do not meet every duty for that position as listed in the DOT. The panel cited to Trilectron Industries, Inc. , 90-INA-188 and 90-INA-176 (Dec. 19, 1991), and noted that "the DOT classification is not to be applied in a pigeonhole fashion where there must be a complete matching of duties between the job offered and the DOT classification in order for a job to be appropriately classified." Mega Nursing Services, Inc. , 93-INA-105 (Feb. 24, 1994); But see , Attilio M. Regolo, Jr. , 93- INA-94 (April 6, 1994) (reversing where the CO improperly categorized position of international development officer, which was not listed in DOT, as real estate attorney where job duties listed for the position do not suggest the practice of law and "if they did, would present additional issues if not performed by an attorney admitted to practice.").

A position, "computer systems controller - sales & purchasing," was listed by Employer as requiring both computer programming and bookkeeping duties. The panel therefore concluded that the job did not fit any single DOT occupational category and is an impermissible combination of duties. Although generally such a finding would support the CO's denial of certification, in this case the panel found the CO's citation to various DOT codes confusing and questioned the CO's classification of the job as "accountant. Accordingly, the panel remanded the case to the CO for a reclassification of the position with opportunity provided for Employer to rebut, if necessary, by establishing either the customary natures or business necessity for the combination of duties. Minuteman Press , 93-INA-15 (Mar. 25, 1994).

Panel rejected the CO's finding that duties of child tutor necessarily requires alien to tutor more than one child. Tutoring one child was held sufficient to meet the DOT requirements of "Children's Tutor". Nonetheless, because Employer failed to provide business necessity for requiring two years experience for the position with an SVP 5 (up to one year experience), labor certification denied. Kathy Ashton-Ly , 93-INA-499 (Feb. 7, 1995).

Panel did not accept Employer's contention that the CO wrongly categorized the job as a houseworker-general instead of housekeeper-home. Pursuant to the DOT, the distinction between housekeeper-home and houseworker-general is that the former acts as a coordinator or employees of employer, while the later actually performs the work assigned by a housekeeper or employer. Because Alien is the only individual employed by Employer on a full-time basis, and because Employer was unable to otherwise document that it has any household staff, either full or part- time, the CO correctly categorized the position as a houseworker- general. Scott and Eileen Gray , 94-INA-583 (Mar. 15, 1995).

Where Employer argued for creation of a new occupational code of "nanny" with an SVP of 6, but the job description closely matched that of "child tutor" with an SVP of 5, the existing classification was properly used. Teresa Yancey Crane , 94-INA-32 (Apr. 28, 1995).

The Board stated recently that "we see nothing to gain by a debate over the proper DOT classification." Instead, the Board indicated that the important point is whether the position requires a state license and whether Alien could procure it within a reasonable time period after entry into the United States. Glendale Family Medical Center , 95-INA-40 (Oct. 3, 1996) (remanding an application for the position of physician's assistant after the CO requested Employer to submit a statement from the state licensing board indicating either that the a license for the position was not required or that Alien had the license and after Employer refused to provide the statement because the CO was unreasonable in requiring Employer to prove that Alien had a license prior to certification and entry into the United States).

A. Overview

On reconsideration of decision and order, the panel remanded the case for the CO to provide the Employer the opportunity to submit documentation that a license is not required to perform the duties of the position, professional nurse/consultant. The panel stated that "where the CO reasonably determines that the job duties match a DOT description which requires licensing, the [e]mployer bears the burden of proof on rebuttal, that a license is not required." Mega Nursing Services, Inc. , 93- INA-105 (Jul. 13, 1994) ( dec. on recon. ).

See 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).

B. Requirements that exceed the SVP

Where an experience requirement exceeds the SVP the requirement may be unduly restrictive. See Information Industries , 8-INA-82 (Feb. 9, 1989) (en banc). Certification was properly denied for the position of tutor where Employer required 2 years of experience but where the position was more akin to the job of child tutor than tutor. Child tutors were allowed 1 year of experience. Lev Timashpolsky , 95-INA-33 (Oct. 3, 1996). See also Simon Martin-Vegue Winkelstein oris , 95-INA-52 (Sept. 25, 1996) (granting certification for the position of architect after the CO erroneously labeled the position an architectural drafter and erroneously denied certification on the basis that a master's degree and a 1 year experience requirement were unduly restrictive for the lesser position); Susie Hansen Band , 94-INA-402 (Aug. 22, 1995).

For the position of sample maker, children's clothing, Employer required 2 years of experience in the job offered. The DOT had no listing for sample maker, children's clothing even though it listed the position of sample maker (in general). Employer listed duties that did not relate to children's clothing but merely to sample making in general. The Board affirmed the CO's denial of certification, noting that Employer failed to prove that children's garments are so different from adult's garments that it is essential that the entire 2 years of experience be obtained in children's clothes for the job to be performed in a reasonable manner. The Board further noted that Employer only addressed the amount of experience necessary as a sample maker of children's documents in a conclusory manner. See Bantam Collections, Inc. , 88-INA-519 (Oct. 27, 1989). Florinda Fashions, Inc ., 94-INA-458 (Oct. 13, 1995).

For the position of "vice president and general manager" a marketing and management consulting firm required an MBA and 10 years of experience. The CO classified this position under the as a "manager/industrial organization," which required no MBA but 4-10 years experience. The CO denied labor certification because the MBA was unduly restrictive. The Board reversed the CO and granted labor certification because the proper classification for the position was "vice president" and, although the SVP was the same for vice president as it was for "manager/industrial organization," the Board found it appropriate to consult the Occupational Outlook Handbook ( OOH ) for general managers and top executives because the DOT did not specify what, if any, degrees were normal for the position. See The Cherokee Group , 91-INA-280 (Nov. 4, 1992), which the Board cited in using the OOH . Based on the OOH, the Board found that "many managers in administrative, marketing, financial and manufacturing activities have a masters degree in business administration," and the fact that the position paid $120,000 ranked the position in a higher category of vice presidents. Merchantmen International , 95-INA-106 (Sept. 25, 1996).

Employer filed an application for labor certification for the position of "senior physical therapy aide," requiring 3 years of experience and involving supervisory duties. The CO issued a NOF proposing to deny certification on the basis three 3 years of experience for the position of "physical therapy aide" exceeded the SVP time in the DOT (3-6 months). Employer rebutted, arguing that, since the position involved the supervision of employees, 3 years of experience was justified. Without it, Employer argued, the worker could not benefit Employer. The CO denied certification and the Board affirmed. The Board found that the job duties as set forth in the ETA 750A and advertisement for the position were those of the physical therapy aide, noting that "even if we would consider the position to be that of `physical therapist assistant,' which includes directing and giving instructions to physical therapy aides, Employer's requirement would still be..." excessive because the maximum allowed experience for the assistant position was 1 to 2 years experience. Parthenia Management Group, Inc. , 95-INA-108 (Feb. 5, 1997).

Employer required 2 years experience for the position of "child tutor" even though the DOT required 6 to 12 months for the position. Employer justified its requirement both on the basis that a "2 year experience requirement for the position of child tutor had been approved previously by the CO for another employer" (therefore, such precedents had to be followed, Employer argued), on the basis that her children were young and, "in all probability," a person with less than 2 years experience would not be able to perform the required duties. The CO denied certification and the Board affirmed. Citing Bantam Collections, Inc. , 88-INA-428 (Feb. 21, 1990) (denying labor certification to Employer whose job requirements exceed the SVP time listed for the position in the DOT unless Employer justifies the business necessity of the requirements), the Board reasoned that "submission of another employer's approved application does not set any precedent to which the CO or the Board is bound." In addition the Board held that Employer's assertion that 2 years experience was necessary because of the age of her children fell "short of establishing business necessity" because the DOT . for the position of "child tutor" specifies no particular age group (therefore it applies to children of all ages). Stacey Casaluci , 95-INA-105 (Jan. 29, 1997).

An alternative experience requirement is not unduly restrictive where it is appropriate to, and related to, the job. The 2 year experience requirement in the occupation of salad maker is within the SVP for an Italian specialty cook under DOT. CO's assertion that SVP for a salad maker is 6 months is irrelevant. See also Mall Foods Trivent, Inc. 95-INA-190(Jun. 12, 1996). The Winners Circle , 94-INA-544 (Oct. 31, 1996).

When DOT lists SVP of 2, employer may not require more than minimal experience, as 1 month of training would be adequate to perform the job satisfactorily. If employer insists on requirement above the DOT classifications, he must establish business necessity for it. The standard for business necessity is Information Industries, Inc . 88-INA-82 (Feb. 9, 1989). Aircraft Blazers - 94-INA-269 (Jul. 26, 1995).

C. Top end of SVP range may be required

Where the DOT recognizes that the position requires up to two years of experience and Employer's explanation of the minimum requirements establishes that it is a responsible supervisory position, the panel was persuaded that the two year requirement was not excessive. Rak and Rak, Inc. , 94-INA-210 (Apr. 28, 1995).

D. Weight of evidence

no new cases

E. Evaluation of college degree in regard to training time

Pursuant to the Handbook for Analyzing Jobs (1972), the average four-year college curriculum (except for liberal arts) is considered equivalent to about two years of specific vocational preparation. Susie Hansen Band , 94-INA-402 (Aug. 22, 1995).

For purposes of the DOT, 4 years of college is considered the equivalent of 2 years of experience. See Garland Community Hospital , 89-INA-217 (June 20, 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). See also Wong's Palace Chinese Restaurant , 94-INA-410 (Oct. 12, 1995).