Judges' Benchbook: Alien Labor Certification

Office of Administrative Law Judges
United States Department of Labor

Second Edition - May 1992

CHAPTER 23 SUPPLEMENT

Supplement current through January 1997

REJECTION OF U.S. WORKERS

Return to Main Text Divisions I to IV K .
Return to Main Text Divisions IV L to V .
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

V. Evidentiary matters

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 the lawful rejection of U.S. workers have been recodified from 20 C.F.R. § 656.21(b)(7) to § 656.21(b)(6).

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

Burden is on the employer to show applicant is rejected for other than lawful, job-related reasons. Employer did not meet burden because she relied on unavailability of the applicant but she spoke only with the applicant's stepfather. Further, a letter sent by the employer's agent stating that Employer's side of a conflicting account of an interview is not persuasive. Louise M. Borg , 94-INA-570 (Nov. 26, 1996).

Where Employer rejected an applicant for the position of "roofing mechanic" because "he does not have no experience in E.P.D.M., wood shingles or slate shingles," but the applicant alleged to have had 20 years of roofing experience, labor certification was properly denied because "Employer has not provided an objective, detailed basis for its conclusion" that the applicant was not qualified. See Impell Corp. , 88-INA-298 (May 31, 1989); Japan Budget Travel Int'l , 90-INA-277(Oct. 7, 1991). Rafa's Roofing, 95-INA-287 (Dec. 19, 1996).

II. Qualifications of U.S. applicants, generally

A. Applicant meets minimum requirements

Labor certification is properly denied where Employer rejected a U.S. worker who met the stated minimum requirements for the job. Sterik Co. , 93-INA-252 (Apr. 19, 1994). See also Cynthia arks , 93-INA-209 (Aug. 16, 1994); Ronell's Stores, Inc. , 93-INA-352 (Sep. 29, 1994)(applicant meets alternate experience requirement); International Printing Translation and Publishing Co. , 93- INA-326 (Oct. 11, 1994); Santa Barbara Immigration Ctr. , 93-INA-559 (Nov. 30, 1994)(contrary to employer's assertion, applicant appeared to meet immigration-law experience requirement); ABC Home Video Corp. , 93-INA-480 (Nov. 16, 1994)(applicants meet alternate experience requirement); Bankers Trust Co. , 93-INA-486 (Nov. 16, 1994); Conrad's, Inc. , 93-INA-495 (Mar. 22, 1995)(as applicant's resume indicates accounting experience with store selling women's and men's apparel, without further investigation employer cannot reject applicant as having no related background experience in retail fashion industry); Picasso Travel , 93-INA-562 (Mar. 31, 1995)(two applicants who were rejected met the requirements for a tour director to Turkey); Francisco Potestas , 94- INA-204 (Apr. 26, 1995).

Labor certification was properly denied where Employer rejected two U.S. applicants who met the minimum requirements. The panel did not accept Employer's contention that while the applicants met the three month experience requirement they were nevertheless properly rejected because that experience was too remote to be considered. The panel noted that the job duties mainly involved loading and unloading trucks and that it was purely speculative for employer to conclude that the applicants would be unable to perform the job due to remoteness of experience. Lyndhurst Trading Corp. , 93-INA-37 (Mar. 25, 1994).

In light of employer's subsequent concession that the U.S. applicants education and experience was beyond the minimum requirements for the job, Employer unlawfully rejected the applicant prior to interview because the applicant's resume failed to specify the required B.S. degree in Production/Industrial. Engineering CSC Partners , 92-INA- 433 (Aug. 16, 1994).

Labor certification was properly denied where applicant's resume lists minimum requirements for the job and employer's assertion that applicant is unqualified was not supported by any objective evidence. A.E.W. North Am., Ltd. , 93-INA-471 (Oct. 31, 1994).

Employer unlawfully rejected qualified U.S. workers and labor certification was properly denied where the CO reviewed the resumes of U.S. applicants and determined that their particularly stated Master's degrees should have been considered qualifying. The panel found that, essentially, the CO challenged Employer's degree requirement as unduly restrictive and afforded employer the opportunity to change the requirement or provide business necessity. The fact that the CO made this determination after reviewing the qualifications of U.S. applicants did not mean that the CO improperly substituted her judgement for employer's unchallenged job requirements as precluded by Bronx Medical and Dental Clinic , 90-INA-479 (Oct. 30, 1992)(en banc). The panel distinguished this situation from one described in AFS Intercultural Programs , 92-INA-358 (May 11, 1994), where the CO's challenge of the minimum requirements was "inextricably linked" to review of U.S. applicants properly rejected for not meeting the otherwise acceptable minimum requirements. Here, unlike in AFS , employer admitted that the particular degree requirement was unduly restrictive but was unable to convincingly explain why it would not expand the degree requirement as instructed. Council on Int'l Educ. , 93-INA-136 (Nov. 10, 1994).

Labor certification properly denied where applicant meets the minimum requirements for a basic Jeweler position. Employer's objection that applicant does not possess specific "form modeling" experience appears unfounded as the basic duties already possessed by the applicant seem to include such "form modeling" experience. Alternately, even if the applicant did not possess specific "form modeling" experience, it is evident that he meets the minimum requirements for a basic jeweler, and as there need not be a complete matching of duties between the job offered and the applicants experience, rejection of applicant unlawful. Pronto Jewelry , 94-INA-68 (Nov. 30, 1994).

Labor certification properly denied where U.S. applicant was rejected for not meeting the employer's two year training requirement and the CO properly concluded that the applicant was nevertheless qualified for the position pursuant to section 656.24(b)(2)(ii). The panel noted that the applicant in fact graduated from the same training course cited to by Employer to justify its two year requirement; the fact that the applicant completed the course in 18 months does not obviate that the applicant is qualified for the position. Marriot Food Serv. , 94-INA-233 (Apr. 17, 1995).

Labor certification is properly denied where the employer rejected a U.S. worker who met the stated minimum requirements for the job. Banque Francaise Du Commerce Exterieur , 93- INA-44 (Dec. 7, 1993)(applicant meets primary and alternative minimum requirements for V.P./Financial Analyst position); State of California, Bd. of Equalization , 93-INA-42 (Dec. 7, 1993); Centurian Technology Sys., Inc. , 92- INA-314 (Dec. 15, 1993); Crown Cork & Seal, Inc. , 92-INA-292 (Oct. 26 1993); Kam Kuo Foods Corp. , 92-INA-395 (Oct. 25, 1993); Newtown Metal Corp. , 92-INA-350 (Sept. 29, 1993); Petrossian, Inc. , 92-INA-41 (Sept. 1, 1993); Sparks Steak House , 92-INA-29 (Aug. 25, 1993); Jacob Camrad , 92-INA-379 (July 28, 1993) (employer conceded applicant met the job requirements); Andre's Hungarian Pastries, Inc. , 93-INA-85 (Jan. 4, 1994); Y. Moussaieff (U.S.A.) Ltd. , 92INA-244 (July 26, 1993); Brennan, Beer, Gorman Architects , 92-INA-300 (July 1, 1993); Managment & Hotel Assoc. , 90-INA-150 (June 16, 1993); Celini P.V.C. , 92-INA-233 (May 28, 1993); California Dept. of Food & Agriculture , 91-INA-292 (Oct. 28, 1992); Senior's Too, Inc. , 91-INA-244 (Aug. 28, 1992); International Camera & Electronics , 90-INA-500 (Aug. 31, 1992); Empress Foods, Inc. , 91-INA-235 (Sept. 1, 1992); Obermeyer Ski Wear , 91-INA-268 (Aug. 14, 1992) (rejection for lack of knowledge in outerwear or ski wear unlawful where job description required "only experience in the garment industry as a whole"); Juzcel anagement, Inc ., 90-INA-107 (Aug. 4, 1992); Chi W. Cheung , 91-INA-249 (July 21, 1992); Joseph General Elec. Contractor , 91-INA-173 (July 14, 1992); G & T Children's Wear, Inc ., 90-INA-594 (June 30, 1992); Kem Medical Products, Corp ., 91-INA-196 (June 30, 1992); Cristina McGinniss , 91-INA-191 (June 30, 1992); Croissant Show, Inc ., 91-INA-38 (June 19, 1992); John Hancock Financial Serv. , 91-INA-131 (June 4, 1992); Lifeline Health Serv. Int'l Corp. , 91-INA-113 (May 18, 1992); Pan Am. Diamond Corp. , 90-INA-445 (May 14, 1992); Deloitte Touche & Co. , 91-INA-35 (May 13, 1992); Danbury Hilton Inn , 90-INA-281 (Apr. 17, 1992); Joy Kesaris , 93-INA-156 (April 8, 1994); Eileen Mayo Ames , 93-INA-176 (May 28, 1994).

Labor certification was properly denied where the employer rejected U.S. workers for failure to meet a foreign language requiement which Employer conceded was mistakenly omitted from the ETA-750 and advertisements. Arnold Shapiro Prod., Inc. , 92-INA-77 (July 19, 1993).

However, an employer may reject a U.S. worker who meets the minimum specified requirements where Employer provides an objective, detailed basis for concluding that the applicant could not perform the core job duties. Therefore, a panel concluded that "[a]lthough the U.S. applicant has many years of engineering experience none involve(d) the core duties for the job, which entail design and analysis of pipeline systems. Formosa Plastics Corp., U.S.A. , 91-INA-141 (Aug. 14, 1992). See also Ahn & Han Architects , 91-INA-229 (Mar. 25, 1993) (applicant not have experience in core job duties of planning, designing, and furnishing residential and commerical buildings); C.W. Designs , 91-INA-287 (Dec. 11, 1992) (in assessing an applicant's experience, "the relevant inquiry is whether the U.S. worker has had experience in the duties described, not whether she was employed with a specific job title"); A.V. Giordano Co. , 91-INA-298 (Nov. 30, 1992); Barolo Ltd. , 91-INA-261 (Oct. 5, 1992); D'Alem Const. Corp. , 91-INA-258 (Aug. 5, 1992).

Employer could not reject U.S. workers for lack of experience in each duty listed where it required experience in the job offered or, in the alternative, two years of experience in any combination of office, supervisory, or maintenance work which is a more generalized requirement. Total Bldg. Maintenance, Inc. , 90-INA-473 (Apr. 12, 1993).

The employer unlawfully rejected U.S. workers for lack of stenographic abilities where the ETA-750 and job advertisements did not contain this requirement. Motor Club of Am. , 91-INA-146 (Oct. 31, 1992).

Applicants were unlawfully rejected for the job of Group Teacher based upon unstated requirements of "courses in Early Childhood Education, 150 hours of student teaching on the pre-school level and approval by the N.Y. City Department of Health." Robert F. Kennedy Day Care Ctr. , 92-INA-293 (June 1, 1993).

The employer unlawfully rejected a U.S. worker with one and one-half years of experience as a Kitchen Helper where the employer required only one month of experience. Rossini's Place, Inc. , 92-INA-299 (June 1, 1993).

Labor certification was properly denied where an applicant had the requisite experience and Employer failed to document "that the field has changed substantially, or, if so, has not reasonably specified what has changed, thereby making the applicant's knowledge and experience obsolete." The panel thus distinguished the decision in Texas Instruments , 88-INA-413 (May 13, 1989)(en banc) in which Employer documented with evidence from the applicant's interview, that his lack of current knowledge of semiconductor devices would require a long period of training. HGHB , 92-INA-267 (June 3, 1993). See also Envelope Mfg. Corp. , 92-INA-356 (Nov. 29, 1993)(citing HGHB ). Compare Messina Music, Inc. , 92-INA-357 (July 20, 1993) where the same panel affirmed the denial of labor certification on grounds that Employer failed to provide specific support for its assertion that the applicant's experience was outdated.

Labor certification was properly denied where the employer rejected U.S. workers for an unstated requirement, "their alleged lack of ability to do hand detailing and hand carving of wood." The panel further held that the CO properly denied Employer's request to re-recruit with more restrictive requirements." Lewis Mittman, Inc. , 92-INA-230 (May 28, 1993).

The employer improperly rejected a U.S. worker who met Employer's alternative requirement of two years of experience as a Machinist/Sheet Metal Fabricator. Pro Parts, Inc. , 92-INA-289 (July 19, 1993); See also Champion Serv., Inc. , 93-INA-46 (Dec. 15, 1993)(applicant meeting alternative 2 year experience requirement improperly rejected).

Labor certification properly denied where U.S. applicant rejected for lack of experience in electronic equipment and fork lift operation where neither requirement is stated as a minimum requirement on the Form ETA 750 or in the advertisement for the position. The panel did not accept Employer's argument that since the position offered is a warehouse supervisor in an electronics firm, the 1 year experience requirement as a warehouse supervisor or in the related occupation of assistant warehouse supervisor necessarily incorporates experience operating a fork lift and in electronic equipment. Tel-Ko Electronices, Inc. , 92-INA-28 (Sept. 1, 1993).

Employer improperly rejected U.S. applicants who possessed the academic requirements for the position and had one year required experience as an accountant, notwithstanding that employer listed the one year experience requirement as "cash manager". Noting that the significant operative phrases used by employer to describe the position closely parallel the DOT description of an accountant, The panel agreed with the CO that experience as an "accountant" was the same as experience as a "cash manager". Countrymark Cooperative, Inc. , 92-INA-304 (Dec. 8, 1993).

Labor certification properly denied where rejected applicant appeared to meet Employer's minimum stated requirements. Employer's later attempt to distinguish the applicant's specific experience from that required was not found persuasive because if such specific experience is in fact required, it must be distinctly listed as a minimum requirement on the ETA 750A. J. Taylor Equip. Co., Inc. , 92-INA-353 (Dec. 10, 1993).

Employer improperly rejected a U.S. applicant meeting the minimum stated requirements as specified on the ETA 750A. The fact that the applicant did not meet the requirements for the position as advertised was not determinative since the actual minimum requirements must be those as appear on ETA 750A in order that the Certifying Officer can review and challenge them where unduly restrictive. The panel noted that the employer did not document that Alien in fact possessed the minimum requirements as listed in the advertisement. Lakeview Food Stores , 92-INA-258 (Dec. 22, 1993).

Employer improperly rejected a U.S. applicant for failing to possess a drivers license which was not listed as a minimum requirement. Robert and Elizabeth Fisher , 92-INA-204 (Jan. 4, 1994).

Employer improperly rejected U.S. applicants who met minimum stated requirements. The employer's contention that the applicants could not perform the stated job duties despite possessing the minimum stated requirements was not objectively detailed and, therefore, the employer did not meet its burden of proof. Champion Zipper Corp. , 92-INA-174 (Jan. 4, 1994).

Employer improperly rejected U.S. applicant who appeared to meet the minimum stated requirements for the position. Considering the extensive experience listed on the applicant's resume, Employer is required to produce objective and detailed reasons for rejecting the applicant after interview. Orient Computer Corp. , 91-INA-322 (March 18, 1994).

Employer improperly rejected U.S. applicant who meets the minimum stated requirements (a degree, Lotus 1-2-3 experience, general ledger and accounts payable and 18 months accounting experience) for lack of specific experience in managing a personnel office which, though listed in the job duties, was not specified as a minimum requirement. YMCA of Central and N. Westchester , 93-INA-6 (Mar. 28, 1994).

Employer improperly rejected U.S. applicant with extensive private foreign language teaching experience for lack of 3 months teaching experience in an institutional setting. The employer required 3 months experience as a Language Teaching Assistant and did not specify institutional experience as the only qualifying experience. Columbia Grammar & Preparatory Sch. , 92-INA-410 (April 6, 1994).

Labor certification denied where applicant's resume indicates over 3 months experience as required. As the applicant's previous employer's name, address and phone number were submitted along with the resume, Employer's contention that she could not verify such experience was not found credible. In addtion, the panel found that part time (4 hours/day) experience performed for six months was qualifying experience and equals 3 months experience as required for the position. Yolanda Navarro , 93-INA-77 (Mar. 28, 1994).

If applicant clearly meets minimum qualifications for job, they are considered qualified. UPS, 90-INA-90 (Mar. 28, 1991). In general, employer unlawfully rejects workers who meet minimum education and experience requirements American Cafe , 90-INA-26 (Jan 23, 1991). Labor certification properly denied when employer rejects U.S. worker who meets minimal requirements Sterik Co. , 93-INA-252 (Apr. 19, 1994). Luis A. Morillo , 94-INA-223 (July 26, 1995).

Employer may lawfully reject applicant who does not meet unchallenged job requirements. Bronx Medical & Rental Clinic, 90-INA-479. (Oct. 30, 1993) (en banc). Sherwood Hall Shell , 94-INA-416 (Oct. 13, 1995).

Where job advertisement stated that experience might be a substitute for education, employer may not reject a U.S. applicant for failure to meet both experience and educational requirements where applicant did have the required experience, as the ad requested. SLS-Specimen Lab. Specialist , 94-INA-477 (July 28, 2995).

Employer sought labor certification for the position of Live-in domestic," its duties including general "housework, laundering, cleaning, cooking and child care." The Employer required 3 months of experience for the position and 1 of 4 applicants met that job requirement. The Employer argued that the 1 qualified applicant was currently operating a day care business "that she was unwilling to give up." However, the applicant denied the Employer's assertion as "an absolute lie" and instead stated that she had told the Employer that she would be willing to give up her child care business for a live-in position of $300.00 per week. The CO denied certification and the Board affirmed. It reasoned that the applicant was qualified because she met the minimum requirements specified by the Employer's application for labor certification. See The Worcester Co., Inc. , 93-INA-270 (Dec. 2, 1994); First Michigan Bank Corp. , 92-INA-256 (July 28, 1994). Jane R. Fuerst , 94-INA-506 (Nov. 14, 1996).

An applicant was ostensibly qualified for the position of "Tile Mason" but the Employer claimed initially that the applicant was uninterested in the work location. However, the applicant claimed that "I asked...[Employer] about the location of the job and told her that I would be able to work anywhere." The applicant further claimed that he was uninterested in the position because the Employer's agent informed him on the telephone that the wage would be $12.00 per hour even though the advertised wage was $26.54 per hour. In rebuttal to the NOF Employer claimed that the Employer's agent informed the applicant that the advertised salary "was in accordance with Department of Labor regulations although Employer had initiated the application with a starting salary of $12.00, and therefore, would be [sic] the ultimate decision of Employer as to the specific salary..." The Employer claimed that its agent was "merely providing an administrative albeit tedious and time consuming, function of facilitating the prospective applicant to meet with Employer..." The CO denied certification and the Board affirmed. The Board reasoned that the applicant met the minimum requirements specified for the position and Employer had an obligation to contact him. See The Worcester Co., Inc, 93-INA-270 (Dec. 2, 1994). Striano Contracting Corp. , 94-INA-509 (Nov. 14, 1996).

See also Worldwide Seafood Imports, Ltd. , 94-INA-526 (Aug. 1, 1996); Service Today, Inc. , 95-INA-85 (Oct. 1, 1996); Jeepney Grill , 94-INA-401 (July 3, 1995); DNT Int'l, Inc ., 93-INA-463 (Mar. 15, 1996).

Where a U.S. applicant is facially qualified , employers have a duty to investigate further by interviews or otherwise. See Gorchev & Gorchev , 89-INA-118 (Nov. 29, 1990). Here, the recruitment report indicated that 1 applicant was not contacted for the position of automated systems specialist because he did not have educational or work experience background. In rebuttal, Employer stated that the applicant was rejected because he did not have the required 3 years of experience as an automated systems specialist or experience designing systems for diversified uses. The Board found, however, that the applicant had been a comperterized accountant since the 1960s and with such an extensive background, the applicant should have been interviewed. Pico Inv. Co. , 94-INA-249 (oct. 4, 1995).

Labor certification is properly denied where Employer rejects a U.S. worker who meets the stated minimum requirements for the job. Coventry Place , 95-INA-319 (Feb. 6, 1997).

Where for the position of Dressage horse trainer Employer rejected 1 applicant on the basis that he possessed no experience in breaking horses and analyzing the potential for new horses, where the applicant objects vigourously to this contention in saying that breaking horses is such a basic skill that he did not place it on the resume but instead listed more advanced skills, and further argued that, in fact, he was experienced in analyzing young horses, then labor certification was properly denied because when an applicant's resume indicates a broad range of experience, Employer must further investigate the specifics. See , Dac Data Sys. Corp. , 94-INA-147 (May 15, 1995). Fritz R. Kundrun , 94-INA-240 (Jan. 10, 1996).

Where applicant lists "Diesel Mechanic" as position sought even though he applied for position of cement mason, where Employer rejects applicant because he only had experience in office work and not as a bricklayer, but where applicant's resume indicates 5 years of experience as a bricklayer dealing with "construction of all phases of masonry," then labor certification was properly denied because the applicant "clearly" had the 2 years experience required for the position, and the fact that the applicant's resume listed "mechanic" as the position appplied for is irrelevent because "it is obvious" that the applicant knew this position offered was not that of a diesel mechanic. Keiter Constr. Co. , 94-INA-188 (July 17, 1995).

Applicants are considered qualified for the job if he or she meets the minimum requirements specified by an employer's application for labor certification. See The Worcester Co., Inc. , 93-INA-270 (Dec. 2, 1994). Employer rejected 1 applicant for the position of software research associate because the applicant had not already (although he was currently) taken a course in information management and because he "had extremely little experience in the field and he has he has no experience in developing utility program." However, the applicant's resume suggested that he had over 9 years of experience in information management, including experience as an application programmer, system administrator, and college teacher; he had experience writing soft wareand know multiple programming languages, inlcuding assembly language and the applicant had a Master's Degree in Electrical engineering from a chinese universityand is currently working on a doctorate in comptuter science. Certification was proplerly denied. Software Sys. Technology, Inc ., 94-INA-299 (June 27, 1995).

An employer unlawfully rejects a U.S. applicant who satisfies the requirements specified by an employer in its application and advertisements for the position. See American Cafe , 90-INA-26 (Jan. 24, 1991). In the recruitment report the Employer rejected the applicant on the basis that she did not drive and did not swim. Neither of these reasons were stated as requirements in the Employer's application or advertisements. Certification was properly denied. Sarah and Norman Jaffe , 94-INA-513 (Oct. 30, 1995).

An employer must state all the requirements for the position on the application and if an applicant meets the requirements as stated by Employer, he or she is deemed qualified for the job. See Bell Communications Research, Inc. , 88-INA-26 (Dec. 22, 1988) (en banc). But see Ashbrook-Simon Hartley v. claughin , 863 F. 2d 410 (5th Cir. 1989). Employer rejected several applicants for the position of maintenance mechanic on the basis that they could not perform the job duties as listed in item 13 of the ETA 750A (job duties). See Ashbrook-Simon Hartley v. Mclaughin , 863 F. 2d 410 (5th Cir. 1989). However, the Board found that the actual test was whether the applicant met the job requirements in item 14 (requirements). See Bell Communications Research, Inc. , 88-INA-26 (Dec. 22, 1988) (en banc). In any case, the Board reasoned that several applicants could perfomr the duties listed in item 13. Bo Packing , 94-INA-443 (Feb. 6, 1996).

An applicant who meets the alternative minimum requirements for a position is considered qualified. See Ronell's Stores, Inc. , 93-INA-352 (Sept. 29, 1994). The Employer unlawfully rejected an applicant for the position of maintenance mechanic on the basis that he had insuffucient experience in refrigeration and because he had no experience in general building maintenance. The Board reasoned that the applicant had 16 years of combined experience repairing machines and he had a "major" from a vocational school in heating and A/C refrigeration and had extensive experience servicing and repairing refrigeration units. Further, the Board reasoned that there was no suggestion that the job in question entailed genreal buiding maintenance. Bo Packing , 94-INA-443 (Feb. 6, 1996).

Where an applicant's resume shows a broad range of experience, education and training that raises a reasonable possability that the applicant is qualified, even if it does not state that he or she meets all requirements, an employer should further investigate the applicant's credentials by interview or otherwise. See Dearborn Pub. Sch. , 91-INA-222 (Dec. 7, 1993). The Employer rejected 1 applicant for the position of accountant in the recuitment report on the basis that he lacked auditing experience. The Employer later stated that the applicant was rejected on the basis that the applicant had not "internal auditing experience." The Board affirmed the CO's denial of labor certification, reasoning that the applicant's resume actually reflected the required auditing experience and that the internal auditing experience was not job requriment for the position. Pouyan, Inc., d/b/a Dominos Pizza , 94-INA-414 (Oct. 12, 1995).

An employer may reject an applicant who meets the stated job requirements but is nevertheless demonstrably incomptetent to perform the main duties of the job, based on the information obtained from references or objective testing during the interview. See First Michigan Bank Corp. , 92-INA-256 (July 28, 1994). The Employer rejected 1 applicant for the position of accountant in the recuitment report on the basis that he lacked auditing experience. The Employer later stated that the applicant was rejected on the basis that the applicant had not "internal auditing experience." The Board affirmed the CO's denial of labor certification, reasoning that the applicant's resume actually reflected the required auditing experience and that the internal auditing experience was not job requriment for the position. Pouyan, Inc., d/b/a Dominos Pizza , 94-INA-414 (Oct. 12, 1995).

An applicant is considered qualified for a job if he or she meets the stated minimum requirements for the job. See United Parcel Serv. , 90-INA-90 (Mar. 28, 1991). The Employer unlawfully rejected an applicant for the position of maintenance mechanic on the basis that he had insuffucient experience in refrigeration and because he had no experience in general building maintenance. The Board reasoned that the applicant had 16 years of combined experience repairing machines and he had a "major" from a vocational school in heating and A/C refrigeration and had extensive experience servicing and repairing refrigeration units. Further, the Board reasoned that there was no suggestion that the job in question entailed genreal buiding maintenance. Bo Packing , 94-INA-443 (Feb. 6, 1996).

Employer sought certification for the position of Computer Programmer and required a high school education and 3 years of experience in the job offered. The Employer listed no special requirements in its ETA 750A. One applicant had experience in Basic; Cobol; RPGII programming; local area networks, particularly Novell Netware v2.2; Lotus 113; WordPerfect; icrosoft Excel; Carbon Copy; IBM S/36; and had converted files from IBM S/36 to PC Lan. The Employer rejected him because he was inexperienced in Micro Focus Cobal and Novell Netware Operating Systems, arguing that the applicant's experience was unrelated to the experience required for the position. The CO denied certification and the Board affirmed. Citing American Cafe , 90-INA-26 (Jan. 24, 1991), the Board noted that applicants who meet the minimum requirements specified in the ETA 750A and the advertisement for the position are considered qualified. Here, the Board reasoned, the applicant was rejected for not having specific programming experience which was not included in the ETA 750A. Pacific Shores Financial Corp. , 95-INA-115 (Jan. 28, 1997).

The Board distinguished 1 case from Bronx Medical and Dental Clinic , 90-INA-479 (Oct. 30, 1992). The Employer rejected 1 applicant for the position of accountant in the recuitment report on the basis that he lacked auditing experience. The Employer later stated that the applicant was rejected on the basis that the applicant had not "internal auditing experience." The Board affirmed the CO's denial of labor certification, reasoning that the applicant's resume actually reflected the required auditing experience and that the internal auditing experience was not job requriment for the position. Bronx was found not to control because internal auditing experience was "not a job requirement." Pouyan, Inc., d/b/a Dominos Pizza , 94-INA-414 (Oct. 12, 1995).

Employer sought certification for the position of Auto Mechanic for foreign automobiles. Its only requirements were 2 years experience in the job offered. The Employer rejected 1 applicant with 28 years of experience because the applicant had no experience in fuel injection. The CO denied certification and the Board affirmed. Citing United Parcel Serv. , 90-INA-90, (Mar. 28, 1991), the Board noted that applicants who meet the minimum experience listed in the ETA 750 for the position are considered qualified. Here, the Board reasoned, neither the ETA 750A nor the advertisement stated that expertise in fuel injection was a requirement for the position. G.M. Hotlunch Truck MFG., Corp. , 95-INA-116 (Jan. 28, 1997).

Where an applicant's resume shows a broad range of experience, education and training that raises a reasonable possability that the applicant is qualified, even if it does not state that he or she meets all requirements, an employer should further investigate the applicant's credentials by interview or otherwise. See Dearborn Pub. Sch. , 91-INA-222 (Dec. 7, 1993). The Employer failed to provide sufficient documentation in support of its rejection of 11 U.S. workers for the position of geotechical engineeer. Only 3 applicants were interviewed, so the Employer's assertion that 2 other applicants had no software experience was not made after reasonable inquiry. The rejection of 3 additional applicants on the basis that they lacked business training was invalid because that requirement was unsupported by business necessity. As to the Employer's assertion that that 1 applicant had no work authorization, more was required than a "general statement" that persons unknown had said that the applicant lacked authorization. Although 3 other applicants either lacked experience or undergraduate degrees, these applicants had impressive credentials and their rejections further adds to the impression that there lacked good faith recriutment. Twin City Testing , 94-INA-415 (Oct. 12, 1995).

Upholding a CO's denial of labor certification, the Board recently cited United Parcel Serv. , 90-INA-90 (Mar. 28, 1991) (holding that the Board considers an applicant qualified if he meets the minimum requirements for the position). The Employer rejected 1 applicant for the position of Pharmacist on the basis that he had poor communication skills. However, Employer listed only a B.S. in Pharmacy and a California practitioner's license as requirements for the position. In upholding the denial of certification, the Board reasoned that Employer had presented no new evidence designed to rebut the applicant's qualifications for the position and for that reason, the applicant would be deemed qualified for the position. Save-On Drugs , 95-INA-250 (Jan. 30, 1997).

Upholding a CO's denial of labor certification, the Board recently cited American Cafe , 90-INA-26 (Jan. 24, 1991) (holding that employers unlawfully reject U.S. applicants who meet the minimum requirement specified in the ETA 750A and the advertisements for the position). The Employer rejected 1 applicant for the position of Pharmacist on the basis that he had poor communication skills. However, Employer listed only a B.S. in Pharmacy and a California practitioner's license as requirements for the position. In upholding the denial of certification, the Board reasoned that Employer had presented no new evidence designed to rebut the applicant's qualifications for the position and for that reason, the applicant would be deemed qualified for the position. Save-On Drugs , 95-INA-250 (Jan. 30, 1997).

Employer rejected a U.S. applicant for the position of Diesel Mechanic whose resume indicated that he had 4 years experience for the position. The Employer reasoned that his resume did not show "ANY EXPERIENCE as Diesel mechanic except for the title if [sic] you review the job description on his resume you will agree with me that they do not even resemble the job to be performed." Rather than contacting the U.S. applicant to interview him, Employer stated that he checked with unspecified people for whom the applicant worked. Rather than producing documentation of these conversations after the CO requested them, Employer merely stated that the U.S. mechanic's resume showed no experience as a diesel mechanic, "except for the title." The Employer "reiterated that he tried to clarify ...[the applicant's] experience with his previous employers, and again failed to provide specifics or documentation regarding such contacts. The CO denied certification and the Board affirmed. It reasoned that the applicant's resume indicated on its face that there is a reasonable possibility that he possessed 4 years of experience as a diesel mechanic and Employer had an obligation to investigate his credentials further. See Gorchev & Gorchev Design , 89-INA-118 (Nov. 29, 1990 (en banc). Cavalier's Bay Ctr., Inc., 95-INA-90 (Jan. 27, 1997).

The Board held on appeal after a Motion to Reconsider that the case should be remanded. The CO failed to consider an Employer's vice president's assertion that an applicant "had a hard time understanding the interviewing officer and, when he answered the questions he, could not bring out his knowledge..." The vice president had further stated that the applicant "could not express ...[himself] in words...," although he was "academically intelligent." The Board disagreed with the CO's finding that a response submitted by the applicant wherein he wrote, "I have experience in civil/stru/soil eng'g...If I was not hired, there might have someone they thought more appropriate...I got letter [sic]...," demonstrated a command of the English language. The Employer lastly stated that clients in the past have asked for replacements when faced with an employee who cannot speak English well. The Board reasoned that the applicant failed to meet the minimum requirements for the position. Testwell Craig Labs of N.J., Inc. , 94-INA-512 (Dec. 2, 1996).

Employer filed an application for labor certification for the position of "Elementary School Teacher" and the duties included the "Sacramental preparation of students." The Employer required one year experience in the job offered. An alternative to the requirement of one year experience in the job offered was one year experience in the related field of "Teacher." The Employer rejected 6 applicants on the basis that they lacked experience necessary for the Sacramental preparation of the students. The CO denied certification and the Board affirmed. The Board reasoned that Employer could not reject 6 applicants on the basis that they lacked experience in the "Sacramental Preparation of Students" because applicants are considered qualified for the job if they meet the minimum requirements by an employer's application for labor certification and because one year experience as a "Teacher" was an alternative to the requirement of one year experience in the job offered. Sacred Heart Sch. , 94-INA-510 (Nov. 14, 1996).

Where the only requirement for the position of "Bookkeeper I Bilingual," was 2 year's experience, where an applicant was "ostensibly qualified" for the position, where Employer asserted that the applicant was rejected because of lack of interest, but where the applicant denied that she was uninterested, then labor certification was properly denied because the applicant was considered qualified for the position and the Employer's recruitment was not conducted in good faith. Wah Yuan Trading Corp. , 94-INA-507 (Nov. 14, 1996).

Employer sought alien labor certification for the position of "Monitor, Sleep-In, Household" and the state agency determined that one U.S. applicant was qualified for the position. However, Employer failed to either contact the applicant or submit a recruitment report (even though Employer did submit a letter addressed to the applicant and did submit a narrative recounting its recruitment efforts concerning another applicant). The CO denied certification and the Board affirmed. The Board reasoned that the applicant met the minimum requirements specified for the position and Employer had an obligation to contact her and therefore labor certification was properly denied. See The Worcester Co., Inc, 93-INA-270 (Dec. 2, 1994). Cristina Clark , 94-INA-508 (Oct. 31, 1996).

Where the only requirement for the position of "Bookkeeper I Bilingual," was 2 year's experience, where 2 applicants "clearly" met that requirement and where the Employer's basis for their rejection was inability to contact their references and the applicants' failure to return a phone call, then the applicants are considered qualified for the position and the Employer's recruitment was not conducted in good faith because both applicants denied having received phone calls and the Employer's efforts in contacting references through directory assistance without obtaining additional information from the applicants appeared "highly unusual and did not at all afford the U.S. workers applying for the job any opportunity to present their qualifications, credentials, or references." Wah Yuan Trading Corp. , 94-INA-507 (Nov. 14, 1996).

Where Employer rejected a U.S. applicant for purportedly failing to have experience in directing an organic/inorganic laboratory, establishing laboratory protocols and "QA-QC procedures, then Employer unlawfully rejected the U.S. worker because none of these requirements were stated on the ETA-750 or in the job listing and 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. Spectrum Analytical, Inc. 95-INA-324 (Jan. 19, 1997).

Employer sought certification for the position of "Staff Accountant" in a trading company and rejected an applicant due to lack of experience in the import/export field. The Employer maintained that the only experience the applicant had was with Golden Financial Group for a year and 7 months and that his other experience was in the area of operation analyst for financial companies rather than as assistant accountant for a trading company. The applicant, contradicting Employer, described Golden Financial Group as a trading company. The CO denied certification and the Board affirmed, reasoning that the applicant had been unlawfully rejected. It appeared "clear" to the Board that Polly Peck International Enterprises, another previous employer of the applicant, was a trading company and not a financial company. According to the Board, the applicant's experience at Poly Peck in the absence of other evidence, seemed to have spanned 18 months. In addition, the Board reasoned that while the applicant did not specifically show that he dealt with collection matters in either of the above positions, this lack was not assigned as a reason for rejection in either the recruitment report or the rebuttal. oreover, his resume did disclose his having been involved with accounts receivable in other positions such as an international banking facility. First Nat. Trading Co., 95-INA-97 (Jan. 27, 1997).

US applicant may not be lawfully rejected for being overqualified or because he may only stay in the position a short time. See also Ken-Med Products Corp., 91-INA-196 (Jun. 30, 1992); Integrated Business Solutions, Inc., 94-INA-209 (Jun. 22, 1995); Upholstery Creations, 94-INA 470 (Aug. 21, 1995). IPF Int'l, Inc. , 94-INA-586 (Jul. 24, 1996).

Employer who gives the job one title (foreman/factory) when the actual duties resemble another (supervisor/demolition) cannot show that there are no qualified US workers because the applicants cannot even be considered until the job duties are clear. Calvin aintenance , 94-INA-552 (Nov. 18, 1996).

B. Applicant does not meet requirements

The CO was reversed and labor certification was granted where CO admitted that the applicant did not meet the minimum requirements for the position but nonetheless denied certification based the CO's belief that the applicant could nevertheless perform the job duties. The panel held that the minimum requirements were those normally required for the position as defined in the DOT. Therefore, the fact that the CO questioned the minimum requirements as restrictive did not obviate the fact that U.S. applicant did not meet the accepted minimum requirements for the position. AFS Intercultural Programs , 92-INA-358 (May 11, 1994).

Labor certification granted where the U.S. applicant did not meet an unchallenged license requirement. The CO improperly substituted her own judgement pursuant to 656.24(b)(2)(ii) in concluding that despite the applicant's lack of the required license, he was qualified to perform the job. Payless Drug Store , 93-INA-459 (Jul. 26, 1994)(citing Bronx edical and Dental Clinic , 90-INA-479 (Oct. 30, 1992)(en banc)).

Denial of labor certification reversed where all applicants were lawfully rejected since their resumes and job service questionnaire forms demonstrate that none possessed the required experience in the all of the core job duties. Indarjit Jadoo , 93-INA-492 (Nov. 29, 1994).

Labor certification properly denied where Employer indicated that he rejected U.S. applicant because he was unable to verify the 20 years of experience listed on the applicants resume, but where Employer only required two years of experience. Willy Leon Photographers , 94-INA-224 (May 25, 1995).

The employer properly rejected U.S. workers for failure to meet the stated, actual minimum requirements for the job. Star Cream Restaurant , 90-INA-584 (Aug. 11, 1993); Tish, Inc. , 92-INA-325 (July 19, 1993); Microland Electronics Corp. , 92-INA-386 (July 28, 1993); International Financial Sys., Ltd. , 92-INA-56 (June 17, 1993); Goose Down U.S.A., Inc. , 92-INA-227 (May 27, 1993); O. Thompson Co. , 91-INA-350 (May 26, 1993) (labor certification granted where the U.S. worker did not possess required experience and where the CO questioned the alien's qualifications in the FD but not in the NOF); The Cherokee Group , 91-INA-280 (Nov. 4, 1992); Bert Chow Dental Ceramic Lab , 91-INA-285 (Oct. 31, 1992) (U.S. worker no experience in a core duty of working on ceramic or porcelain dental prosthetics); A.C. Custom Duct , 91-INA-88 (Aug. 21, 1992); Bank of Am. , 91-INA-233 (Aug. 4, 1992); T & R Elevator Co. , 91-INA-176 (Aug. 11, 1992) (U.S. applicant falsified his resume); Verifone, Inc ., 91-INA-98 (July 9, 1992); Rena Box Packaging, Inc ., 91-INA-197 (July 16, 1992); University of North Carolina , 90-INA-422 (June 9, 1992); Coalition Management Training Co ., 91-INA-132 (June 19, 1992); Paradise Produce Inc ., 90-INA-463 (Apr. 30, 1992).

Employer properly rejected U.S. applicants as "[m]ere general experience in the particular field of endeavor is not necessarily sufficient where it is clear that the applicant cannot perform all the job duties." Taiwan Imports , 90-INA-213 (Feb. 5, 1992). See also Eastern Int'l Impex Corp. , 91-INA-130 (May 8, 1992).

The employer properly rejected an applicant for the job of production manager where the applicant's experience was in food distribution, not food production, as required by the employer in the ETA-750. El Centro Foods/Pizzaman , 92-INA-330 (July 12, 1993).

Although driving and a good driving record were not stated requirements for plumbing position, because Employer consistently emphasized the residential nature of the work environment and the individual "troubleshooting" aspects of the job, Employer could reasonably have expected such to be an implicit requirement for the position. Saturn Plumbing , 92-INA-194 (Feb. 3, 1994).

One panel held that rejection of a U.S. worker for lack of experience in a stated job requirement is proper if it is a "'key duty'" as opposed to a "minor duty which can be learned by someone . . . through a quick orientation once hired for the job." Thus, if a job duty does not fall within the "minor duty" exception, and it is not unduly restrictive, then the employer may properly reject a U.S. worker for failure to meet this requirement. Marie M. Runyon , 91-INA-380 (Mar. 31, 1993).

The Board (per Judges De Gregorio, Glennon, Litt, and Williams) has recently held in a plurality opinion that a CO may not deny labor certification under § 656.24(b)(2)(ii) on grounds that a U.S. worker may meet a job's stated requirements through a combination of education, training, and experience where the job's requirements are unchallenged. The Board reasoned that, to hold otherwise, would "require an employer . . . to judge job applicants on the basis of all possible combinations of education, training, and/or experience that a CO might consider qualifying . . .." The Board then concluded that there is no requirement "for a CO substituting, after the fact, his/her own judgment for Employer's job requirements, and then penalizing the Employer for having acted without regard to that judgment." Bronx Medical and Dental Clinic , 90-INA-479 (Oct. 30, 1992) (Judge Romano concurred to stated that § 656.24(b)(2)(ii) does not set forth a separate standard except in regard to any work experience requirement. Judges Brenner, Groner, and Guill concurred in the result only and reasoned that the CO may challenge the rejection of U.S. workers under § 656.24(b)(2)(ii) but he or she has the burden of showing that the "U.S. applicant's qualifications . . . specifically compensate for the failure to meet the stated requirements and therefore enable the applicant to perform the employer's job." Judge Clarke dissented to state that the Act is intended to protect U.S. workers and the burden, therefore, should be placed on Employer to establish that each U.S. worker was rejected for lawful, job related reasons under 20 C.F.R. § 656.24(b)(2)(ii). Seealso Dearborn Pub. Sch. , 91-INA-222 (Dec. 7, 1993)(en banc); Pryorson, Inc. , 92-INA-384 (July 28, 1993); St. Francis De Sales Sch. , 92-INA-284 (July 1, 1993); Klaxton Enter. , 91-INA-180 (Nov. 24, 1992); Princeton Information, Ltd. , 91-INA-116 (Nov. 24, 1992); Plastikon Indus. , 91-INA-169 (Nov. 5, 1992); American Tel. & Tel. Co. , 91-INA-225 (Nov. 5, 1992); International Multifood, Inc. , 91-INA-165 (Oct. 30, 1992).

Where applicant has an AA degree in Journalism and part-time experience which may relate to the experience required for the job, she does not meet the minimum requirement of a BA degree in Journalism. Suma Fruit Int'l USA, Inc., 91-INA-47 (Feb. 3, 1993). She also does not have the "substantial relevant experience" which would cause Employer to investigate further her credentials. Quality Inn Rainbow Bridge at the Falls, 93-INA-7 (Apr. 6, 1994). Bloomberg, L.P. , 94-INA-619 (Jul. 30, 1996)

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

Where an applicant's resume shows a broad range of experience, education, and training that raises a reasonable possibility that the applicant is qualified, although the resume does not expressly state that he or she meets all the job requirements, an employer bears the burden of further investigating the applicant's credentials. Ceylion Shipping, Inc. , 92-INA-322 (Aug. 30, 1993); Executive Protective Serv., Inc. , 92-INA-392 (July 30, 1993); Messina Music, Inc. , 92-INA-357 (July 20, 1993); M.D.O. Dev. Corp. , 92-INA-326 (July 19, 1993); Cracovia Stoneware , 92-INA-342 (July 2, 1993); Adam's Garage , 91-INA-357 (June 29, 1993); Rasheed Ghani, M.D. , 92-INA-296 (June 2, 1993); Western Steak House , 92-INA-235 (June 2, 1993); Vertex Business Sys., Inc. , 92-INA-157 (June 2, 1993); The Medical Camera Studio, Inc. , 92-INA-168 (Mar. 18, 1993); Star Office Supply Co. , 92-INA-42 (Mar. 17, 1993); Lord Michel Originals, Inc. , 92-INA-164 (Mar. 16, 1993); Pinky Originals, Inc. , 92-INA-32 (Mar. 3, 1993); M.J.M. Ecua Corp. , 92-INA-63 (Feb. 18, 1993); Suma Fruit Int'l USA, Inc. , 91-INA-47 (Feb. 3, 1993); Stone Craft Properties , 91-INA-294 (Jan. 29, 1993); Dr. Cyrus Sosnay , 91-INA-315 (Jan. 29, 1993); British Thermal Sys., Ltd. , 91-INA-274 (Jan. 6, 1993); Quantum Medical Laboratories , 91-INA-375 (Dec. 28, 1992); D & K Drive-in , 91-INA-383 (Dec. 11, 1992); Harding Lawson Assoc. , 90-INA-457 (Dec. 11, 1992); Dearborn Pub. Sch. , 91-INA-222 (Dec. 11, 1992); Park Hill Assoc. , 90-INA-212 (Dec. 9, 1992); Vector Aeromotive Corp. , 91-INA-293 (Nov. 2, 1992); Baker Boy, Inc. , 91-INA-270, 272 (Oct. 5, 1992); Obermeyer Ski Wear , 91-INA-268 (Aug. 14, 1992); Hankook Communications Found., Inc. , 91-INA-105 (May 13, 1992); Telesca-Heyman, Inc. , 91-INA-140 (May 14, 1992); Johnny Rockets , 90-INA-311 (Dec. 18, 1991); Berg & Brown, Inc. , 90-INA-481 (Dec. 26, 1991). See also Multi-Fineline Electronix, Inc. , 91-INA-42 (Apr. 30, 1992).

The CO properly denied labor certification where the employer declined to interview any of the 197 (or 333 as maintained by the CO) seemingly qualified applicants for the job offered as Architect on grounds that the "employer is a very small operation not having the resources or manpower or time to interview all the applicants . . .." The panel noted that this argument had a "certain refreshing novelty", but was contrary to the purpose of the Act. H.L. Walker & Assoc. , 92-INA-328 (June 2, 1993). See also Nancy Ltd. , Case No. 89-2257-CIV-TES (S.D. Fla. 1989), aff'd , 946 F.2d 904 (11th Cir. 1991) (reversing the Board's holding in Nancy Ltd. , 88-INA-358 (Apr. 27, 1989)(en banc)).

An employer may reject an applicant who does not meet unchallenged job requirments . See Bronx Medical and Dental Clinic , 90-INA-479 (Oct. 30, 1993) (en banc). The Employer rejected 1 applicant for the position of sample maker, children's clothing because he had 2 years experience as a sample maker but not as a sample maker in children's clothing. The Board determined the requirement of 2 years experience in the position of sample maker, children's clothing, as unduly restrive. Accordingly, Employer unlawfully rejected the applicant. Florinda Fashions, Inc ., 94-INA-458 (Oct. 13, 1995).

A. Regulatory provision

no new cases

B. Burden on CO to explain why applicant is qualified

no new cases

C. Persuasiveness of CO's explanation

no new cases

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

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

no new cases

F. Reasonable period of on-the-job training

1. Applicant capable of performing duties with nominal training

Employer, a medical center, sought certification for the position of accountant and required 2 years experience in accounting or finance and a B.S. in Accounting or a business related major. Receiving 14 applications in response to its advertisement, 1 applicant was rejected due to lack of experience in the software programs used by Employer (Microsoft, Lotus 123, Excel 123 and Medisoft) and for having no previous experience in the medical facilities and no medical billing experience. The CO issued a NOF proposing to deny certification because Employer had not required applicants to have knowledge of specific software programs, medical clinic experience, or 2 years only in the position offered. In rebuttal, Employer contended, inter alia, that the applicant was unfamiliar with the software programs used by Employer and Employer lacked the resources to train him. The CO denied certification and the Board affirmed. As for the lack of experience with the computer software, the Board noted that the applicant's resume did show experience in Lotus 123 and many other accounting programs, the completion of a course in computerized accounting and the use of computers for over 6 years. Citing Mindcraft Software , Inc. , 90-INA-328 (Oct. 2, 1991) the Board reasoned that the applicant met the Employer's minimum alternative requirements and could perform in the position with nominal training. St. George's Medical Ctr. , 95-INA-111 (Jan. 29, 1997)

2. Burden of proof on CO

no new cases

3. Illustrative cases

Where applicant's resume includes a broad range of experience in various aspects of the main requirements for the position, it is difficult for Employer to contend that two aspects of the job, listed under "special requirements", are essential core duties that cannot be quickly learned in on-the-job training by someone with the applicant's experience. The Weck Corp. d/b/a/ Gracious Home , 93-INA-35 (Mar. 8, 1995).

Where two applicants indicated that they had training in CPR, employer could not reject them because neither had current certification. The panel noted that CPR certification had to be renewed yearly and would not require too much effort for either applicant to become certified. United Rehabilitation Serv. , 93-INA-253 (Apr. 13, 1995).

Applicant for the position of Cook, Mexican Style Food, with 10 years experience as Head Cook and experience specializing in preparation of Mexican food was improperly rejected where Employer claimed that the applicant had no experience cooking charbroiled chicken. The panel concluded that it was reasonable to assume that the applicant could learn the particular cooking technique in a reasonable amount of time given her 10 years experience as a cook. El Pollo Grande Restaurant , 94-INA- 181 (Apr. 26, 1995).

IV. Particular grounds for rejection

A. "Able" worker

Certification granted where employer pre-school contacted references of interested U.S. applicant and where prior employer stated he "chose not to" re-hire the U.S. worker although the position remained open. Rejection of the U.S. applicant held to constitute lawful and job related. The Broadway Baptist Child Dev. Ctr. , 92-INA-405 (Sept. 30, 1993).

B. Alien more qualified

Labor certification properly denied where employer admitted that U.S. applicant meets minimum education and experience requirement of the position, but that "taking into consideration suitability, alien has the advantage . . ." The fact that the alien may be better qualified is not a lawful, job-related reason for rejecting a qualified U.S. applicant. V.I. Water and Power Auth. , 93-INA-322 (Oct. 11, 1994).

Employer required a B.S. in Mechanical Engineering and either four years experience in the job (Mechanical Engineering Consultant), or four years experience in the related occupation of echanical Engineer. The CO incorrectly concluded that under §656.24(b)(2)(ii) a U.S. applicant was qualified for the job by virtue of his electrical engineering experience. Randolph- Rand Corp. , 93-INA-70 (Dec. 2, 1994)(citing Bronx edical and Dental Clinic , 90-INA-479 (Oct. 30, 1992)(en banc).

Labor certification properly denied for position of "high fashion hair and make-up designer" where a U.S. applicant met the minimum requirements designated by the Employer but was not a "household name" with "a proven track record of the highest quality in leading high-fashion publications" as was Alien. Network Representatives, Inc. , 94-INA- 123 (April 14, 1995).

An assertion that the alien is more qualified does not constitute a lawful, job related reason for rejection of a U.S. worker. Roman Catholic Diocese of Brooklyn , 90-INA-453 (Apr. 13, 1992); Gabriel Rubanenko, M.D. Inc. , 92-INA-370 (Dec. 22, 1993); State of California, Bd. of Equalization , 93-INA- 42 (Dec. 7, 1993).

Where Employer applied for alien labor certification to fill the position of "Technical Director/ Lab Manager, where Employer rejected a U.S. applicant for purportedly failing to have experience in directing an organic/inorganic laboratory or establishing laboratory protocols and "QA-QC procedures," but where this requirement was not listed in ETA 750A or job listing, then Employer improperly rejected the applicant because an employer may not reject a qualified U.S. applicant merely because an alien is more qualified. Spectrum Analytical, Inc, n.1 95-INA-324 (Jan. 19, 1997)

C. Artistic ability

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

no new cases

2. Vague or unsupported statement of deficiency in talent

Where an Employer rejects an applicant for the position of Dressage Horse Trainer on the basis, among others, that he utilized the freestyle technique rather than the traditional technique of dressage, and where the Employer's application for labor certification lists no requirement that experience in a particular technique of dressage was required, then labor certification was properly denied because where the job offer requires talent, an employer may not reject U.S. applicants based upon vague, undisclosed or general deficiencies. See Anderson-Mraz Design , 90-INA-142 (May 30, 1991). Fritz R. Kundrun , 94-INA-240 (Jan. 10, 1996).

3. Position not requiring production of art works

no new cases

D. Availability of applicant

1. Rejection proper if lack of availability is documented

Employer applied for certification for the position of Caretaker. The Employer rejected 1 applicant, saying that he "would not commit to giving up his own business." A 2d applicant was rejected because "he stated that he has his own full-time business and can only do piecemeal work." Disagreeing with Employer, the 1st applicant asserted that "he was told that the job was filled and was not as described. The 2d applicant stated that Employer only contacted him after he had called and left 2 messages with Employer and mailed her references. The Employer informed him that he was not hired because he had his own business. The CO denied certification and the Board affirmed. Citing Monica urphy , 91-INA-281 (Aug. 17, 1992) (holding that an employer unlawfully rejects a U.S. worker as unavailable, without first offering the job to the applicant, on grounds that the worker was presently employed), the Board held that the applicant could not reject the applicants based on the assumption that they were uninterested without first offering them the position. Dr. Donna Rohlf, Ph.D. , 95-INA-148 (Nov. 21, 1996).

Applicant improperly rejected as unavailable where employer only asserted that the applicant currently lives out of state. Celina's Deli , 93-INA-247 (Jun. 14, 1994).

It was improper for an employer to reject U.S. applicants as unavailable prior to offering the job where, as the panel noted, one applicant was "in technical school at the time of the initial consideration, but he could have left technical school and accepted the job, had it been offered." The other applicant "attempted to negotiate employment terms during the initial telephone contact" but stated that he would have accepted the job had it been offered. Warmington Homes , 91-INA-237 (Mar. 22, 1993).

The employer unlawfully rejected a U.S. worker as unavailable, without first offering the job to the applicant, on grounds that the worker was "presently employed". The panel noted that there was "no evidence that the applicant is unwilling or unable to change jobs". Monica Murphy , 91-INA-281 (Aug. 17, 1992).

An employer properly rejected two applicants who were neither U.S. citizens nor lawful, permanent residents as these applicants were not "available". Lotus Corp ., 91-INA-203 (July 28, 1992).

Labor certification was granted and a U.S. worker was properly rejected for the job of live-in Child Monitor/Housekeeper where she would bring her own children with her while caring for Employer's children and, "[a]lthough the advertisement did not explicitly mention the requirement that there be no additional small children competing for the Child onitor's attention and ministrations, we believe that a fair reading of the job description reflects the assumption that Employer's child will enjoy the incumbent's full-time attention." The panel noted that Employer's other ground for rejection of the worker, that the applicant was unemployed for a period of time, was not valid. Mrs. Jacki Evans , 92-INA-341 (June 3, 1993).

Labor certification properly denied where admittedly qualified U.S. worker was rejected as unwilling to accept school teaching position immediately, as of March 1991. The panel noted that it is reasonable to conclude that the position was really set to begin in September, the start of the new school year. More determinative, the employer failed to establish that the applicant was unwilling to accept the position as the record contains no evidence that applicant was specifically asked whether she could start immediately. Cincinnati Bd. of Educ. , 92-INA-218 (Oct. 26, 1993).

2. Failure to respond

The only requirement for the position of "Bookkeeper I, Bilingual" was 2 year's experience and 2 applicants "clearly" met that requirement. The Employer's basis for their rejection was inability to contact their references and the applicants' failure to return a phone call. The CO denied certification and the Board affirmed. The Board reasoned that the applicants considered qualified for the position and the Employer's recruitment was not conducted in good faith because both applicants denied having received phone calls. In addition, it reasoned, the Employer's efforts in contacting references through directory assistance without obtaining additional information from the applicants appeared "highly unusual and did not at all afford the U.S. workers applying for the job any opportunity to present their qualifications, credentials, or references." Compare the instant case with H.C. LaMarche Ent., Inc. , 87-INA-607 (Oct. 27, 1988), a seminal case allowing the rejection of U.S. workers who fail to respond to letters offering an interview. Wah Yuan Trading Corp. , 94-INA-507 (Nov. 14, 1996)

3. Applicant who intends also to work another job

no new cases

4. Conflicting hours of employment

no new cases

5. Medical incapacity

no new cases

6. Non-competition clause [NEW]

A panel held that an admittedly qualified U.S. applicant could not be lawfully rejected based on a non-competitive hiring agreement between employer and another employer with whom the rejected U.S. applicant was concurrently seeking employment. The panel noted that the applicant was a prospective employee and not yet an actual employee of both employers. W.F. Amams, Inc. , 93-INA-95 (Jan. 4, 1994).

E. Changed requirements or job description

Labor certification denied where employer's use of the term "human awareness counseling" to mean 6 months experience in "human sexuality awareness" was not patently obvious, nor merely a term of art. The panel found such usage confusing and a failure to clearly describe the minimum experience requirements at the initial recruitment stage. Accordingly, employer's rejection of an otherwise qualified U.S. applicant for lack of 6 months experience in "human sexuality awareness" was unlawful. Fairfield County Bd. of Mental Retardation and Developmental Disabilities , 93-INA- 34 (Apr. 15, 1994).

Labor certification properly denied where prior to review of U.S. workers applications, employer did not distinguish or specify experience in industrial refrigeration systems as opposed to commercial refrigeration systems. Moreover, the DOT description of refrigeration mechanic makes no distinction between industrial and commercial refrigeration experience. Accordingly, employer's rejection of otherwise qualified U.S. workers for lack of unstated industrial refrigeration experience was unlawful. Industrial Refrigeration Inc. , 93-INA-206 (Jul. 6, 1994).

A U.S. worker was unlawfully rejected where the employer intentionally discouraged him by "belittling" his experience and offering less favorable terms and conditions of employment; namely, asking if the U.S. worker would consider a lateral more to a position paying a lower wage rate and indicating that the applicant would have to work 50-55 hours per week as opposed to 40 hours per week as stated on the application for labor certification. Kamashian Eng'g , 90-INA-408 (Feb. 6, 1992).

The employer unlawfully rejected U.S. workers where it merely asserted that a man was preferred for the job and the hours of employment were misrepresented. Manuella Wholesalers, Inc. , 90-INA-482 (Feb. 4, 1992).

A case was remanded "to the CO with instructions to have Employer clarify the minimum requirements for the job and resolve the discrepancies which exists between the job application, job posting and advertisements." Rockingham Ventures , 91-INA-215 (Jan. 6, 1993).

F. Communication skills

1. Poor communication skills, generally

no new cases

2. Applicant's inability to speak English

The Board held on appeal after a Motion to Reconsider that the case should be remanded. The CO failed to consider an Employer's vice president's assertion that an applicant "had a hard time understanding the interviewing officer and, when he answered the questions he, could not bring out his knowledge..." The vice president had further stated that the applicant "could not express ...[himself] in words...," although he was "academically intelligent." The Board disagreed with the CO's finding that a response submitted by the applicant wherein he wrote, "I have experience in civil/stru/soil eng'g...If I was not hired, there might have [sic] someone they thought more appropriate...I got letter [sic]...," demonstrated a command of the English language. The Employer lastly stated that clients in the past have asked for replacements when faced with an employee who cannot speak English well. The Board reasoned that Employer met its burden of demonstrating that the applicant is not qualified for the position of Assistant Civil Engineer. See Spizer, Inc. , 94-INA-383 (Oct. 25, 1995); Impel Corp. , 88-INA-298 (May 31, 1989) (en banc). Testwell Craig Labs of N.J., Inc. , 94-INA-512 (Dec. 2, 1996).

Upholding a CO's denial of labor certification, the Board recently cited Juanito N. Roque , 88-INA-04 (Apr. 5, 1988) (allowing employers to reject applicants on the basis of poor communications skills). The Employer rejected 1 applicant for the position of Pharmacist because of poor communication skills. The Employer argued that the "applicant was unable to comprehend and answer basic questions asked at his interview and that he could not answer questions regarding his short term goals and what he considered his best qualities." However, Employer listed only a B.S. in Pharmacy and a California practitioner's license as requirements for the position. In upholding the denial of certification, the Board agreed with Employer that pharmacists need to be able to speak English. However, the Board reasoned that Employer failed to comply with the CO's request in the NOF that it demonstrate the applicant's lack of qualifications for the position. Looking at all the record evidence, including the applicant's resume showing several years of pharmaceutical employment in the U.S., the fact that the applicant had received a California pharmacy license, and the fact that the applicant had been in the U.S. since 1987, the Board found that the Employer had not met its burden of proof. Save-On Drugs , 95-INA-250 (Jan. 30, 1997).

Upholding a CO's denial of labor certification, the Board recently cited Impell Corp. , 88-INA-298 (May 31, 1989) (placing the burden of proof on employers to demonstrate that an applicant cannot speak English). The Employer rejected 1 applicant for the position of Pharmacist on the basis that he had poor communication skills. The Employer argued that the "applicant was unable to comprehend and answer basic questions asked at his interview and that he could not answer questions regarding his short term goals and what he considered his best qualities." However, Employer listed only a B.S. in Pharmacy and a California practitioner's license as requirements for the position. In upholding the denial of certification, the Board agreed with Employer that pharmacists need to be able to speak English. However, the Board reasoned that Employer failed to comply with the CO's request in the NOF that it demonstrate the applicant's lack of qualifications for the position. Looking at all the record evidence, including the applicant's resume showing several years of pharmaceutical employment in the U.S., the fact that the applicant had received a California pharmacy license, and the fact that the applicant had been in the U.S. since 1987, the Board found that Employer had not met its burden of proof. Save-On Drugs , 95-INA-250 (Jan. 30, 1997).

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

no new cases

G. Conflict of interest

The employer failed to provide a lawful, job related reason for rejection of a U.S. worker where it conceded that the applicant met the requirements of the job but the employer offered an undocumented assertion that "(the applicant's) ownership and operation in a retail business in the same market as Employer which Employer contends the applicant is not likely to sell . . . (will render the applicant) unable to devote himself to Employer's full time job, as well as putting Employer's business as great risk given that (the applicant's) business is a potential competitor". Fashions From India, Inc. , 92-INA-26 (Feb. 4, 1993).

H. Diversion of U.S. worker/alien

The panel reiterated the Board's well established holding that an employer may not hire a U.S. worker for the job offered and then hire the alien for an identical position by asserting multiple openings where only a single opening was listed in the advertisement and ETA-750. Nonetheless, the panel granted certification in this case based on employer's willingness to comply and its statement to the local employment agency that multiple openings were in fact available. Children's Hosp. of Michigan , 93-INA-160 (Jul. 26, 1994).

Denial of certification vacated and case remanded to the CO where there were two aliens, two openings were advertised and the CO found that only one U.S. worker was unlawfully rejected. Garibay Maintenance , 92-INA-399, 400 (Oct. 27, 1994).

Labor certification was properly denied where the employer indicated the availability of only one opening for the petitioned position which was subsequently filled by a U.S. worker. Premark Int'l , 91-INA-167 (May 18, 1992). See also Casa San Miguel, Inc. , 92-INA-73 (July 2, 1993) (employer could not assert multiple openings in its rebuttal where the ETA-750 and advertisements listed only one opening); IMT Italian Marble & Tile Co. , 91-INA-179 (Dec. 11, 1992) (employer's assertion of multiple job openings on appeal not sufficient where a single opening was listed in the advertisements and ETA-750); Sam's Exxon , 91-INA-362 (Dec. 11, 1992) (employer determined that U.S. worker was overqualified and offered higher paid position but panel held improper diversion) ; Aloha Airlines , 91-INA-181 (June 1, 1992).

Labor certification was improperly denied and a remand was necessary because the panel stated that it was "basically unfair for the CO to have consolidated these 13 cases and then to have denied all of the certification applications because three potentially qualified U.S. worker(s) were not hired." Without assessing the merits of the rejections of the U.S. applicants, the panel remanded the case "to the CO with instructions to determine each case separately and to allow Employer an opportunity the readvertise the jobs with (the) actual minimum requirements for each position." The Budd Co. , 91-INA-204, 205, 209-214, 217, 219, 220, 92-INA-207, 208 (Aug. 4, 1993). See also Joel Atlas Skirble & Assoc. , 94-INA-373 (May 25, 1995).

I. Experience

1. Applicant with fewer years of experience than required

no new cases

2. Applicant with only general or related experience

no new cases

3. Applicant possessing only alternative experience

no new cases

J. Job duties, generally

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

no new cases

2. Ability to perform main job duties

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

Denial of labor certification inappropriate where the CO completely disregarded the employer's detailed discussion why the U.S. applicant was unable to perform the job duties despite the qualifications listed on his resume. The panel concluded that employer had established a prima facie case for rejecting the applicant. Once employer satisfied its burden of presenting an objective detailed basis why, notwithstanding the apparent qualifications listed on his resume, the applicant was not capable of performing the job duties, the CO could have disputed this in various ways, including sending the applicant a follow-up questionnaire, and issuing a second NOF disputing employer's statements. LA Dye & Print Works, Inc. , 93- INA-223 (Apr. 13, 1995).

The only requirement for the position of "Bookkeeper I Bilingual," was 2 years of experience and 2 applicants "clearly" met that requirement. The Employer rejected these applicants, arguing that it was unable to contact their references and that the applicants had failed to return a phone call. The CO denied certification and the Board affirmed. It reasoned that the applicant was not, based on information obtained from references or objective testing during the interview, demonstrably incompetent to perform the main duties of the position such that Employer could reject the applicant even though they met the stated requirements. See First Michigan Bank Corp, 92-INA-256 (July 28, 1994); Quality Inn , 89-INA-273 (May 23, 1990). Wah Yuan Trading Corp. , 94-INA-507 (Nov. 14, 1996).

The Board held on appeal after a Motion to Reconsider that the case should be remanded. The CO failed to consider an Employer's vice president's assertion that an applicant "had a hard time understanding the interviewing officer and, when he answered the questions he, could not bring out his knowledge..." The vice president had further stated that the applicant "could not express ...[himself] in words...," although he was "academically intelligent." The Board disagreed with the CO's finding that a response submitted by the applicant wherein he wrote, "I have experience in civil/stru/soil eng'g...If I was not hired, there might have [sic] someone they thought more appropriate...I got letter [sic]...," demonstrated a command of the English language. The Employer lastly stated that clients in the past have asked for replacements when faced with an employee who cannot speak English well. The Board reasoned that the applicant may be, based on information obtained from references or objective testing during the interview, demonstrably incompetent to perform the main duties of the job such that Employer could reject him even though he met the stated requirements. See First Michigan Bank Corp, 92-INA-256 (July 28, 1994) ; Quality Inn , 89-INA-273 (May 23, 1990). Testwell Craig Labs of N.J., Inc. , 94-INA-512 (Dec. 2, 1996).

An applicant was ostensibly qualified for the position of "Tile Mason" but the Employer claimed initially that the applicant was uninterested in the work location. However, the applicant claimed that "I asked...[Employer] about the location of the job and told her that I would be able to work anywhere." The applicant further claimed that he was uninterested in the position because the Employer's agent informed him on the telephone that the wage would be $12.00 per hour even though the advertised wage was $26.54 per hour. In rebuttal to the NOF Employer claimed that the Employer's agent informed the applicant that the advertised salary "was in accordance with Department of Labor regulations although Employer had initiated the application with a starting salary of $12.00, and therefore, would be [sic] the ultimate decision of Employer as to the specific salary..." The Employer claimed that its agent was "merely providing an administrative albeit tedious and time consuming, function of facilitating the prospective applicant to meet with Employer..." The CO denied certification and the Board affirmed. The Board held that the applicant was not, based on information obtained from references or objective testing during the interview, demonstrably incompetent to perform the main duties of the job such that Employer could reject him even though he met the stated requirements. It noted that the agent's initial contact was designed to discourage the applicant from pursuing the employment in question. See First Michigan Bank Corp, 92-INA-256 (July 28, 1994) ; Quality Inn , 89-INA-273 (May 23, 1990). Striano Contracting Corp. , 94-INA-509 (Nov. 14, 1996).

Employer sought labor certification for the position of "Monitor, Sleep-In, Household" and the state labor agency determined that one U.S. applicant was qualified for the position. However, Employer failed to either contact the applicant or submit a recruitment report (even though Employer did submit a letter addressed to the applicant and a narrative recounting its recruitment efforts concerning another applicant). The CO denied certification and the Board affirmed. The Board reasoned that the applicant was not, based on information obtained from references or objective testing during the interview, demonstrably incompetent to perform the main duties of the job such that Employer could reject her even though she met the stated requirements. See First Michigan Bank Corp, 92-INA-256 (July 28, 1994) ; Quality Inn , 89-INA-273 (May 23, 1990). Cristina Clark , 94-INA-508 (Oct. 31, 1996).

The only requirement for the position of "Bookkeeper I, Bilingual," was 2 years of experience and an applicant was "ostensibly" qualified for the position. The Employer rejected her, arguing that the applicant expressed a lack of interest. The applicant denied that she was uninterested and the CO denied labor certification. The Board affirmed, reasoning that the applicant was not, based on information obtained from references or objective testing during the interview, demonstrably incompetent to perform the main duties of the job such that Employer could reject the applicant even though she met the stated requirements. See First Michigan Bank Corp., 92-INA-256 (July 28, 1994) ; Quality Inn , 89-INA-273 (May 23, 1990). Wah Yuan Trading Corp. , 94-INA-507 (Nov. 14, 1996).

Employer sought labor certification for the position of live-in domestic, its duties including general "housework, laundering, cleaning, cooking and child care." The Employer required 3 months of experience for the position and 1 of 4 applicants met that job requirement. The Employer argued that the 1 qualified applicant was currently operating a day care business "that she was unwilling to give up." However, the applicant denied the Employer's assertion as "an absolute lie" and instead stated that she had told the Employer that she would be willing to give up her child care business for a live-in position of $300.00 per week. The CO denied certification and the Board affirmed. It reasoned that the applicant was not, based on information obtained from references or objective testing during the interview, demonstrably incompetent to perform the main duties of the job such that the Employer could reject the applicant even though she met the stated requirements. See First Michigan Bank Corp, 92-INA-256 (July 28, 1994) ; Quality Inn , 89-INA-273 (May 23, 1990). Jane R. Fuerst , 94-INA-506 (Nov. 14, 1996).

Employer filed an application for labor certification for the position of "Elementary School Teacher" and the duties included the "Sacramental preparation of students." The Employer required one year experience in the job offered. An alternative to the requirement of one year experience in the job offered was one year experience in the related field of "Teacher." The Employer rejected 6 applicants on the basis that they lacked experience necessary for the Sacramental preparation of the students. The CO denied certification and the Board affirmed. The Board reasoned that Employer could not reject 6 applicants on the basis that they lacked experience in the "Sacramental Preparation of Students." Their resumes demonstrated that they met the alternative minimum requirement of one year as a teacher. The applicants were not, based on information obtained from references or objective testing during the interview, demonstrably incompetent to perform the main duties of the job such that Employer could reject them. See First ichigan Bank Corp, 92-INA-256 (July 28, 1994) ; Quality Inn , 89-INA-273 (May 23, 1990). Sacred Heart Sch. , 94-INA-510 (Nov. 14, 1996).

Employers may reject applicants who meet the stated minimum requirements but is nonetheless demonstrably incomepetent to perform the main duties of the job, based on information obtained from references or objective testing during interview. First ichigan Bank Corp. , 92-INA-256 (July 28, 1994). Employer rejected 1 applicant for the position of software research associate because the applicant had not already (although he was currently) taken a course in information management and because he "had extremely little experience in the field and he has he has no experience in developing utility program." However, the applicant's resume suggested that he had over 9 years of experience in information management, including experience as an application programmer, system administrator, and college teacher; he had experience writing soft wareand know multiple programming languages, inlcuding assembly language and the applicant had a Master's Degree in Electrical engineering from a chinese universityand is currently working on a doctorate in comptuter science. Certification was proplerly denied. Software Sys. Technology, Inc ., 94-INA-299 (June 27, 1995). See also Worldwide Seafood Imports, Ltd. , 94-INA-526 (Aug. 1, 1996).

b. Illustrative cases

Labor certification denial proper where Employer improperly rejected two U.S. workers because they did not have experience performing the job duties even though they each met the alternative experience requirement listed by Employer on the application. Unico Eng'g Associates , 93-INA-560 (April 14, 1995).

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

Employer applied for certification for the position of Cook, Domestic, Live-in or Live-out. The Employer 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 the 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 and previous experience listed on the ETA 750A indicated that Alien had performed similar work for over two years. The CO denied certification and the Board affirmed. Citing National Inst. for Petroleum and Energy Research , 88-INA-535 (Mar. 17, 1989) (en banc) and Integrated Software Sys., Inc. , 88-INA-200 (July 6, 1988), the Board noted that "experience in the job offered" includes experience in the job duties as described and not just experience in the job title. Mr. & Mrs. Marc Cohen , 95-INA-150 (Dec. 5, 1996).

K. Knowledge of or familiarity with field

1. Subjective nature of requirement; strict scrutiny applied

no new cases

2. Applicant's possession of required knowledge

no new cases

3. Currency of knowledge

Where Employer submits no documentation supporting its claim that applicant for the position of landscape gardner is unqualified because he has not worked for 3 years, then labor certification was properly denied because employers cannot reject an applicant for not possessing current knowledge without documentation. Ernie Vejar Landscape aintenance , 94-INA-189 (July 19, 1995).

L. Lack of interest

1. General lack of interest

Employer's unsubstantiated assertions that a U.S. worker was not interested in a managerial position is insufficient to establish lawful job-related reasons for rejecting the applicant where this is contradicted by the applicant. Topline Fashion , 94-INA- 398 (Apr. 19, 1995).The Employer unlawfully rejected a U.S. worker on grounds that the applicant "was pursuing another position which paid significantly more than the job at issue. . .." The panel noted that there was no evidence of record to indicate that the job was offered to the applicant and rejected. United Cerebral Palsy of the Island Empire, Inc. , 90-INA-527 (Aug. 19, 1992). See also Composite Research, Inc. , 91-INA-177 (Oct. 1, 1992).

Employer's only requirement for the position of "Bookkeeper I Bilingual," was 2 year's experience. One applicant was "ostensibly" qualified for the position, although Employer asserted that the applicant was rejected because of lack of interest. The applicant denied that she was uninterested. The CO denied the Employer's application for certification and the Board affirmed. It reasoned that the applicant was considered qualified for the position and the Employer's recruitment was not conducted in good faith. Wah Yuan Trading Corp. , 94-INA-507 (Nov. 14, 1996).

Where an applicant has 6 years of experience applied for a job that requires 2 years, where Employer states that he was rejected because applicant said that he "realized the job was too distant from his residence," then labor certification was properly denied because there is no documentation showing that Employer was ever contacted, was offered the job, and showed no interest in the job, or declined the job. Keiter Constr. Co. , 94-INA-188 (July 17, 1995).

Where Employer rejects 1 applicant for the position of landscape gardner on the basis that he did not show enthusiasm, then labor certification was properly denied because such a basis is not lawful without documentation. Ernie Vejar Landscape Maintenance , 94-INA-189 (July 19, 1995).

2. Applicant's long-term career goals

Employer cannot assume that an applicant is not interested in long-term employment because his present job is in a different field. Tahoe Sierra Serv. , 93-INA-504 (Nov. 29, 1994).

The employer unlawfully rejected a U.S. applicant for "'fear he would not be long-term (with) intensive training and possibility of conflict of interest" and asserting that the applicant "'does not appear to have long term job/craft in mind; and I see no talent towards the end of working (with) his hands, creatively." Roger Bowman Upholstering , 91-INA-163 (May 18, 1992).

An employer may not reject a U.S. worker where the employer filled the petitioned position with a U.S. worker who quit three days later and Employer never contacted a second U.S. worker who applied for the job. Statice Landscape and Design , 91-INA-60 (May 22, 1992).

An employer unlawfully rejected a U.S. worker where he stated that "it became very clear to us that this potential employee would not commit to working for us beyond the next ad that appeared in the newspaper offering a better job." Kem Medical Products, Corp ., 91-INA-196 (June 30, 1992). See also Cinque Terre Restaurant , 92-INA-43 (July 2, 1993); Casey Spung Sys., Inc. , 91-INA-243 (July 2, 1993) (employer cannot merely assume that the applicant "will not stay in the job for a long period of time"); Baker Boy, Inc. , 91-INA-270, 272 (Oct. 5, 1992) (the employer "may not make unilateral assumptions concerning an applicant's interest" but has an "affirmative duty" to investigate the applicant's credentials"); Oak Park Medical Clinic , 91-INA-28 (July 15, 1992).

Labor certification was properly denied where the employer rejected a U.S. worker, whom it conceded was qualified and willing to accept the job, "but was not hired because she was not interested in a permanent bookkeeping position." Chuang, Chen, Fan & Pai Accountancy Corp. , 92-INA-209 (June 1, 1993).

Labor certification was properly denied where the employer "merely assumed that (one U.S. applicant) was lying about his many years of experience and that (another applicant) would leave as soon as he received an offer in the film-making field." The panel concluded that these assertions were not supported in the record. Roy Rogers Restaurant , 92-INA-288 (July 1, 1993).

M. Overqualified U.S. applicant

Labor certification denied where applicant rejected as "overqualified". oreover, the applicant's failure to appear at a post-NOF interview scheduled 2-3 weeks after the initial recruitment does not document that the applicant was uninterested in the position at the time of initial recruitment. Jiffy's Pizza & Pasta , 93-INA-485 (Jun. 3, 1994). See also Brown Bros. Harriman & Co. , 94-INA- 19 (Mar. 13, 1995)(employer may not reject an applicant solely because the applicant is overqualified for the job); Mathew Sebastian , 94-INA-194 (Apr. 19, 1995)(employer may not reject applicant for Live-in Housekeeper position based on feeling that as a college graduate, she appeared overqualified); Pop's Homestyle Cooking , 94-INA-138 (Apr. 28, 1995).

An employer may not reject a U.S. worker solely on grounds that the worker is overqualified. Downtown Senior Ctr. , 91-INA-119 (May 18, 1992). See also Welded Tube Co. of Am. , 92-INA-54 (Jan. 5, 1994); Jason's Enter., Inc. , 92-INA-362 (Dec. 17, 1993); Romans Garment Indus., Inc. , 93-INA-40 (Sept. 30, 1993); P.K. Smith, Inc. , 92-INA-343 (July 2, 1993); Tsinias Enter. L.T.D. , 92-INA-229 (May 26, 1993); Stan Shaw Corp. , 92-INA-76 (Mar. 31, 1993); B & B Richmond Constr. Corp. , 92-INA-12 (Jan. 29, 1993); Belinda Herrara , 91-INA-332 (Oct. 1, 1992); The Oyster Point , 91-INA-257 (Aug. 5, 1992) (the panel further held that belated, unsuccessful attempts to recontact the applicant do not cure the initial improper rejection).

Where employer rejected two U.S. applicants for being overqualified, without further discussion, employer has rejected U.S. applicant for reasons other than job related causes. Employer may not, without more, reject U.S. applicant for being overqualified. See World Bazaar , 88-INA-54 (June 14, 1989) (en banc). Greg Hoey, Inc ., 94-INA-306 (Aug. 22, 1995).

Employer may not reject U.S. applicant solely because they are overqualified and employer fears that they may not stay in the position for long. World Bazaar, 88-INA-54 (June 14, 1989) ( en banc) .

Rejection of an applicant because he/she is overqualified for the job is not a lawful job related reason for rejecting him/her. Our Lady of Good Counsel Elementary Sch. , 94-INA-262(June 9, 1995).

D&G Landscpaing , 94-INA-542 (Mar. 5, 1996) (denying certification where Employer rejected an applicant for the position of landscaper where the an applicant was rejected because he was unqualified and because Employer failed to establish that the Applicant would not take the job); IPF Int'l , 94-INA-586 (July 24, 1996); National Distributors Lifting Sys. , 95-INA-45 (Oct. 2, 1996) (finding no good faith recruitment for the position of hoist and lift equipment maintenance technician where Employer conceded that he rejected an applicant who wanted the position on the basis that he would be looking for another position while working for Employer and the on the basis that Employer did not want to spend the time and money training someone who would be looking elsewhere for employment because such assertions must be documented).

It is well settled that an employer cannot reject U.S. applicants soley because the applicant is overqualified. See World Bazaar , 88-INA-54 (June 14, 1989) (en banc). The Employer, applying for certification for 2 positions, rejected 2 applicants solely because they were overqualified. As a consequence, labor certification was properly denied. Upholstery Creations d/b/a Chairs Plus Int'l , 94-INA-470&471 (Aug. 21, 1995).

N. Personal interview requirement

Employer unlawfully rejected U.S. worker for failing to appear at an interview where no documentation was submitted to show that an interview had been scheduled. CMC Quality Concrete , 93- INA-108 (Oct. 25, 1994).

The employer unlawfully rejected U.S. workers where it stated that interviewing seemingly qualified applicants would be "inconvenient" or "too expensive" without explanation. Roots Constr., Inc. , 90-INA-575 (Apr. 8, 1990).

An employer's refusal to pay a qualified U.S. applicant's travel expenses constitutes an attempt to discourage that applicant, as most qualified applicants "would not accept such a position sight unseen." Hotel Group of Am. , 89-INA-195 (Mar. 10, 1992).

Citing Warmtex Enter. , 88-INA-403 (June 20, 1989), aff'd , Warmtex Enter. v. Martin , Case No. 91-55051 (9th Cir. Jan. 10, 1992) (1992 U.S. App. LEXIS 144), one panel held that an employer may not require an in-person interview without offering reimbursement for travel expenses, at least for a professional or executive level position. An employer has the option of either paying the travel expenses, or using other means of travel expenses, or using other means such as a telephone interview to determine whether an applicant who appears promising from his resume is qualified for the job. Hotel Group of Am. , 89-INA-195 (Mar. 10, 1992). See also Microland Electronics Corp. , 92-INA-386 (July 28, 1993); CTS , 91-INA-175 (June 19, 1992).

One panel has held that the rejection of a U.S. worker through a telephone interview, as opposed to an in-person interview, is permitted. This is particularly true in determining "whether the ability to communicate in English exists" or "to establish the unwillingness or inability to provide required personal references or confirmation of educational qualifications." NTU Circuits, Inc. , 91-INA-92 (Apr. 1, 1992).

The employer properly rejected a U.S. worker where he "neither appeared for the scheduled interview, nor sought a change in the schedule . . .." R. Gary oser , 91-INA-27 (Jan. 19, 1993).

Labor certification was properly denied where a U.S. applicant attempted to schedule an interview for the job but was told first that it was filled, then he was told that he could speak to another individual with Employer who never returned his phone calls. C.M. Data, Inc. , 91-INA-246 (May 14, 1993).

O. Poor references

Employer must document poor references in order to reject an applicant for lawful, job related reasons. CuttingCorners, Inc. , 87-INA-376 (April 5, 1988). Domenico Marino , 94-INA-245 (July 19, 1995).

While employer may reject applicant for poor references, the inability to obtain references does not amount to poor references. Norman Indus. , 88-INA-202 (July 29, 1988). Jolin Realty , 94-INA-294 (June 27, 1995).

Some qualifications, good references being one, are so inherently requisite for a job that they not be stated expressly in te job description. See Alfredo's Restaurant #2 , 90-INA-70 (June 12, 1991). Here, an applicant submitted what appeared to be a highly favorable reference. Nonetheless, Employer rejected him, saying in an an unsigned document that he was unable to contact references. Employer's counsel additionallly stated that 1reference said he could not give a positive character reference for the applicant and stated that Employer "learned specifically that the applicant was not willing to take instructions" and "often performed his duties disregarding his employer's wishes." The Board held that the Employer's counsel's statements were inadequate to overcome the written favorable reference submitted by the applicant. Androscoggin Jr. - Sr. Camp for Boys , 94-INA-216 (Nov. 3, 1995).

P. Prior interview

no new cases

Q. Questionnaires and tests

Test given to alien as well as U.S. applicant is valid where test was designed by an accounting expert with prior experience devising such tests, and the expert indicated the foundation for the test questions and why a 70% score was a reasonable cutoff for minimally qualified applicants. Accordingly, U.S. applicants failing the test were found lawfully rejected. Commercial Property Management , 93-INA-163 (Aug. 25, 1994).

Panel held that notwithstanding decisions such as South of France Restaurant , 89-INA-68 (Feb. 26 1990), which limit the use of pre-employment tests to verification that the applicant actually meets an experience requirement, a pre-employment test designed to aid an employer in the subjective determination of whether an applicant is able to perform the core job duties may be a valid interview tool. However, the panel noted, such a subjective determination, with its potential for abuse, is necessarily suspect and must be supported by specific facts sufficient to provide an objective, detailed basis for concluding that the applicant could not perform the core job duties. In this case, the panel found employer's contention, that the applicant's performance on the pre-employment test demonstrated that he could not satisfactorily design handbags, insufficient to document how Employer reached this conclusion. Consequently, Employer failed to provide an objective, detailed basis for validating the pre-employment test and certification was properly denied. Lee & Family Leather Fashions, Inc. , 93-INA-50 (Dec. 21, 1994).

Employer's vague statement that "applicants performed inadequately on test" does not document lawful rejection. According to employer, one applicant answered six of eight (%75) correctly and other applicant answered five of eight (%62.5) correctly while Alien missed none. However, the panel noted that employer never submitted the test results or a copy of the exam taken to the CO. Moreover, as at least one applicant admittedly passed the test, and a U.S. applicant cannot be rejected as being less qualified than an alien, rejection of a qualified U.S. worker was improper. United Rehabilitation Serv. , 93-INA-253 (Apr. 13, 1995).

Where Employer's agent administered an unauthorized test to a U.S. applicant and the employer presented no evidence that it required Alien to pass a similar written test, the U.S. applicant was unlawfully rejected. Hagopian & Sons, Inc. , 94-INA-178 (May 4 1995).

Where there is a civil service exam and U.S. applicants pass, they are placed on the register and considered qualified for the job. When U.S. workers on the register are rejected in favor of the alien, employer has rejected in favor of the alien, employer has rejected U.S. worker for other than lawfully job related reasons. State of California Dept. of Consumer Affairs , 94- INA-396 (July 18, 1995).

See Santee Galleria Assoc. C/O 3D Inv. , 95-INA-43 (Oct. 3, 1996) (denying certification where Employer required a Spansih language test but never indicated the number of correct answers required to pass the test, where Employer rejected 2 applicants without providing the number of answers the missed, and where the Employer rejected another applicant who scored 14/23 on the test on the basis that he was unable to converse in using simple Spanish words used daily on the job).

1. Test designed to test experience

Employer did offer its minimum job requirements and U.S. applicants were not rejected for undisclosed requirements where the questionnaire was designed to confirm experience in a listed duty/requirement. The fact that the questionnaire established that the applicants did not have the required experience in the listed job duties does not make its use unlawful. Nevada State Dep't of Personnel , 94-INA-37 (May 31, 1995).

2. Applicant's refusal to answer questions regarding substantive knowledge of profession

Employer sought labor certification for the position of accountant. It required on the ETA 750A form for the position a bachelor's degree in business administration or accounting, 5 years experience in the position offered, a CPA certificate from any state or country and experience using Lotus 123 and a 10 key by touch. The Employer rejected 2 applicants for the position because they had failed to demonstrate in a written test administered at the time they were interviewed that they had the knowledge to perform the duties of the position. The Employer noted that Alien had passed the same exam on October 7 of a specific year. The CO denied certification, inter alia , because Employer had rejected the 2 applicants for an unstated reason. The Board reversed the CO's FD and granted labor certification. It reasoned that, under Hugh G. Brewster , 88-INA-390 (Dec. 6 1989), the imposition of a written test as part of the interview process is not an unduly restrictive job requirement even though it was not included in the ETA 750A form or the advertising for the position. Compare the treatment of exams in this case and in Brewster , supra , with the treatment in general of requirements not listed in the ETA 750A or advertising for the position in Jeffrey Sandler, M.D. , 89-INA-316 (Feb. 11, 1991)(holding that an employer unlawfully rejects applicants where they meet the minimum requirements stated in the ETA 750A or the advertisement for the position). Pattern Knitting Mills, Inc. , 95-INA-109 (Dec. 2, 1996).

3. Test not required of alien

Labor certification was properly denied where Employer failed to provide the results of a typing skills test administered to the five U.S. workers as requested by the CO, nor did it document that Alien had taken the test. Vittorio Cavina , 92-INA-207 (June 2, 1993).

Where employer fails to provide document that CO requests and is clearly available, certification is properly denied. STLO Corp . 90-INA-7 (Sept. 9, 1991). Use of subjective test to determine if applicants are qualified may be valid but employer has burden of showing facts that test was objective, met business standards, and was not directed towards alien. In addition, employer must show that alien took test (and passed) before being hired. Lee and Family Leather Fashions , 93-INA-50 (Dec. 21, 1994). Sentient Sys., Inc ., 94-INA-519 (Jan. 23, 1996).

See Kevry Corp., d/b/a D & D Stainless, Inc. , 94-INA-393 (June 29, 1995) (finding that Employer rejected U.S. workers for other than lawful, job related reasons and failed to establish that the job opportunity was truly open to U.S. workers because Employer required a test of U.S. applicants that it did not require of Alien).

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 years experience and the ETA 750A indicated additional experience which was based on the Alien's own assertions. The CO denied certification and the Board affirmed. Citing MITCO , 90-INA-295 (Sept. 11, 1991) and Siam Hotel, Inc. , 87-INA-537 (Nov. 24, 1987), the Board noted that the 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. Here, although Employer had provided supporting documentation indicating that Alien had experience in the duties of the position, this documentation amounted only to 1 years of experience. Mr. & Mrs. Marc Cohen , 95-INA-150 (Dec. 5, 1996).

4. Failure of record to support employer's conclusions that applicant's answers were inadequate

Labor certification was properly denied where Employer failed to provide the results of a typing skills test administered to the five U.S. workers as requested by the CO, nor did it document that Alien had taken the test. Vittorio Cavina , 92-INA-207 (June 2, 1993).

R. Special requirements, failure of applicant to meet

no new cases

S. Subjective considerations

no new cases

1. Lawfulness of subjective considerations for rejection of U.S. applicants

The panel held that "[a]n employer's imposition of an experience requirement implying a qualitative achievement, . . . such as a requirement of 'knowledge' of a particular discipline, or artistic skills" is subject to strict scrutiny. Cloutier, Inc ., 90-INA-361 (July 14, 1992).

Where employer rejects U.S. applicant for "attitude" without further documentation of employer's suspicions, employer has rejected U.S. applicant for other than job related reasons. JPN, Inc. d/b/a Joe Panzitta, Turano Pizzeria & Restaurant , 94-INA-556 (Aug. 11, 1995).

Employer's rejection of a qualified U.S. worker because of an assumption that he would be a disgruntled employee who would leave its employ at an early date was unsubstantiated by the record and, therefore, not a lawful job related research for rejection. Driessen Aircraft Interior Sys., Inc. , 94-INA- 387 (June 5, 1995).

Employer's vice president asserted that a rejected U.S. applicant "had a hard time understanding the interviewing officer, and when he answered the questions he could not bring out his knowledge..." The vice president further stated that the applicant "could not express ...[himself] in words...," although he was "academically intelligent." The CO denied certification but the Board reversed. The Board held that the Employer's assertions concerning the applicant's ability were sufficiently detailed and reasoned, were not "inherently implausible or inconsistent, were not refuted" and were not objectionable. A subjective reason for rejection of an applicant is not necessarily unlawful. The Employer verified the subjective reason, documented how the interviewer came to the subjective conclusion, and documented how the subjective reason for rejection related to the job duties. See Jackson Hole Wyoming , 94-INA-539 (Mar. 5, 1996); Mr. & Mrs. Jeffrey Hines , 88-INA-510 (Apr. 9, 1990). Testwell Craig Labs of N.J., Inc. , 94-INA-512 (Dec. 2, 1996). See also Venetian arble , 95-INA-35 (Oct. 2, 1996).

Upholding a CO's denial of labor certification, the Board recently cited Oscar R. & Barbara Lichtenstein , 91-INA-390 (Dec. 16, 1992) and noted that "an employer's use of a subjective reason for rejecting a U.S. applicant is objectionable because it failed to document either... the way in which Employer arrived at the subjective conclusion and... the way in which the subjective reason related to the job duties or, in the alternative, the impassability of verification of that subjective reason." Looking at all the record evidence, including the applicant's resume showing several years of pharmaceutical employment in the U.S., the fact that the applicant had received a California pharmacy license, and the fact that the applicant had been in the U.S. since 1987, the Board found that Employer had not met its burden of proof. Save-On Drugs , 95-INA-250 (Jan. 30, 1997).

In a recent case, the Board cited Oscar R. & Barbara Lichtenstein , 91-INA-390 (Dec. 16, 1992) (denying certification where Employer rejects an applicant for a subjective reason), in upholding the CO's denial of labor certification. The Employer had applied for the position of "diamond assorter" and rejected an applicant because he "lacked proficiency in appraising diamonds for industrial and commercial use." Their basis for this rejection was the inability of the applicant to answer questions concerning "properties of diamonds or distinguish among different types of diamonds." Notable about the resume was the applicant's 4 years of experience as a diamond sorter. The Board reasoned that Employer failed to request that the applicant "provide verification of either his references or his educational credentials, even though the absence of such support was of such paramount importance as to be a major reason for the Employer's rejection of this candidate..." Wedding Bands & Co., Inc. , 95-INA-248 (Jan. 6, 1997).

2. Illustrative cases; failure to document subjective ground for rejection

Labor certification properly denied where applicant met minimum stated requirements for attorney position. Rejection, based on subjective considerations, such as Employer's belief that the applicant was not really interested in a legal-type position, was not adequately documented. Pavelic & Levites, P.C. , 92-INA-413 (May 31, 1994).

Labor certification properly denied where employer's basis for rejecting qualified applicant, subjective belief that applicant would most likely quit job to take over his father's business soon, was not sufficiently documented. Walter Constr. , 93-INA-137 (Jun. 30, 1994). Seealso V.I Water and Power Auth. , 93-INA-322 (Oct. 11, 1994).

Labor certification properly denied where basis for rejecting U.S. applicants included lack of enthusiasm and determination and no indication that applicant could function in an almost uncontrolled atmosphere. No documentation to support this contention was submitted. Mt. Calvary Fire Baptisted Holiness Church of God of the Am. , 93-INA-328 (Aug. 17, 1994).

Unlawful rejection of U.S. worker where employer's conclusion that applicant was unqualified for the job was based on employer's belief that applicant was so busy managing his prior business that he could not have had time to actually perform the other job duties. Canoga Auto Body , 93-INA-295 (Aug. 19, 1994).

Employer improperly rejected U.S. applicant as "untested and inexpert" for Child-Care position. Employer's subjective consideration that the 62 year old applicant appeared frail and unable to take care of the children was undocumented and, in fact, contradicted by applicants own statements. Susan F. Hertz , 93-INA-239 (Nov. 29, 1994).

Employer improperly rejected U.S. applicant for a managerial position based on applicant's previous business failure. The panel noted that although a subjective reason for rejecting a U.S. worker is not per se unlawful, here employer offered no explanation as to how a prior business failure would impact the applicant's ability to work as a manager under employer's direction. Carlo's Cleaning Serv. , 92-INA-112 (Feb. 13, 1995).

Employer failed to document its assertion that a U.S. applicant, who was previously employed by Employer, was unsuitable for the job due to lack of trustworthiness. Without documentation, Employer's assertion that the applicant regularly failed to come to work on time and tended to miss work three days at a time could not considered a basis for the lawful rejection of a U.S. worker. Culver City Meat Co., Inc. , 93-INA-546 (Jan. 31, 1995).

Employer's rejection of a U.S. applicant because she did not have the "temperament, maturity or experience needed to command respect of my rather assertive children" was not a suitable lawful job-related reason because it was highly subjective and no documentation was submitted to support the conclusion. Kenneth Lerer , 93-INA-508 (Mar. 8, 1995).

Employer's rejection of a U.S. applicant because he "did not display enthusiasm for the job offered . . . and did not appear to see this position as something he could commit himself [to] enthusiastically" was subjective and, without specific documentation, an insufficient basis for rejecting the U.S. applicant. Brown Bros. Harriman & Co. , 94-INA-19 (Mar. 13, 1995).

Employer's subjective assertions that it did not like one U.S. applicants work previous work and that the applicants designs were not suitable, were not supported by objective evidence and, therefore, were not acceptable. Concord Fabrics of Am. , 94-INA-64 (Mar. 31, 1995).

Employer's statement on rebuttal that U.S. applicant was rejected for failing to "demonstrate proficiency" or to perform "satisfactorily" is subjective and, in the absence of documentation establishing how employer arrived at that conclusion, does not constitute a lawful job-related reason. Benjamin & Co. , 94-INA-182 (Apr. 28, 1995).

Employer's vague assertions that the applicant for a high school teaching position was "obnoxious", lacked the appropriate "personality" for the job and received "very average" evaluations were insufficient to establish lawful job related reasons for rejecting the applicant as no objective evidence, such as teaching evaluations and parent/student complaint letters, was submitted to establish that the applicant was unable to perform the job. Port Huron Area Sch. Dist. , 93-INA-319 (Apr. 28, 1995).Labor certification was properly denied where the employer asserted that the applicant met the stated job requirements for a Secretary but was nevertheless unable to perform the job duties "because her 'whisper type of voice' makes her unable to answer phones or give information to clients, a stated duty of the offered position." The employer failed to document this assertion and rejected the CO's suggestion that he ask the applicant to speak louder stating that "it was not his place to ask a prospective employee to do that." Marbrook Personnel Resources, Inc. , 91-INA-347 (June 2, 1993).

Labor certification was properly denied where the employer provided no support for its conclusion that one U.S. applicant "lacked 'the required level of commitment'" and another applicant "would choose to leave the job after only a short period of time." Spanish Am. Inst. , 92-INA-280 (July 1, 1993).

Labor certification was properly denied where the employer "merely assumed that (one U.S. applicant) was lying about his many years of experience and that (another applicant) would leave as soon as he received an offer in the film-making field." The panel found that Employer did not document these assertions. Roy Rogers Restaurant , 92-INA-288 (July 1, 1993).

A mere assertion of a "'personality' shortfall" is insufficient to support the lawful rejection of a U.S. worker. First Baptist Church , 91-INA-232 (July 7, 1992).

Although the panel noted that subjective reasons for rejecting a U.S. worker do not constitute a per se bar to labor certification, it concluded that no lawful, job related reasons were put forth by Employer for an applicant's rejection where he merely offered "his subjective impression that (the applicant) could not perform the work, and that his personal references did not support his application for the position." Geostat Sys., Inc. , 92-INA-16 (Dec. 28, 1992).

Labor certification was properly denied where Employer failed to document its conclusion that apparently qualified applicants were not contacted "because it 'felt certain that it would have been a fruitless endeavor.'" Sparks Steak House, Inc. , 91-INA-378 (Jan. 11, 1993).

Labor certification was properly denied where Employer did not offer the job to a U.S. applicant, but merely concluded that he "was not really interested in the job." The panel noted that the applicant "exressed interest in the job to the point of having called Employer to inquire about it." Mountain West Plastics , 92-INA-82 (Mar. 3, 1993).

A subjective reason for rejecting a U.S. worker is not, in itself, necessarily unlawful; rather, "it is the failure to document how the interviewer came to the subjective conclusion and/or failure to document how the subjective reason relates to the job duties (or the impossibility of verification of the subjective reason) that makes subjective reasons for rejection objectionable." The panel then concluded that the employer's rejection of a qualified applicant because "her personality [is] too strong" was unlawful where there was no documentation in support of this conclusion and the applicant asserted that "the application process was a pretext 'so immigration will grant legal papers for (the employer's) lady friend." Rebecca Cantarero , 92-INA-70 (Mar. 31, 1993).

The employer's rejection of an applicant for "poor communication skills" was improper as the applicant's resume evidenced that he "has prepared (computer) program documentation, analyzed business requirements and user interface, and participated as a team member in the development and maintenance of a computer program, among other activities, in his work as a Programmer Analyst for a major brokerage company." The panel concluded that "[i]t is unreasonable to suppose that he could be carrying on this employment for half a decade without adequate skill to communicate with others in a business environment." Cap Gemini Am. , 92-INA-345 (July 6, 1993).

Labor certification was properly denied where Employer failed to document its rejection of two applicants on grounds that one was "too hostile" and the other was not "outgoing" or "intelligent enough" for the position. Royal Hanna Communication , 92-INA-411, 412 (Aug. 2, 1993).

Labor certification denied where employer did not interview possibly qualified applicants based on presumed commuting problems. Applicants should have been interviewed and allowed to reject job if they determined that the commute was too long. Tony Gironda , 93-INA-54 (Oct. 13, 1993).

Employer's vague and nonspecific reasons for rejecting U.S. workers who meet minimum requirements do not constitute lawful job-related reasons. Musika Records, Inc. , 92-INA-352 (Nov. 23, 1993).

Labor certification denied where employer's basis for rejection of apparently qualified U.S. worker amounted to mere speculation that the applicants were not interested in the position. Frank Mode, Inc. , 92-INA-354 (Nov. 22, 1993).

Labor Certification properly denied where employer indicated that secretary in charge of hiring interviewed applicant and found him "overqualified" and "irresponsible". The panel noted that while subjective considerations are not per se an unlawful ground for rejection of U.S. workers, such considerations must be supported by a person with first-hand knowledge of the facts presented. As no first-hand evidence from the secretary was submitted, the basis for rejection of the U.S. applicant was unsubstantiated. American Fence Co. , 93-INA- 55 (Dec. 27, 1993).

Employer's subjective rejection of U.S. applicant as "not suitable to fit in a middle management position" wholly undocumented and, therefore, was found to be an objectionable basis on its own or in part for rejecting the applicant. Lucky-Goldstar Int'l (Am.), Inc. , 92-INA-185 (Dec. 14, 1993).

Labor certification properly denied where employer rejected an otherwise qualified applicant because of a perceived discrepency in applicant's resume and employer's subjective conclusion that the applicant is "dishonest". The panel noted that Employer did not provide the applicant with an opportunity to explain the discrepency. E. Palmer Paving Co., Inc. , 92- INA-297 (Jan. 4, 1994).

Employer has duty to document subjective reasons for rejecting U.S. worker. See Rebecca Cantero, 92-INA-70 (Mar. 31, 1993). Pall Corp. , 94-INA-472 (Aug. 8, 1995).

Santee Galleria Assoc. C/O 3D Inv. , 95-INA-43 (Oct. 3, 1996) (denying certification where Employer required a Spansih language test but never indicated the number of correct answers required to pass the test, where Employer rejected 2 applicants without providing the number of answers the missed, and where Employer rejected another applicant who scored 14/23 on the test on the basis that he was unable to converse in using simple Spanish words used daily on the job); Jackson Hole Wyoming , 94-INA-539 (Mar. 5, 1996) (denying certification where Employer rejected an applicant specialty cook on the basis of the applicant was improperly groomed because Employer's rebuttal contained only general descriptions of the applicant's appearence, rather than describing specific aspected of her physical appearence or dress that would show precisely how she was improperly groomed or inaapproprialtly dressed and how this would relate to job duties).

Mere assertions and insufficiently explained responses are not adequate documentation of an employer's reasons for rejecting U.S. applicants . Petit Jean Poultry , 94-INA-318 thru 372 (Aug. 15, 1996).

Lack of trustworthiness is a lawful job related reason to reject a US applicant. See Juanito N. Rouque , 88-INA-439 (Apr. 5, 1988); Alfredo's Restaurant , 90-INA-70 (June 12, 1991). In the recruitment report, the Employer alleged that an applicant mistated his actual reason for leaving his current employer. The CO never submitted a questionaire to the applicant to confirm or deny this allegation. Labor certification was granted. Checker Automative Ctr. , 94-INA-439 (Jan. 23, 1996).

3. Even-handed subjective evaluation

no new cases

T. Unstated requirement

1. Lawfulness of rejection based on unstated requirement

An employer generally may not reject a U.S. worker based upon an unstated job requirement. Meryc Bus Co., Inc. , 93-INA-152 (Mar. 18, 1994)(repairing engines not specified minimum requirement for job maintaining school buses); Our Lady of Solace Sch. , 93-INA-5 (Dec. 7, 1993)(teaching certificate and experience in religious instruction not listed requirements); Phyllis Rowland , 92-INA-366 (Dec. 17, 1993)(no experience requirement listed); Monarch Moulds, Ltd. , 92-INA-417 (Dec. 17, 1993)(Portugese lanugage requirement not stated); Cohen Bros. Realty Corp. , 93-INA-53 (Oct. 13, 1993)(requirement that the related experience be in real estate not stated); Alexander & Pamaro, Inc. , 92-INA-355 (Nov. 29, 1993); Bruckner Blvd. Auto Sales , 92-INA-414 (Sept. 29, 1993) (experience in computerized automobiles not stated); Quadriga Art, Inc. , 92-INA-393 (Aug. 31, 1993) (experience in "gold leafing" not stated); Custom Interiors , 92-INA-242 (May 3, 1993) (experience in upholstering French period furniture not stated); United Const. Weather Proofing Co. , 92-INA-172 (Mar. 26, 1993) (scaffolding work not listed in application or advertisements); United Calibration Corp. , 91-INA-75 (Mar. 24, 1993) (employer improperly rejected a U.S. worker for failure to have taken specific courses where the employer only stated that it required an academic degree); I C O Manufacture, Inc. , 93-INA-65 (Jan. 25, 1994)(where employer required that applicants "be able to handle/use all tools required in the industry otherwise qualified, applicant improperly rejected for lack of specific experience with one particular tool) ; Hi & Low Computer, Inc. , 92-INA-349 (Nov. 10, 1993)(applicants improperly rejected for lack of knowledge in certain computer languages where employer only stated that it required an academic degree); Goodkind & O'Dea, Inc. , 92-INA-430 (Feb. 28, 1994); Armando's Italian Restaurant , 92-INA-51 (Mar. 23, 1993) (experience in preparing Italian dishes not listed for the position of lead waiter); M.K. Catering consultants, Inc. , 92-INA-10 (Jan. 29, 1993) (rejection unlawful where requirement that experience specifically be with Indian cuisine not stated); Discover Home Improvement , 93-INA-86 (Jan. 4, 1994)(unlawful rejection based on lack of experience in an unstated job duty); E. Palmer Paving Co., Inc. , 92-INA-297 (Jan. 4, 1994)(travel requirement not listed); D & W Central Station Alarm Co. , 92-INA-317 (Jan. 4, 1994); Lorenzana Foods Corp. , 92-INA-20 (Jan. 26, 1993); L.M.C. Corp. , 91-INA-34 (Jan. 26, 1993); Travers Associates, Inc. , 91-INA-115 (Jan. 6, 1993); Electronic Dev. Corp. , 91-INA-343 (Dec. 16, 1992); Zuma Studios , 91-INA-289 (Dec. 11, 1992); Sawyer College of Business , 91-INA-234 (Aug. 19, 1992); Roger Bowman Upholstering , 91-INA-163 (May 18, 1992); Joseph Gartland, Inc. , 91-INA-23 (May 28, 1992); Multi-Fineline Electronix, Inc. , 91-INA-42 (Apr. 30, 1992); LCG Media , 91-INA-89 (Mar. 27, 1992); Micro-Tool & Fabricating , 90-INA-404 (Mar. 12, 1992); Mage Electrician Contractors , 90-INA-483 (Feb. 4, 1992); The Screen Place , 90-INA-431 (Mar. 11, 1992); D&J Concrete Corp. , 90-INA-471 (Feb. 6, 1992).

Rejection of U.S. Worker for failure to meet an unspecified job requirement is unlawful. Photo Network, 89-INA-168 (Feb. 7, 1990). University of Miami, Sch. of Medicine , INA-607 (Aug. 31, 1995).

Rejection of U.S. applicant for other than a stated job requirement is unlawful and grounds for denial. John Hancock Mutual Life Ins. Co. , 94-INA-293 (Aug. 7, 1995).

Employer cannot arbitrarily reject U.S. applicants because of failure to meet job requirements which were not specified in the labor certification application, ie., applicant teachers did not live in Employer's metropolitan area. Our Lady of Good Counsel Elementary Sch. , 94- INA-262 (June 9, 1995).

Employer may not reject U.S. worker for other than lawful, job related reasons. Where applicant states that she has 20 years of experience and employer seeks only 2 years of experience, employer has not engaged in good faith where he arbitrarily claims that he could not document all 20 years of experience, when job only called for 2 years. Willy Leon Photographers , 4-INA-224 (May 25, 1995).

Employer's rejection of a Child Tutor applicant because he was male was not a lawful job related rejection as this characteristic was not described in the labor certification application. Evan Brovenick , 94-INA-375 (June 5, 1995).

Employer sought labor certification for the position of Set Designer for which the Employer required an M.F.A. with "Technical Design and Production" as the major field of study. A U.S. applicant for the position possessed a B.A. with a concentration in Design and Technical Production and an M.F.A. in Theater Arts, with a concentration in scenic lighting and design, an advanced study master class in technical production with the Cologne Opera, had been the technical director of over 75 productions, and had won an award for technical excellence on 2 separate occasions. The Employer rejected the applicant, arguing that he did not have the "required engineering education to prepare the necessary working drawings...," "that the set designer position we are looking to fill is in state automation design and not in scenery and lighting design...," and that "the job opportunity requires specific technical design and production knowledge." The CO denied labor certification and the Board affirmed. It reasoned that Employer did not recruit in good faith since Employer did not list any "specific engineering education in its requirements stated on the ETA 750 form..." and did not list any "specific technical design and production knowledge" as a requirement for the job opportunity. Instead, the Board noted, Employer "specifically lists in the duties, `provide technical support for theatrical set designs,' and therefore his statement that the position is `for stage automation design and not scenery and lighting design' appears disingenuous." The Board reasoned that an employer unlawfully rejects an applicant where Employer meets the stated minimum requirements, but fails to meet requirements not stated in the application or the advertisements, and Employer, here, rejected the applicant on the basis of requirements not listed in the ETA 750 form. See Jeffrey Sandler, M.D. , 89-INA-316 (Feb. 11, 1991)(en banc). Showtech, Inc., 95-INA-315 (Feb. 11, 1997).

Employer applied for certification for the position of "Account Representative" and was informed on at least 7 occasions that he would be required to return all signed resumes with documentation of recruitment results. The Employer was also informed that it was the Employer's responsibility to verify the employment status of each applicant. Not withstanding these instructions, Employer only supplied the resumes of the 5 applicants that it reported rejecting. They were rejected because, according to unsigned written statements on the back of their resumes, they did not speak Chinese, Mandarin Chinese, or Taiwanese. The Employer justified these rejections by "merely" asserting that "none of these applicants have had any experience working with Chinese/Taiwanese customers...," that, in "order to successfully penetrate this market, the applicant will have had to have considerable experience working with this minority group...," and that none of these applicants had that experience. The Employer justified a last rejection of a U.S. worker who spoke Chinese fluently on the basis that the applicant had no experience in financial planning. However, the language requirement and a requirement that the applicant be knowledgeable of all aspects of Chinese life, including customs, attitudes, and socio-economics were deleted from the Form ETA-750, and the newspaper requirements contained no such requirement. The CO denied labor certification and the Board affirmed. It reasoned that an employer unlawfully rejects an applicant who meets the Employer's stated minimum requirements, but fails to meet requirements not stated in the application or the advertisements for the position. See Jeffrey Sandler, M.D. , 89-INA-316 (Feb. 11, 1991). Metlife , 95-INA-327 (Feb. 11, 1997).

For the position of "Cook, Domestic" Employer required 4 years of high school and 2 years experience in the job offered. In its recruitment report Employer noted the rejection of an applicant due to her lack of knowledge of Kreplach and kosher cooking. In the Employer's rebuttal to the CO's finding in the NOF that the applicant had been unlawfully rejected, Employer denied that the applicant was rejected for her lack of knowledge of Kreplach and Kosher cooking. Instead, Employer argued that the applicant was not interested in the position and had different job objectives. The CO denied certification and the Board affirmed. The Board noted that Employer contradicted himself about the reasons for rejecting the applicant. Rejecting U.S. applicants for not meeting unstated requirements constitutes an unlawful rejection of qualified U.S. applicants in violation of § 656.21(b)(6). See, e.g., Columbia Grammar & Preparatory Sch. , 92-INA-410 (Apr. 6, 1994); Universal Energy Sys., Inc. , 88-INA-05 (Jan. 4, 1989). Robert Del Gadio , 95-INA-290, (Jan. 23, 1997).

Employer rejected a U.S. applicant because he lacked knowledge of "hydraulic power pack water recicle [sic] system," and its rebuttal to the NOF failed to address the issue of why this requirement was not stated in the original application or advertising. Instead the Employer asserted that it had the applicant interviewed by an outside party who found the applicant unqualified. The Board found that the applicant was rejected unlawfully because the Employer failed to state all of its requirements in the original application for labor certification or the advertising for the position. Valley Gas Co. , 95-INA-291 (Dec. 19, 1996).

It is an unlawful rejection of a U.S. worker of a U.S. worker to determine that an applicant is unqualified based on vague personal experience with the applicant. See Sete Consultants & Serv. , 89-INA-100 (Nov. 15, 1989). The Employer unlawfully rejected an applicant when, without having interviewed him Employer claimed that Employer had the opportunity to review an applicant's expertise and did not feel that the applicant reached the quality necessary to perform the job offered because. Jhaveri Diamond Corp. , 94-INA-621 (Apr. 12, 1996).

Where employer does not list an experience requirement in his advertisement, and then subsequently rejects US applicant who is otherwise qualified because of a lack of experience, employer has rejected US worker for other than lawfully job related reasons. Project Resources & Dev. Co ., 94-INA-298 (May 30, 1995).

Expert Auto Body Ctr. , 95-INA-39 (Oct. 3, 1996) (denying certification for the position of auto repairer after Employer rejected 1 applicant on the basis, among others, that he lacked experience using a particular framework machine because work with the frame machine was an unspecified requirement). See also Bellport Country Club , 94-INA-575 (June 6, 1996).

2. Illustrative cases; rejection based on previously unstated or unspecified requirements

Labor certification was properly denied where employer rejected a number of otherwise qualified applicants, without interviewing them, for lack of specific knowledge of catering health code regulations and/or pest control procedures, both unstated requirements. Sirico's Caterers , 93-INA-151 (May 4, 1994).

Labor certification properly denied where employer rejected an applicant with minimum stated requirement of Master's Degree in Electrical Engineering. Rejection based on lack of experience in specific job duties improper where no experience requirement was listed. CCD Online Sys. Inc. , 93-INA-258 (May 24, 1994).

Labor certification properly denied where employer rejected applicant because he had "research" instead of "design" experience, but this was not specified in the application and employer never adequately explained the difference between the two. Dhillon Eng'g, Inc. , 93- INA-116 (Jun. 28, 1994). See also Jay Peak Sys., Inc. , 93-INA-283 (Aug. 16, 1994)(employer never specified that experience must be gained in business rather than academic setting); Blue Ridge Farms, Inc. , 93-INA-514 (Nov. 30, 1994)(employer unlawfully rejected applicant for lack of experience specifically in industrial or ammonia refrigeration where job duties indicated installation and repair of refrigerating systems generally); Samsung Electronics Am. Inc. , 94-INA-69 (Dec. 23, 1994)(unlawful rejection for lack of unspecified experience in data processing/programming or speedware knowledge); Blue Ridge Farms , 94-INA-106 (Mar. 22, 1995)(unlawful rejection for lack of experience specifically in food processing industry where that particular experience requirement not listed); Musee De La Mode D/B/A/ Untitled , 94-INA-115 (Mar. 22, 1995)(employer improperly rejected applicants for lack of experience in fashion industry where that requirement was not listed); Armstrong Labeling Sys. , 94-INA-62 (Apr. 28, 1995).

Labor certification properly denied where employer rejected applicant for lacking specific experience in manufacturing costing when the minimum stated experience requirement was general cost accounting. Eldorado Coffee Dist. Ltd. , 93- INA-460 (Jul. 26, 1994).

Rejection of U.S. worker meeting the alternate experience requirement because applicant lacks experience in specific aspects of the job duties not lawful. The panel specified that if experience in each job duty was a requirement, then Employer must list that as such. First Michigan Bank Corp. , 92-INA-256 (Jul. 28, 1994). Seealso Perkins & Will , 93-INA-246 (Aug. 16, 1994); Metropolitan Lumber & Millwork, Inc. , 93-INA-67 (Aug. 19, 1994).

Labor certification properly denied where employer unlawfully rejected U.S. workers for lack of experience with IBM computers, an unstated job requirement. The panel concluded that although use of IBM computers was included in the job duties, Employer failed to provide a more objective and detailed explanation as required by Quality Inn , 89-INA-273 (May 23, 1990) when rejecting a U.S. worker for inability to perform the main job duties. Associated Students Inc., (CSLA) , 93-INA-311 (Jul. 26, 1994).

Labor Certification properly denied where employer rejected U.S. workers for failing to provide proof of ability to work in the U.S. along with their resumes. Employer never specifically requested that such proof be submitted and it is not customary to provide that information at that time. Red Coats, Inc. , 93-INA-476 (Sep. 26, 1994).

Denial of certification affirmed where Employer rejected U.S. applicants meeting minimum stated requirements because they did not also meet the alternate experience requirement. United Paint and True Value Hardware Co. , 93-INA-122 (Oct. 28, 1994).

Labor certification properly denied where the applicants met minimum requirements. Employer cannot belatedly add requirements after issuance of the NOF and purport to reject applicants based on previously unstated requirements. Youngworld of Jamaica, Inc. , 93-INA-278 (Nov. 10, 1994).

Denial of labor certification affirmed based on employer's imposition of a requirement not listed on the application form as evidenced by a U.S. applicant's response to the CO's follow-up questionnaire form. Spec Eng'g Co. , 93-INA-169 (Oct. 27, 1994).

Unlawful rejection of U.S. worker for lack of unstated degree requirement. ACC Heating & Air Conditioning, Inc. , 93- INA-547 (Feb. 13, 1995).

Denial of certification because employer rejected a U.S. applicant for failure to meet an unspecified job requirement. Employer rejected a U.S. applicant for lack of experience sewing children's sportswear. Although employer is a manufacturer of children's sportswear, it did not include such experience as a job requirement and did not sufficiently explain why the applicant, a seamstress with experience sewing wedding dresses, could not adequately sew children's sportswear. Jennifer Richards, Inc. , 93-INA-143 (Jan. 31, 1995).

Labor certification denied where employer trying to fill the position of teacher/principal unlawfully rejected otherwise qualified U.S. applicants for failing to meet unspecified preferences. In its rebuttal, employer indicated that it needed an african-american male teacher to serve as a role model for its students, african-american inner city boys without fathers. The panel concluded that even assuming such preferences were legitimate job requirements, employer cannot reject applicants based on such unstated requirements. Moreover, the panel did not accept Employer's statement that it was not able to list the additional job preferences on the application form or advertisements because of the extra print costs involved. St. Francis Xavier Sch. , 94-INA-143 (Feb. 14, 1995).

Labor certification denied where Employer rejected U.S. workers for not meeting educational or experience requirements that it failed to include in the advertisement. Village of Great Neck Estates , 94-INA-126 (April 14, 1995).

Employer unlawfully rejected applicant for position of Auto Body Repairer because he did not bring his own tools to the interview, where that requirement was not specified on the labor certification application. AE Autobody Repairs , 94-INA-198 (May 8, 1995).

Where the application and advertisement did not contain a requirement that applicants have sewing experience, it was unlawful for Employer to reject applicants on this basis. Hortencia's Fashions, Inc. , 90-INA-389 (Feb. 25, 1992).

Employer unlawfully rejected U.S. workers based solely on the fact that their cleaning experience was in hospitals and not in hotels where cleaning in a "hotel environment" was not stated and the employer offered no basis for its subjective conclusion. Sheraton Boston Hotel & Towers , 90-INA-452 (Feb. 1, 1993).

Labor certification was properly denied where the employer rejected a U.S. applicant for lack of "experience in baking rye and pumpernickel bread" where such a job requirement was not stated in the application or advertisements. Fragale Baking Co. , 92-INA-64, 65 (Feb. 23, 1993).

Labor certification was properly denied where the employer rejected U.S. workers on the basis of the unstated job requirement of "Deltron paint system" experience. The panel concluded that if "experience in the Deltron paint system is so critical to perform the job offered, it should have been clearly stated on the application and advertised." Moreover, the panel concluded that the CO properly rejected Employer's offer to readvertise because "'an employer cannot add additional minimum requirements after advertising and receiving qualified responses.'" Exclusive Motors, Inc. , 91-INA-326 (Mar. 17, 1993). See also Chiat/Day/Mojo , 92-INA-196 (Jan. 4, 1994)(employer advertised position as "Account Manager" and improperly rejected applicants for lack of advertising experience which was not a stated minimum requirement).

Labor certification properly denied where only reason given for rejecting U.S. worker was lack of unit handling conveyor experience, a requirement not specified on Form ETA 750. Rapistan Corp. , 93-INA-1 (Sept. 29, 1993).

Labor certification was properly denied where ability to work after hours, work independently, and speak "good english" were not listed as requirements on ETA 750A and these unstated requirements were the basis for employer's rejection of U.S. applicants. The panel did not accept Employer's contention that these requirments were inherent to the job. Gabriel Rubanenko, M.D. Inc. , 92-INA-370 (Dec. 22, 1993).

Labor certification denied where applicant meets stated minimum requirement and was rejected for lack of financial management experience. Such experience was initially found unduly restrictive for the position and employer cannot justify this requirment by altering the job duties after advertising the position. Pinky Originals, Inc. , 93-INA-308 (Mar. 18, 1994).

Labor certification properly denied where otherwise qualified applicant for the position of Industrial Engineer was rejected for lack of computer experience which was not a stated requirment for the position. Panel noted that merely because the DOT definintion of Industrial Engineer inculdes computer work doesn't necessarily mean that it is a requirement for all Industrial Engineering jobs; "in other words, all job duties listed in the DOT for a particular occupation are not automatically included in the Employee's job description in the application for labor certification.". Kelvin Electronics , 93-INA-100 (Mar. 18, 1994).

An employer unlawfully rejects a U.S. worker who meets the requirements listed on the 750 A form. American Cafe , 90- INA-26 (Jan. 25, 1991). There is not per se, a requirement that employer must place all minimal requirements in all the "proper" boxes on forms, or that forms are determining factors. CO may not flatly ignore "job duties" when considering whether U.S. applicants were qualified and took only at "job requirements." (case remanded to determine if clipper computer language was, in fact a job requirement). Golden Bell USA Co., Inc. , 93-INA-564 (Nov. 6, 1995).

In the request for review Employer maintained that an Employee was not rejected due to lack of knowledge of Cantonese, but in the Employer's recruitment report Employer mentioned as a basis for the rejection of the U.S. worker a lack of knowledge of Cantonese. However, the "issue becomes moot" because the applicant was rejected for other unlawful reasons. First Nat. Trading Co., 95-INA-97 (Jan. 27, 1997)(dictum)

Employer sought labor certification for the position of accountant. It listed on the ETA 750A form the requirement of a bachelor's degree in business administration or accounting, 5 years experience in the position offered, a CPA certificate from any state or country and experience using Lotus 123 and a 10 key by touch. The Employer rejected 2 applicants for the position because they had failed to demonstrate in a written test administered at the time they were interviewed that they had the knowledge to perform the duties of the position. The Employer noted that Alien had passed the same exam on October 7 of a specific year. The CO denied certification because, inter alia , Employer had rejected the 2 applicants for an unstated reason. The Board reversed the CO's FD and granted labor certification. It reasoned that, under Hugh G. Brewster , 88-INA-390 (Dec. 6 1989), the imposition of a written test as part of the interview process was not an unduly restrictive job requirement even though it was not included in the ETA 750A form or the advertising for the position. Compare the treatment of exams in Brewster , supra , with the treatment in general of requirements not listed in the ETA 750A or advertising for the position in Jeffrey Sandler, M.D. , 89-INA-316 (Feb. 11, 1991)(holding that an employer unlawfully rejects applicants where they meet the minimum requirements stated in the ETA 750A or the advertisement for the position). Pattern Knitting Mills, Inc. , 95-INA-109 (Dec. 2, 1996).

For the position of "Cook, Domestic" Employer required 4 years of high school and 2 years experience in the job offered. In its recruitment report Employer noted the rejection of an applicant due to her lack of knowledge of Kreplach and kosher cooking. In the Employer's rebuttal to the CO's finding in the NOF that the applicant had been unlawfully rejected, Employer denied that the applicant was rejected for her lack of knowledge of Kreplach and Kosher cooking. Instead, Employer argued that the applicant was not interested in the position and had different job objectives. The CO denied certification and the Board affirmed. The Board noted that Employer contradicted himself about the reasons for rejecting the applicant. Rejecting U.S. applicants for not meeting unstated requirements constitutes an unlawful rejection of qualified U.S. applicants in violation of § 656.21(b)(6). See, e.g., Columbia Grammar & Preparatory Sch. , 92-INA-410 (Apr. 6, 1994); Universal Energy Sys., Inc. , 88-INA-05 (Jan. 4, 1989). Robert Del Gadio , 95-INA-290, (Jan. 23, 1997). See also Agro Int'l, Inc. , 94-INA-638 (Mar. 26, 1996) (denying certification where Employer requred the applicant to bring their university transcripts to the interview for the position of verification specialist - commercial notations, because the application for certification required no specific educational experience).

Employer sought labor certification for the position of "Computer Administrator and Purchasing Agent," the job duties including, "operate computer to process business, manage system, run reports, input orders, purchase orders, receiving and general office work." The Employer rejected all 13 U.S. applicants stating lack of experience with the Employer's computer system as one of the reasons for rejection. The CO concluded that this was an unstated requirement and that six applicants were qualified for the position as described. The CO denied certification and the Board affirmed. It reasoned that rejecting U.S. workers for not meeting the unstated requirement of lack of experience with the Employer's computer system was an unlawful rejection. See Photo Network , 89-INA-168 (Feb. 7, 1990); Samsung Electronics Am. Inc. , 94-INA-69 (Dec. 23, 1994). K&D Export Import Co., 95-INA-275 (Jan. 29, 1997).

Employer applied for labor certification for the position of "maintenance mechanic," the job duties including, "will inspect and maintain car wash equipment in good working order; [m]ake repairs on...machinery." In the NOF, the CO found the Employer had rejected an applicant for lack of knowledge of a requirement which was not stated in the ETA 750A, the ads or the posting. The Employer responded with a letter indicating that an outside expert car wash mechanic had interviewed the applicant and found him unqualified. The CO denied certification and the Board affirmed. The Board reasoned that the letter did not address the issue of why the requirement was not listed or address on what basis the applicant was found not qualified. Valley Gas Co. , 95-INA-291 (Dec. 19, 1996).

Employer may not reject applicant based on an unstated job requirement. In the instant case, the Board held that labor certification was properly denied because a seemingly qualified U.S applicant failed to respond to the Employer's letter inviting him to a an interview after the Employer told him by telephone that a valid driver's license was necessary for the position. This requirement was not int he application or adervtisding and was tantamount to rejecting the application unlawfully. 33 East Maintenance Corp./ Freehold Cartage Corp ., 94-INA-242 (June 27, 1995). See also Boris Shmulevich , 95-INA-19 (Aug. 16, 1996) (denying certification for the position of child tutor where in rebuttal the Employer added a Russian language requirement becaue neither the certification application or the advertisements listed such a requirement and denial of certification is proper where the employer adds duties not listed in the application or newspaper adds).

Employer sought certification for the position of Auto Mechanic for foreign automobiles. Its only requirements were 2 years of experience in the job offered. The Employer rejected 1 applicant with 28 years of experience because the applicant had no experience in fuel injection. The CO denied certification and the Board affirmed. Citing Jeffrey Sandler, .D. , 89-INA-316 (Feb. 11, 1991) (en banc), the Board noted that employers unlawfully reject applicants who fail to meet requirements that were not stated in the application and the advertisement for the position. Here, the Board reasoned, neither the ETA 750A nor the advertisement stated that expertise in fuel injection was a requirement for the position. G.M. Hotlunch Truck MFG., Corp. , 95-INA-116 (Jan. 28, 1997).

Employer sought certification for the position of Computer Programmer and required a high school education and 3 years of experience in the job offered. The Employer listed no special requirements in its ETA 750A. One applicant had experience in Basic; Cobol; RPGII programming; local area networks, particularly Novell Netware v2.2; Lotus 113; WordPerfect; icrosoft Excel; Carbon Copy; IBM S/36; and had converted files from IBM S/36 to PC Lan. The Employer rejected him because he was inexperienced in Micro Focus Cobal and Novell Netware Operating Systems. The Employer argued that the applicant's experience was unrelated to the experience required for the position. The CO denied certification and the Board affirmed. Citing Jeffrey Sandler, M.D. , 89-INA-316 (Feb. 11, 1991) (en banc) and ChromatoChem., 88-INA-08 (Jan. 12, 1989) (en banc), the Board noted that employers unlawfully reject applicants who fail to meet requirements that were not stated in the application and the advertisement for the position. Here, the Board reasoned, the applicant was rejected for not having specific programming experience that was not mentioned in the application and advertisements for the position. Pacific Shores Financial Corp. , 95-INA-115 (Jan. 28, 1997).

An applicant was rejected for the position of resident engineer on the basis that the job requires the ability to train consultants and adminster contracts in accordance with procedures. The Board held this to be an unlawful rejection because, although it was listed in the application for certification as a job duty, it was not a special requirement for the position such thatit was an unstated requirement. Port Auth. of New York & New Jersey , 94-INA-312, (Jan. 22, 1996).

Where an Employer rejects an applicant for the position of Dressage Horse Trainer on the basis, among others, that he utilized the freestyle technique rather than the traditional technique of dressage, and where the Employer's application for labor certification lists no requirement that experience in a particular technique of dressage was required, then labor certification was properly denied because an employer cannot find a U.S. applicant disqualified for the position for failing to meet an experience requirement not listed in the application in the application for labor certification or belatedly seek to add even more restrictive requirements and use them as a basis for rejecting a U.S. worker. Fritz R. Kundrun , 94-INA-240 (Jan. 10, 1996).

3. Specialized aspect of job within scope of stated requirement

no new cases

4. Rejection based on physical or character traits of the applicant

Denial of labor certification based on anti-discrimination provisions at § 656.21(c)(5) reversed where job duties necessarily include living in a male dormitory and supervising 35 boys. Citing to various district court decisions, the panel concluded that sex can be a bona fide occupational qualification where privacy interests are at issue. Accordingly, Employer here properly rejected an otherwise qualified female applicant. As stated in the decision, "[employer] should not be required to place a female teacher in the boys dormitory, against tradition an common dignity, because a labor certification is involved." Perkiomen Sch. , 94-INA-215 (Jan. 26, 1995).

a. Lawfulness of rejection based on previously unstated requirement that the applicant not have certain physical or character traits

The regulations at 20 C.F.R. § 656.20(c)(5) prohibit the rejection of U.S. workers on the basis of age. Roni Dorman , 91-INA-328 (Oct. 1, 1992); Elliot & Frada Pasik , 93-INA-38 (Mar. 21, 1994)(advertisement for "Housekeeper Girl" indicates discrimination on the basis of sex in violation of §656.20(c)(5)).

The employer failed to provide lawful, job related reasons for rejection where it told one U.S. worker "that the baking job would be too hard for her, that the baker job was for a man." Watertown Dunkin Donuts , 91-INA-353 (Jan. 29, 1993).

Labor certification was properly denied where the employer rejected U.S. applicants for the position of Live-in Child Monitor on grounds that they were male. Mrs. Andrea Morse , 92-INA-334 (June 17, 1993).

b. Requirement that ground not have been concocted to reject a qualified U.S. applicant

c. Personal practice of applicant

d. Applicant's poor character

Where employer rejects an applicant for the position of landscape gardner on the basis that he has not had a steady job since 1984 and no recent job references and that he is not a stable worker, where applicant submits 2 letters of recommendation which failed to indicate the dates that applicant was employed by recommenders, where applicant submits letter indicating that he was employed by 3 different operations, and where the applicant's resume does not indicate the dates of his last employment, and does not state whether he was currently employed, then labor certification was properly denied because Employers must document its determination that the applicant is not reliable. In the instant case, Employer failed to document whether Employer attempted to contact prior employers, secure a detailed recent work history or question him about changing jobs frequently. Ernie Vejar Landscape Maintenance , 94-INA-189 (July 19, 1995).

e. New requirements may be scrutinized to determine whether they are unduly restrictive

no new cases

5. Unstated requirement not relied on for rejection of applicant

no new cases

U. Verification, failure to provide employment and educational

Labor certification denied where employer claimed that one U.S. applicant was rejected because his previous supervisor would not validate his work experience. Supervisor in fact validated applicant's experience to the CO and employer never addressed this discrepancy in its rebuttal. Associated Students Inc., (CSLA) , 93-INA-311 (Jul. 26, 1994).

Employer unlawfully rejected U.S. workers for failure to provide verifiable references when there is no documentation that employer specifically requested such reference and applicants did not comply. CMC Quality Concrete , 93-INA-108 (Oct. 25, 1994). See also Gorsuch Deli , 94-INA-141 (Dec. 23, 1994)(unlawful rejection for failure to provide written references where no proof that alien similarly required to provide such references when hired).

Employer unlawfully rejected U.S. applicant for position of Janitorial Supervisor based on previous employer's unwillingness to corroborate the precise nature of U.S. applicant's job. The panel noted that the previous employer at least partially corroborated the experience listed on applicants resume and the applicant should not be penalized for Employer's unwillingness to verify the department in which he had worked or the reason he was terminated. Tahoe Sierra Serv. , 93- INA-504 (Nov. 29, 1994).

Employer improperly rejected U.S. applicants because none of the applicants interviewed presented a letter of reference. The employer failed to document that it required applicants to present such references and it failed to explain why it could not subsequently contact any references or previous employers provided by the applicants either orally or as listed on a resume. Saratoga Body Repair Shop , 93-INA-242 (Apr. 15, 1995).

Employer improperly rejected U.S. applicants because prior employer would not provide detailed information regarding an applicants previous employment, especially where the applicant's help in obtaining such information is not elicited. Here the previous employer was contacted by phone and only informed the prospective employer that its office policy was to provide only dates of employment and salary. Livingston Health Care Ctr. , 93-INA-470 (Apr. 6, 1995).

One panel held that employer may properly reject a seemingly qualified U.S. applicant prior to conducting an interview where it requested employment verification from the applicant but "[n]o expression of effort or intent to obtain such verification" was offered to Employer. Shinryo Midwest, Inc , 90-INA-571 (Jan. 31, 1992). However, in Berg & Brown, Inc. , 90-INA-481 (Dec. 26, 1991), another panel concluded that Employer's request for a portfolio and references prior to an interview of a seemingly qualified applicant was "unusual" and "dilatory" and had the effect of discouraging applicants. In 3541 Riverdale Avenue Corp. , 92-INA-271 (Mar. 17, 1993), another panel held that Employer improperly requested verification of dishwashing experience from 51 applicants prior to an interview where "at least 14 (applicants) listed previous qualifying job experience as dishwashers." The panel noted that this was particularly true where a review of the applicant's materials "suggests that many of the applicants may be illiterate or semi-literate."

An employer may not reject a U.S. worker by stating that it could not verify his or her work history where the employer never afforded the applicant an opportunity to provide the information. Melillo Maintenance, Inc. , 91-INA-312 (Jan. 6, 1993).

Employer failed to recruit workers in good faith where it sent follow-up letters to applicants requiring the applicants to submit excessive information, including university academic records, when no education was required for the job, and letters of reference from employers with regard to any position in the industry related to the position. This requirement had a chilling effect, which discouraged U.S. applicants from continuing to pursue the position. The panel noted that in fact none of the U.S. applicants responded to the letter. Ryan, Inc. , 94-INA-606 (Sept. 12, 1995).

Although an applicant may be rejected for failure to provide verification of employment history and credentials, an applicant may not be rejected on this basis without first the an employer requesting verficiation from the applicant and failing to receive it. In the instant case, there was no evidence that an applicant failed to provide verification of employment history and credentials and certification was therefore properly denied. Keiter Constr. Co. , 94-INA-188 (July 17, 1995).

Where Employer rejects 2 U.S. workers for failure to produce references and letters of recommendation as instructed on the Employer's notice of interview, then Employer lawfully rejected them because the Employer's unchallenged recruitment report demonstrated that Employer requested verification. Ernie Vejar Landscape Maintenance , 94-INA-189 (July 19, 1995).

In the NOF, the CO specified that Employer could not reject any of the U.S. applicants based on inability to verify work history or poor references. In remanding the case, the Board held that the CO should not have summarily rejected the Employer's use of references and work verifications as "unstated requirements," but should have analyzed whether the Employer adequately documented rejection of the applicants based on references or work verifications. Petit Jean Poultry , 94-INA-318 thru 372 (Aug. 15, 1996).

Employer applied for certification for the position of Manager, Grocery. The Employer rejected 1 candidate who, after being instructed to do so, failed to verify past employment with previous employers. The CO denied certification on the basis of, inter alia , bad faith recruitment. The Board reversed the CO on the basis of bad faith recruitment but affirmed on other grounds. The Board noted that employers may request verification of employment history and educational credentials, and may reject an applicant based on failure to provide such information. See Al-Ghazi Sch. , 88-INA-347 (Mar. 31, 1989); Sunee Kim's Enter. , 87-INA-713 (July 22, 1988). See also Shinryo Midwest Inc. , 90-INA-571 (Jan. 31, 1992) (upholding the rejection of a qualified U.S. candidate prior to conducting an interview where Employer requested employment verification from the employee but received no indication that verification would be forthcoming). In the instant case the Board reasoned that no evidence suggested that the Employer's request was dilatory because the applicant had already been interviewed. In addition, the Board found that the Employer's request was not onerous because only 1 place of employment was at issue. Further, Employer attempted unsuccessfully to contact the candidate after the candidate failed to provide the information. Family Liquors & Grocery , 95-INA-125 (Dec. 23, 1996).

Employer applied for certification for the position of Manager, Grocery. The Employer rejected 1 candidate who, after being instructed to do so, failed to verify past employment with previous employers. The CO denied certification on the basis of, inter alia , bad faith recruitment. The Board reversed the CO on the basis of bad faith recruitment but affirmed on other grounds. The Board acknowledged Berg & Brown, Inc. , 90-INA-481 (Dec. 26, 1991) (affirming the denial of labor certification where the CO had questioned the Employer's request for a portfolio and references prior to interview and 1 month after having received the application and where Employer failed to justify the request). In the instant case the Board reasoned that no evidence suggested that the Employer's request was dilatory because the applicant had already been interviewed. In addition, the Board found that the Employer's request was not onerous because only 1 place of employment was at issue. Further, Employer attempted unsuccessfully to contact the candidate after the candidate failed to provide the information. Family Liquors & Grocery , 95-INA-125 (Dec. 23, 1996).

In a recent case, the Board cited Al-Ghazali Sch. , 88-INA-118 (Nov. 29, 1990) (en banc) and Sunee Kim's Enter. , 87-INA-713 (July 22, 1988), in upholding a CO's denial of labor certification. The Board noted that "it is well settled that an employer may request verification of a employment history and educational credentials, and may reject applicants based on failure to provide such verification." The Employer had applied for the position of "diamond assorter" and rejected an applicant because he "lacked proficiency in appraising diamonds for industrial and commercial use." Their basis for this rejection was the inability of the applicant to answer questions concerning "properties of diamonds or distinguish among different types of diamonds." Notable about the resume was that it indicated 4 years of experience as a diamond sorter. The Board reasoned that Employer failed to request that the applicant "provide verification of either his references or his educational credentials, even though the absence of such support was of such paramount importance as to be a major reason for the Employer's rejection of this candidate..." Wedding Bands & Co., Inc. , 95-INA-248 (Jan. 6, 1997).

V. Willingness

1. Applicant's salary demands

Employer improperly rejected qualified U.S. worker based on applicant's statement during the interview that he wanted a higher salary. The Board has consistently held that where an applicant expresses a desire for a higher salary, Employer must actually offer applicant the position and allow the applicant the opportunity to reject the offer. Kaprielian Enter. , 93-INA-193 (Jun. 13, 1994).

An employer's conclusory statement that the U.S. worker was disinterested in the position because he wanted a higher position and higher salary constituted an unlawful rejection as the record did not evidence that the applicant was offered the position at the listed salary and refused it. Johnny Rockets , 90-INA-311 (Dec. 8, 1991). See alsoGoodkind & O'Dea, Inc. , 92-INA-430 (Feb. 28, 1994); Obermeyer Ski Wear , 91-INA-268 (Aug. 14, 1992).

Failure to offer the job to a U.S. worker at the wage listed constitutes a failure to test the applicant's willingness to work. Produce Management Serv. , 91-INA-96 (May 13, 1992).

The fact that a U.S. worker is "'not impressed'" with the salary offered does not constitute sufficient grounds for a lawful rejection. The panel concluded that the employer erred in failing to offer the job to the applicant at the listed salary thereby affording him the opportunity to reject the job. United Cerebral Palsy of the Island Empire, Inc. , 90-INA-527 (Aug. 19, 1992).

Labor certification properly denied where employer rejected an applicant without offering the job because the applicant "attempted to negotiate employment terms during the initial telephone contact." Warmington Homes , 91-INA-237 (Mar. 22, 1993).

Where an applicant for the position of cement mason requiring 2 years of experience has over 10 years experience, where Employer rejects the applicant because he "was overqualified and required more pay," and because trhe directive on his resume indicated that he was seeking the position of "Deputy special inspector," then certification was properly denied because an Employer's conclusory statement that a U.S. worker is disinterested in the position because he wants a higher position and salary is an unlawful rejection where evidence does not show that the applicant was offered the position at the listed salary and refused it. Keiter Constr. Co. , 94-INA-188 (July 17, 1995).

Employer offered a salary $30,000 per year for the position of "Staff Accountant." An applicant who sought employment for that position previously earned a salary of $37,000 as an accountant at Poly Peck. Currently the applicant was consulting for an insurance products firm but was seeking a position with "stability, permanence, and growth." The Employer rejected the applicant, arguing that applicant had stated that he would not accept a salary for less than $35,000. The applicant, however, stated that he never discussed salary with Employer but that he was "quite flexible" in that regard. The CO denied certification and the Board affirmed. It reasoned that the applicant's version of events was more plausible than that of Employer and applicants may only be rejected for lawful, job related reasons. First Nat. Trading Co., 95-INA-97 (Jan. 27, 1997).

Employer, a medical center, sought certification for the position of accountant and required 2 years experience in accounting or finance and a B.S. in Accounting or a business related major. Receiving 14 applications in response to its advertisement, 1 applicant was rejected due to lack of experience in the software programs used by Employer (Microsoft, Lotus 123, Excel 123 and Medisoft) and for having no previous experience in the medical facilities and no medical billing experience. The CO issued a NOF proposing to deny certification because Employer had not required applicants to have knowledge of specific software programs, medical clinic experience, or 2 years only in the position offered. In rebuttal, Employer responded that it interviewed the applicant a second time after the NOF. The Employer reported, inter alia , that the applicant would not take a position paying less then the salary paid at his current position, $3,520 per month. The Employer offered $2,700 per month. The CO denied certification and the Board affirmed due, inter alia , to the alleged salary demands. The Board cited Kaprielian Enter. , 93-INA-193 (June. 28, 1994)(holding that an applicant expressing a desire for a higher salary must actually have been offered the position so as to have the opportunity to reject it). It noted that the salary demands were not an issue after the first interview, the salary had been posted, the applicant had responded and presumably was willing to take the position. As a consequence, the Board reasoned, Employer could not rely on the alleged higher salary demands. St. George's Medical Ctr. , 95-INA-111 (Jan. 29, 1997).

2. Applicant's unwillingness to work overtime

no new cases

3. Applicant's unwillingness to commit to job for a specified period

no new cases

4. Willingness to perform the job duties [NEW]

Labor certification was properly denied where the employer offered an undocumented, subjective conclusion that the applicants would be unwilling to perform the job duties in light of the fact that the job's advertisements explicitly set forth the duties. Oscar & Barbara Lichtenstein , 91-INA-390 (Dec. 16, 1992).

5. Offering lower wage to U.S. applicants [NEW]

In a memorandum to the file, the CO noted that Employer has, in the past, offered lower wages to the U.S. applicants who applied for a job and "that the local office reported that U.S. applicants were relunctant to apply for positions with Employer because they believed there was no bona fide job opportunity." However, the panel did not affirm the denial of labor certification on this ground because the CO "did not provide any documentation from other cases, nor did she raise the issue in a Notice of Findings, where Employer would have had the opportunity to rebut the allegation." Star Cream Restaurant , 90-INA-584 (Aug. 11, 1993).

W. Unlawful discrimination

Employer, employment agency, unlawfully rejected U.S. applicant based on national origin (Russian) contrary to 656.20(c)(5). The position was for work with Department of Defense and employer indicated in rebuttal that security clearance concerns would preclude applicant of Russian origin from sensitive position. Upon remand, CO was directed to afford employer the opportunity to readvertise and specify that condition of employment is Department of Defense security clearance. Integrated Support Sys., Inc. , 93-INA-211 (Jun. 28, 1994).

X. Miscellaneous [new]

Where an Employer rejects an applicant for the position of Dressage Horse Trainer on the basis of observations made at various times of the applicant during horse shows, the certification was properly denied because, in the same way an employer cannot use information derived from an applicant's interview for another position when evalutating the applicant for the job for which certification is being sought, rejecting the Applicant as unqualified based on prior observations of the applicant is similarly without merit. Fritz R. Kundrun , 94-INA-240 (Jan. 10, 1996).

Employer rejected a U.S. applicant for the position of diamond assorter on the basis that the applicant worked for a customer of Employer and that hiring the applicant could potentially create tension with the customer. The Board afffirmed the CO's denial of certification because Employer failed to document this assertion and because the Los Angeles employers in the diamond industry were a presumably close knit industry and it seemed unrealsitic that the Employers could hire anyone that has never worked with someone else in the industry. "In any event, an employer cannot reject a willing, qualified, U.S. workerin favor of an alien because of speculation that it might cause strain in the relationship between itself and a customer." Jhaveri Diamond Corp. , 94-INA-621 (Apr. 12, 1996).

V. Evidentiary matters

A. Burden of proof

Where employer fails burden of showing that applicant not qualified because of an inability to communicate in English, employer has rejected worker for other than job related reasons. Impell Corp. , 88-INA-298 (May 31, 1989). Spizer, Inc ., 94-INA-383 (Oct. 25, 1995).

See also Whitey's Restaurant , 95-INA-58 (Aug. 22, 1996); Jay's Unocal 76 , 95-INA-66 (Dec. 27, 1996); Aero-Dyne achine Co. , 95-INA-53 (July 18, 1996); Systemhouse, Inc. , 95-INA-57 (July 26, 1996); Roy Lipman Org., Inc. , 95-INA-71 (July 26, 1996); Lobel Indus., Inc. , 95-INA-6 (Nov. 26, 1996).

Employer has the burden of production and persuasion on the issue of lawful rejection of U.S. workers. See Cathay Carpet Mill, Inc. , 87-INA-161 (Dec. 7, 1988). Denial of certification was proper where Employer rejected an applicant soley because he was overqualified. IPF Int'l , 94-INA-586 (July 24, 1996). See also Steak & Chops - the Post House , 94-INA-563 (Feb. 22, 1996) (denying certification where Employer rejected 5 applicants for the position of chef, all of whom had extensive experience and all of whom contradicted the Employer's reasons for rejection).

Employer has the burden of production and persuasion on the issue of lawful rejection of U.S. workers. See Cathay Carpet Mill, Inc. , 87-INA-161 (Dec. 7, 1988) (en banc). The Employer rejected 7 applicants for the position of construction supervisor on the basis that none of them had a B.A. in architecture. The Board found that the Employer failed to document the business necessity of such requirements and therfore had failed to meet burden of proving that 7 applicants had been rejected for lawful, job-related reasons. B.Q.E. Constr. , 94-INA-589 (Feb. 26, 1996).

Employer has the burden of production and persuasion on the on the issue of lawful rejection of U.S. workers. See Cathay Carpet Mills, Inc. , 87-INA-161 (Dec. 7, 1988) (en banc). In its recrtuitment report, the CO noted the rejection of 2 (among others) U.S. applicants on the basis that they lacked experience in air ticketing and hotel bookings. In the NOF the CO requested the documentation of the lawful rejection of the U.S. applicants. In rebuttal, Employer dropped 1 reason, lack of experience in hotel bookings, as a reason for rejection of 1 applicant. The Employer also changed the reason for dropping the 2d applicant from lack of experience in air ticketing to lack of experience making car reservations. The Board affirmed the CO's denial of certification on the basis that instead of documenting the rejection as requested, Employer changed the reasons for rejection. Fourways Travel, Inc ., 94-INA-562 (Mar. 29, 1996).

B. Requirement that employer explain or document rejection

See Kenneth G. Yun & Co. , 95-INA-49 (Dec. 3, 1996) (denying certification where Employer noted the rejection of an applicant in its recruitment report on the basis that the applicant did not want the position but wanted something more advanced, where the applicant contradicted this statement, where the NOF directed Employer to document the lawful, job-related reasons for rejecting the application, but where Employer failed to either condradict the applicant or state reasons for the rejection).

1. In general

See American Drug Stores, d/b/a Sav-On Drugs , 95-INA-37 (Oct. 3, 1996); Bellport Country Club , 94-INA-575 (June 6, 1996); Joel Atlas Skirble & Assoc. , 94-INA-373 (May 25, 1995).

Employer rejected an applicant because "he does not have no experience in E.P.D.M., wood shingles or slate shingles." However, the applicant indicated that he was qualified "because I have 20 years experience, there is not a roof that I can't handle." In the NOF, the CO required Employer to explain this discrepancy. The Employer did not submit any rebuttal addressing the discrepancy. The CO denied certification and the Board affirmed. The Board reasoned that failure to address the deficiency supported a denial of labor certification because, "[t]he burden is on Employer to establish that the applicant cannot perform the stated job duties" by providing "an objective, detailed basis for its conclusion" that the applicant was not qualified. Rafa's Roofing, 95-INA-287 (Dec. 19, 1996).

Employer sought certification for the position of Auto Mechanic for foreign automobiles. Its only requirements were 2 years of experience in the job offered. In its recruitment report, Employer rejected 1 applicant with 28 years of experience because the applicant had no experience in fuel injection. The Employer submitted no documentation to support the applicant's rejection. The CO denied certification and the Board affirmed. Citing Nationwide Body Shops, Inc. , 90-INA-286 (Oct. 31, 1991), the Board reasoned that employers must establish by convincing evidence that a U.S. applicant is unqualified for the position. Here, the Board noted, Employer had submitted no documentation to support the rejection. In addition, the Board found "it hard to believe" that someone with recent experience repairing foreign cars would lack expertise in fuel injection systems. G.M. Hotlunch Truck MFG., Corp. , 95-INA-116 (Jan. 28, 1997).

2. Illustrative cases; inadequate explanation

Labor certification properly denied where none of employer's proffered reasons for rejecting a qualified U.S. applicant were documented. Employer's contention that applicant was unwilling to relocate not documented by applicants letter questioning whether he was required to pay for transportation costs to interview. Gemini Worldwide Cargo Corp. , 93-INA-230 (Jul. 6, 1994)

Labor certification properly denied where CO questioned rejection of apparently qualified U.S. workers and employer merely responded with assertion that a number of applicants applied but very few were qualified and, of those that did, the majority did not have suitable experience. Rossier Sch. , 93-INA-306 (Jul. 14, 1994).

Labor certification properly denied where Employer failed to adequately document the rejection of two U.S. workers. One U.S. applicant was rejected because does not have verifiable references in the industry when the applicant was presently employed by a New York jewelry company. The second was rejected for lacking unstated requirements. Sandberg and Sikorski Diamond Corp. , 94-INA-108 (Mar. 31, 1995).

Labor certification properly denied where applicant meets the minimum requirements but is rejected as being "unfamiliar with our type of . . . system". Employer's response to the CO's request for documentation describing how the applicant is unqualified, that it "knows" the applicant is not qualified, is insufficient to establish lawful, job-related reasons for rejecting him. Millcraft Mfg. Corp. , 94-INA-60 (Apr. 28, 1995).

Labor certification was properly denied where the employer submitted an inconsistent recruitment report explaining that a U.S. worker's statement that he was rejected for lack of experience was attributable to the fact that the worker "probably spoke to someone in a different division who had no knowledge of the application." Triple A. Noodle Products Mfg. Corp. , 91-INA-139 (May 18, 1992). Likewise, an employer's failure "to offer an objective, detailed basis" for its rejection will support a denial of labor certification. CTS , 91-INA-175 (June 19, 1992). See also Lucky-Goldtar Int'l (Am.), Inc. , 92-INA-185 (Dec. 14, 1993)(basis for rejection of apparently qualified applicants as provided in recruitment report and later rebuttal contradictory and inconsistent).

The employer failed to document lawful, job-related reasons for rejecting a U.S. applicant where its "statement of reasons...is so vague and conclusory, that the CO had no basis on which to make an independent evaluation of Employer's rejection of (the U.S. applicant)." Great Am. Holding Co. , 90-INA-85 (Oct. 5, 1992).

The CO properly denied labor certification where the employer failed to provide "a knowledgeable employee to receive job inquiries from U.S. workers" and provide current information about the job and set-up interviews for U.S. applicants. General asonry Contracting , 91-INA-216 (Dec. 11, 1992).

General assertions by Employer of an applicant's lack of qualifications are insufficient especially where "directly contradicted the worker's statement of qualifications and experience." Arthur Domrose , 91-INA-386 (Dec. 11, 1992).

The CO properly denied labor certification where the "Employer's unsupported statement that (the U.S. worker) was rejected because he lacked experience in taxes and auditing is directly contrary to (the U.S. worker's) representations of over 10 years of work experience in auditing and over one year of experience providing tax services to about 40 commerical clients." Anil Srivastava & Assoc. , 91-INA-238 (Dec. 11, 1992).

Labor certification was properly denied where the U.S. worker's resume indicated 11 years of experience in the job offered as sample maker a well a knowledge of sewing machines but was rejected by Employer as "unable to operate or 'even thread the needle' on a sewing machine." The panel concluded that Employer's rejection was not sufficiently documented given the applicant's represented qualifications. Niemor Contractors, Inc. , 91-INA-19 (Feb. 3, 1993).

Employer failed to document its rejection of 90 applicants by providing only a generalized statement of rejection which included rejection based on lack of experience where the job offered did not require such experience. Dumont Plaza Hotel , 91-INA-129 (Feb. 3, 1993).

Labor certification properly denied where employer only generally asserted that most of the applicants were uninterested in the job and of 12 who remained interested, 6 cancelled or failed to show for interview and 6 were rejected as unqualified. The panel did not accept the employer's argument that the number of applicants involved made a more specific recruitment report impractical. Baker Commodities, Inc. , 93-INA-109 (Feb. 22, 1994).

Labor certification was properly denied where employer's proffered reason for rejecting a U.S. applicant as having "no experience" was directly contradicted by the applicant's resume. Employer's alternative reason for rejecting the applicant, that his experience was twenty years old and "too remote", was also contradicted in so far as the comparable relevant experience listed on the applicant's resume was more recent than Alien's. Pacemark, Inc. , 92-INA-30 (Sept. 1, 1993); See alsoMonte Bianco , 93-INA-4 (Dec. 7, 1993)(applicant met one month experience requirement and such experience, gained as late as 1989, was not too distant to be considered).

Labor certification was properly denied where basis for rejection of U.S. applicant was statement that employer's wife answered the telephone in Korean and because the applicant did not respond, he must lack required Korean language ability. Korean Presbyterian Church of East New York , 92-INA-290 (Dec. 15, 1993).

Employer failed to document lawful job-related rejection of U.S. worker based on applicant's failure to bring proof of her legal right to work in U.S. "in light of the fact that the applicant is a U.S. citizen." As no other basis for rejecting the applicant was provided, certification was properly denied. Margaret Hoffman , 92-INA-368 (Dec. 17, 1993).

Employer must document why each individual applicant was rejected. Where Employer lumps all applicants into groups as large as 47 and does not specifically state why each is unqualified, Employer has rejected U.S. applicants for other than job related reasons. California Lutheran Univ. , 94-INA-381 (July 28, 1995).

In the NOF, the CO specified that Employer could not reject any of the U.S. applicants based on inability to verify work history or poor references. In remanding the case, the Board stated that if no education or prior experience is required for the position, Employer cannot normally reject an applicant solely for lack of prior verifiable work history. However, where the Employer documents that verification of, or inability to verify, work history shows that the applicant is unreliable or unable to perform the job, that may be considered as a potentially valid basis for rejecting the applicant. The employer's documentation must provide the CO with an adequate basis to form an independent evaluation of the rejection of the applicants. Petit Jean Poultry , 94-INA-318 thru 372 (Aug. 15, 1996). See also King Wire Partitions , 95-INA-44 (Oct. 3, 1996) (denying certification where Employer initially justified the rejected of an applicant without interview for the position of cost accountant on the basis that he lacked experience, where after a second interview the Employer indicated that he was also rejected on the basis that the applicant lacked hands-on accounting experience, that he was only looking for part-time work, and that there descrepencies between his resume and interview statements because the applicant had over 5 years experience as a supervisor of cost accountants and the application permitted this experience, because an applicant's interest in part-time work is irrelevant unless he has been offered the job, and the fact that the applicant had not updated his resume from the date of his last employment is not a justification to reject the applicant).

C. CO's request for specific documentation

no new cases

D. CO's obligation to address new reason for rejection

no new cases

E. CO's concession that job requirements are not excessive

no new cases