BALCA Benchbook - Chapter 31 Supplement (January 1997) | U.S. Department of Labor

Judges' Benchbook: Alien Labor Certification

Office of Administrative Law Judges
United States Department of Labor

Second Edition - May 1992

CHAPTER 31 - SUPPLEMENT

Supplement current through January 1997

TERMS OF EMPLOYMENT

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TABLE OF CONTENTS

I. Regulatory requirement that employment terms and conditions are not contrary to law

II. Violation of a legal obligation incidental to employment

III. Licensing requirements

IV. Prohibition applies to employment terms, not to the alien's work status

I. Regulatory requirement that employment terms and conditions are not contrary to law

Labor certification denied where Employer's business address was in a residentially zoned area. The CO properly questioned whether the job opportunity violated local law contrary to the requirements at § 656.20 (c)(7). Because Employer failed to submit evidence documenting that the location is zoned for business, certification was properly denied. Good Hope International, Inc. , 93-INA-199 (May 24, 1994).

Where the employment application specified a daily work schedule of 9:00 a.m. to 5:00 p.m. for a total of forty hours per week, it was harmless error for Employer to fail to state the work schedule in its advertisement. The labor market was fairly tested and it is reasonable to suppose that any applicant answering the advertisement would have made an inquiry regarding the hours. Gianni Leatherwear , 90-INA-573 (Mar. 10, 1992). See also Dr. Jerard Hurwitz , 94-INA-587 (July 24, 1996).

II. Violation of a legal obligation incidental to employment

III. Licensing requirements

Labor certification denied where Employer failed to indicate if the Alien's successful completion of the licensing requirement was obtainable within a short time upon entry into the U.S. through the completion of a ministerial task. Further, the Panel noted that because the Alien was not qualified at the time of filing the labor certification application, there was no current job offer. Syed S. Taj (Dr.) , 94-INA-1 (Jul. 28, 1994) ( citing Perla Tate, M.D., et. al. , 90-INA-175 (Dec. 4, 1992) ( en banc )).

Labor certification denied where the CO properly categorized the position as an Occupational Therapist rather than an Assistant Occupational Therapist as maintained by Employer. Consequently, because the Alien did not possess the requisite State license, employment was contrary to State law and in violation of 20 C.F.R. § 656.20 (c)(7). oreover, because obtaining the requiste license required more than a ministerial act, certification could not be granted under the rationale of Perla Tate, M.D., et. al. , 90-INA-175 (Dec. 4, 1993) ( en banc ).

IV. Prohibition applies to employment terms, not to the alien's work status