Judges' Benchbook: Alien Labor Certification

Office of Administrative Law Judges
United States Department of Labor

Second Edition - May 1992

CHAPTER 33 - SUPPLEMENT

MISCELLANEOUS

Supplement current through January 1997 Return to Main Text

Work stoppage

Labor certification was denied pursuant to § 656.20(c)(6)(ii) where Employer was subjected to a work stoppage. Although the work stoppage ceased prior to the filing of the labor certification applications, a "labor dispute," in the form of an unfair labor practice charge, was ongoing such that labor certification was properly denied. Elastic Stop Nut of America , 90-INA-301, 304-306, 332, 436 (Apr. 15, 1993).

Remand - CO need not in all cases consider new evidence on remand

Employer is imputed with knowledge of U.S. Applicant's Visa status during the pending application and may first bring it into issue in a motion for reconsideration. CO properly refused to consider information on remand. University of Miami, School of Medicine , 94-INA-607 (Aug. 31, 1995).

"harmless error"

The Board recently cited Gianni Leatherware , 90-INA-573 (Mar. 10, 1992), in remanding a case to the CO with directions to grant certification. The Board noted that: "[w]here a CO determines that the employer has committed a harmless error, labor certification may be granted provided that the labor market has been tested sufficiently to warrant a finding of unavailability of and lack of adverse effect on U.S. workers." Employer had applied for certification for the position of "European human resources specialist" and listed on the ETA 750A the requirement of a B.A. in hotel administration. In its advertisements, however, Employer required a "B.A. or its equivalent" The CO denied certification on the basis that "equivalent" was not mentioned on the ETA 750A form. Reversing the CO, the Board reasoned that all the advertising for the position listed the requirement of a B.A. or its equivalent rather than just "B.A." and that no U.S. workers had been prejudiced by not placing "or the equivalent" in the form ETA 750A. The Board further reasoned that Employer had explained the "experience, background and education of alien . . . and should not have to go through the lengthy process basedon one harmless failure to include the word "equivalency" on the application . . .The CO should not play `Gotcha.'" Ritz Carlton Hotel , 95-INA-265 (Jan. 29, 1997).

failure of alien to sign his statement of qualifications

Part 656.21(a)(1) requires a statement of qualifications of Alien, signed by Alien." Employer and not Alien signed the statement of qualifications. Labor certification was properly denied. Imperial Liquor Store , 94-INA-485 (May 28, 1996).