Judges' Benchbook: Alien Labor Certification

Office of Administrative Law Judges
United States Department of Labor

Second Edition - May 1992

CHAPTER 4 -- SUPPLEMENT

Supplement current through January 1997

ALIEN'S QUALIFICATIONS FOR THE JOB

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TABLE OF CONTENTS

I. Requirement that alien possess stated job requirements

II. Proof of alien's qualifications, generally

III. Equivalency of educational degrees

IV. Qualifications of physician or surgeon

V. Licensing requirements

VI. Requirement that alien obtain required license for job within proximate time of entry into United States [new]

I. Requirement that alien possess stated job requirements

Where the alien did not possess the minimum job requirements at the time of hire, certification was properly denied. Hagopian & Sons, Inc. , 94-INA-178 (May 4, 1995).

The employer may not offer more favorable conditions of employment to the alien. Belha Corp. , 88-INA-24 (May 5, 1989). Universal Diesel Services , 94-INA-250 (Oct. 4, 1995).

Employer applied for certification for an engineering position. In its advertising it required inter alia experience designing medical devices. However, Alien did not have this experience labor certification properly denied. The Board found that treating Alien more favorably than other applicants would have a chilling effect on U.S. applicants who may not have experience designing the medical devices. Applied Medical Resources , 94-INA-183 (July 17, 1995). See also , American Way Importing Corp. , 95-INA-22 (May 23, 1996) (denying certification for the position of accountant where there was no proof that the Alien had passed an accounting test, something that Employer required from all applicants); City of Danbury, Engineering Dept. , 95-INA-69 (Aug. 16, 1996).

Employer applied for certification for the position of electronic technician in an electronics repair business. The job duties included the detection of problems and the repair of microwave ovens. Employer required 2 years of experience. The CO denied certification for, among other things, Employer's failure to document that the Alien had experience with microwave ovens. The Board affirmed. Citing Charlie Brown's , 90-INA-345 (Sept. 17, 1991) and Pennsylvania Home Health Services , 87-INA-696 (Apr. 7, 1988), the Board noted that employers must establish that an alien possesses the stated minimum requirements for the position. Here, the Board reasoned that Alien failed to document experience with microwave ovens in any of his employment prior to his present position with this Employer. Active Electronics, Inc. , 95-INA-160 (Dec. 23, 1996).

Employer applied for certification for the position of electronic technician in an electronics repair business. The job duties included the detection of problems and the repair of microwave ovens. Employer required 2 years of experience. The CO denied certification for, among other things, Employer's failure to document that Alien had experience with microwave ovens. The Board affirmed. Citing Marston & Marston, Inc. , 90-INA-373 (Jan. 7, 1992), the Board noted that labor certification is properly denied where an alien fails to meet the stated job requirements for the position. Here, the Board reasoned that Alien failed to document experience with microwave ovens in any of his employment prior to his present position with this Employer. Active Electronics, Inc. , 95-INA-160 (Dec. 23, 1996).

Employers must offer U.S. applicants the minimum actual requirements for the position. Labor certification was properly denied where Employer failed for the position of child tutor to demonstrate that the Alien possessed the 2 required years of experience for the position. Richard & Teresa Hoover , 94-INA-380 (July 28, 1995).

Employer applied for certification for the position of cook, domestic, live-in or live-out. 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 Employer hired Alien without 2 years 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 Charley Browns , 90-INA-345 (Sept. 17, 1991), the Board noted that employers must establish that an alien possesses the stated minimum requirements for the job offered. The Board reasoned that, although Employer had provided supporting documentation indicating that Alien had experience in the duties of the position, this documentation amounted only to 1 and one half years of experience. Alien's assertions of more experience could not be considered because an alien's assertion without supporting documentation does not demonstrate that he or she meets the minimum requirements for the position. Mr. & Mrs. Marc Cohen , 95-INA-150 (Dec. 5, 1996).

Employer sought certification for the position of manager of heavy truck garage. The position required experience as a manager of an automobile-heavy truck station. In the FD, the CO found that Employer had twice been vague about Alien's experience. The panel found that Employer's failure to provide this information constituted a failure to respond to the CO's reasonable request for information and was proper grounds for denial of certification. Employer failed to adequately document that Alien was qualified for the position and Employer's unsupported statement that Alien met the minimum job requirements did not constitute documentation. Orland Truck Stop , 94-INA-612 (July 23, 1996).

Employer, involved in the business of "plant equipment machinery," sought labor certification for the position of "plant engineer." Employer required B.S. in Mechanical Engineering coupled with 5 years of experience in the job offered. Some of the duties included "[d]irects and coordinates, through engineering and supervisory personnel, the design, construction and maintenance of plant equipment and machinery." Employer submitted a recruitment report noting the rejection of 23 applicants. One was rejected without interview because he "did not have 5 years experience as a plant engineer but rather his experience was in sales engineering and management." Employer noted that "[o]ur offered position is for a plant engineer with a minimum of 5 years..." experience while the applicant "indicated that he was employed...from 1973 to 1981 as a `managing director, plant and technical manager.'" Employer continued by noting that during the 8 years when he gained this experience he also received a B.S. degree which, Employer inferred, demonstrated that he could not have 5 years of experience in the job offered (it takes at least 4 to acquire a B.A.). The CO denied certification and, citing Marston & Marston, Inc. , 90-INA-373 (Jan. 7, 1992) (holding that employers are violative of § 656.21(b)(6) where they demand of U.S. applicants experience that aliens themselves do not possess), the Board affirmed, noting that Employer "had not read the applicant's resume very well." It noted that the applicant had plant management experience between 1973 to 1978, the applicant's experience in which appeared to be similar to the duties in the job offered, "directs and coordinate." Furthermore, the applicant earned an M.S. degree and not a B.S. degree between 1973 and 1981 which, because it takes 2 years rather than 4, would still give him the 5 years required experience. Secom International Inc. , 95-INA-110 (Sep. 25, 1996).

Employer, involved in the business of "plant equipment machinery," sought labor certification for the position of "plant engineer." Employer required a B.S. in Mechanical Engineering coupled with 5 years of experience in the job offered. Alien's qualifications were described as 10 years experience as a plant engineer in a flour mill in Iran where his duties were described as "manufacture engineering supervision, design maintenance, etc." Employer submitted a recruitment report noting the rejection of 23 applicant. One applicant was rejected after a telephone interview because "his experience was primarily in air conditioning and energy efficiency design rather than the type of mechanical engineering Employer performed with...lasers, surface mounters, print pressers, etc." The Board affirmed the CO's denial of labor certification. Citing O'Malley Glass & Millwork Co. , 88-INA-49 (Mar. 13, 1989) (holding that an employer must state its actual minimum requirements for the position accurately and completely in both its application and recruitment advertising), it noted that, although Employer rejected the applicant because he did not have experience in Employer's type of business, it was difficult to determine Employer's exact line of business. Moreover, nothing indicates that the Alien had experience in Employer's line of business either. Secom International Inc. , 95-INA-110 (Sep. 25, 1996)

II. Proof of alien's qualifications, generally

A. Experience in the job duties

Labor certification properly denied where the job offered requires two years experience with supervisory and managerial duties, but Employer only documented that Alien worked from "1984 to May 1986" as an Engineer. Databyte Technology, Inc. , 93-INA-263 (Jun. 28, 1994).

Labor certification properly denied where Employer rejected a U.S. applicant meeting the minimum stated requirements for lack of specific experience in certain listed job duties. The CO properly required that Employer document that Alien possessed experience in these same duties prior to being hired by Employer and Employer's failure to do so justified denial. Studio Marble, Inc. , 93-INA-313 (Aug. 25, 1994). See also Trans-USA Shipping Corp. , 93-INA- 490 (Nov. 16, 1994) (denying certification where Employer failed to document that Alien possessed accounting degree required of U.S. applicants); A & S Case Company, Inc. , 93-INA-542 (Dec. 21, 1994) (denying certification where Employer failed to document that Alien met special requirements, including ability to read layouts, listed for the position).

Labor certification properly denied where the job offer requires two years of college and two years experience in the job, listed as Tutor with specific duties listed as teaching "English, History, Social Study, Chinese & Math . . .", but Alien's own experience as listed included teaching Real Estate Administration, Chinese and "other courses". The CO reasonably requested that Employer clarify Alien's background to determine whether Alien met the actual minimum requirements and Employer's failure to comply was grounds for denial. Adler K. Chia , 93-INA-153 (Jan. 31, 1995).

Employer failed to prove that Alien gained the required experience in the job duties of the current position, quality control engineer, through prior experience as a production superintendent. The panel noted that while the DOT category of production superintendent includes certain of the same duties, the DOT also notes that the occupational information therein "reflects jobs as they have been found to occur, but they may not coincide with the contents off a job as performed in particular establishments or in certain localities." Accordingly, as Employer did not present evidence of Alien's previous duties performed, Employer failed to meet its burden of proving that Alien possessed the minimum requirements for the current job when hired. Best Trend Inc. , 94-INA-170 (May 4, 1995).

Employer applied for certification for the position of cook, domestic, live-in or live-out. 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 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 Advanced Business Communications, Inc. , 99-INA-36 (June 30, 1989), the Board noted that an alien's experience in the job duties may be used as proof of his or her qualifications for the position. However, the Board reasoned that, although Employer had provided supporting documentation indicating that the Alien had experience in the duties of the position, this documentation amounted only to 1 years of experience. Alien's assertions of more experience could not be considered because an alien's assertion without supporting documentation does not demonstrate that he or she meets the minimum requirements for the position. Mr. & Mrs. Marc Cohen , 95-INA-150 (Dec. 5, 1996).

When employer's explanation of the alien's experience is purposefully vague after the employer is given two chances to explain the experience with adequate specificity, the alien cannot be said to meet the minimum job requirements and certification is properly denied. Orland Truck Stop , 94-INA-612 (Jul. 23, 1996).

Employer's requirement for 4 years experience as a mechanic was within DOT specifications and thus valid; the CO's assertion that US worker's experience (3 years of experience 15 years ago as a service station owner/operator which included some mechanic work) was sufficient to perform the duties of auto mechanic was conclusory. Where US worker does not meet legitimate minimum requirement, burden shifts to CO to prove that the applicant was qualified (citing Mindcraft Software, 90-INA-328 (Oct. 2, 1991), Houston usic Institute, Inc., 90-INA-450 (Feb. 21, 1991)). Denial of certification reversed. Noki's Car Repair , 94-INA-428 (Dec. 16, 1996).

Denial of certification affirmed because Employer (l) did not demonstrate that Alien had experience in the actual job offered prior to being hired by Employer (an actual minimum requirement) because he did not have prior experience with "the control of exported technical equipment" and also (2) failed to show that Employer could not feasibly hire/train a US worker. Zigzag Venture Group , 94-INA-532 (Aug. 1, 1996).

Where two years of experience was requirement, Alien's post secondary degree may not serve "Double duty" as part of that required experience as well, where experience and education are two separate requirements. Capricorn Systems, Inc. , 93-INA-333 (Aug. 30, 1995).

B. Weight of undocumented assertions

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

Employer applied for certification for the position of cook, domestic, live-in or live-out. 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 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 Wings Wildlife Production, Inc. , 90-INA-69 (Apr. 23, 1991); University of Arizona , 88-INA-368 (July 17, 1989), the Board noted that an employer's unsupported statement that the alien meets the minimum requirements does not constitute adequate documentation that the alien meets those requirements. The Board reasoned that, although Employer had provided supporting documentation indicating that Alien had experience in the duties of the position, this documentation amounted only to 1 and one half years of experience. Alien's assertions of more experience could not be considered because an alien's assertion without supporting documentation does not demonstrate that he or she meets the minimum requirements for the position. Mr. & Mrs. Marc Cohen , 95-INA-150 (Dec. 5, 1996).

An employer must show that the alien possessed all of the stated requirements at the time of hire. See Wings Wildlife Productions, Inc. , 90-INA-69 (Apr. 23, 1991). Employer submitted affidavits from 2 of Alien's friends to document her experience. One friend could only attest to 4 years of the employment and neither expressed familiarity with the Alien's having performed all of the functions in the job offer. The Affidavits are inadequate documentation. Amos Construction, Inc ., 94-INA-455 (Oct. 6, 1995).

An Alien's mere assertion that he or she had the requisite experience is insufficient documentation of such experience. Siam Hotel, Inc. , 87-INA-537 (Nov. 24, 1987). Alien inaccurately stated her work experience by deleting reference to her employment with Employer. In addition, the only attempt to document Alien's past experience was securing affidavits from 2 of Alien's friends. One friend could only attest to less that 4 years of experience and neither of the friends could attest to Alien having performed all the functions of the job offer. Therefore, the affidavits constitute inadequate documentation. Sew Beautiful, Inc ., 94-INA-438 (July 14, 1995).

The employer must establish specifically that the alien possessed all of the stated requirements at the time of hire. See Wings Wildlife Productions, Inc. , 90-INA-69 (Apr. 23, 1991). Alien inaccurately stated her work experience by deleting reference to her employment with Employer. In addition, the only attempt to document Alien's past experience was securing affidavits from 2 of Alien's friends. One friend could only attest to less that 4 years of experience and neither of the friends could attest to the Alien having performed all the functions of the job offer. Therefore, the affidavits constitute inadequate documentation. Sew Beautiful, Inc ., 94-INA-438 (July 14, 1995).

Employer applied for certification for the position of cook, domestic, live-in or live-out and required 2 years of experience in the job offered. The CO issued a NOF proposing to deny certification because, among other reasons, it appeared as if Employer hired Alien without the required experience. In rebuttal, Employer argued that Alien had experience in the job duties of cook, domestic as opposed to experience in 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 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 Alien's assertions of more experience could not be considered because Alien's assertion without supporting documentation does not demonstrate that he or she meets the minimum requirements for the position. Here, although Employer 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). See also 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 sought certification for the position of manager of heavy truck garage. The position required experience as a manager of an automobile-heavy truck station. In the FD the CO found that Employer had twice been vague about Alien's experience. The panel found that Employer's failure to provide this information constituted a failure to respond to the CO's reasonable request for information and was proper grounds for denial of certification. Employer failed to adequately document that Alien was qualified for the position and Employer's unsupported statement that Alien met the minimum job requirements did not constitute documentation. Orland Truck Stop , 94-INA-612 (July 23, 1996).

C. Scope of admission when NOF not answered directly

no new cases

D. CO's reasonable request for information

Employer sought certification for the position of manager of heavy truck garage. The position required experience as a manager of an automobile-heavy truck station. In the FD, the CO found that Employer had twice been vague about Alien's experience. The panel found that Employer's failure to provide this information constituted a failure to respond to the CO's reasonable request for information and was proper grounds for denial of certification. Employer failed to adequately document that Alien was qualified for the position and Employer's unsupported statement that Alien met the minimum job requirements did not constitute documentation. Orland Truck Stop , 94-INA-612 (July 23, 1996).

III. Equivalency of educational degrees

A. Requirement of adequate documentation

Labor certification properly denied where the minimum stated educational requirement was a master's degree in computer science, engineering, or business administration and Employer failed to document that Alien's master's degree in Marketing met the stated degree requirement. Syntel, Inc. , 93-INA-55 (Jun. 9, 1994).

B. Eligibility for degree

no new cases

C. INS equivalency regulations

no new cases

D. Medical degree [new]

Labor certification denied where educational requirement for gynecologist position were necessarily greater for U.S. workers. Because the educational requirements for a medical degree in the U.S. are generally 11 years, Employer could not specify a four year college medical degree, which Alien received in Iran. 100 Plaza Clinical Lab , 93-INA-288 (Aug. 17, 1994).

E. Vocational education [new]

Denial of certification reversed where Employer required nine months of hotel restaurant training that Alien was able to obtain abroad during his "high school years". The CO found the requirement afforded Alien preferential treatment because U.S. applicants who received a secondary education that did not offer such training would be required to take a nine month post-secondary course. The panel, however, noted that Employer specifically stated that it would accept such training from any source and "anyway, a U.S. resident or citizen educated in a different country or perhaps a different part of this country, could have fulfilled this requirement in a secondary school setting." The panel concluded that in order to avoid affording Alien any preference, Employer would have to require Alien to repeat the same training in a post- secondary setting, a requirement deemed unreasonable. Avanti Restaurant & Club , 93-INA-320 (Sep. 27, 1994).

IV. Qualifications of physician or surgeon

no new cases

V. Licensing requirements

Where CO reasonably determines that the job duties match a DOT description which requires licensing, the employer bears the burden of proof on rebuttal, that a license is not required. Mega Nursing Services, Inc. , 93-INA-105 (Jul. 13, 1994) ( dec. on recon .).

Rahbar Construction Co. , 95-INA-48 (Dec. 2, 1996) (denying certification for the position of structural engineer where Employer failed to document as requested by the CO that Alien had a license to work as a structural engineer and where Employer submitted a general contractor license instead because the contractor license did not authorize Employer to work as a structural engineer).

VI. Requirement that alien obtain required license for job within proximate time of entry into United States [new]

In Perla Tate, M.D. et al. , 90-INA-175, 225, 275, 331, 401, 583, 592-593, 91-INA-4, 5, 7, 22, 82, 151 (Dec. 4, 1992) (en banc), aff'd. on recon. (Feb. 10, 1993) (en banc), the Board addressed the issue of whether sponsoring employers could properly seek permanent labor certification for unlicensed alien physicians and a physician's assistant. Because Aliens graduated from unaccredited institutions, New York State law requires that they complete at least three years of residency training prior to obtaining a license which is required to perform the jobs offered as physicians. Likewise, the physician's assistant is required to complete a two year training program or pass a national certifying examination. As a result, Aliens in these cases would not be able to perform the jobs offered until two to three years after their entry into the United States.

The Board concluded that the job opportunities were not in contravention of the provisions at 20 C.F.R. § 656.20(c)(7) inasmuch as Aliens would not perform the jobs until they are licensed and the terms, conditions, and occupational environment of the jobs were not contrary to Federal, State, or local law. However, the Board upheld the denial of permanent labor certification pursuant to § 656.20(c)(4) which requires that an employer "will be able to place the alien on the payroll on or before the date of the alien's proposed entrance into the United States." The Board concluded that this regulation requires that Aliens be able to perform the jobs for which permanent labor certification is granted upon entry into the United States.

Thus, the Board determined that the Aliens in Perla Tate must be able to obtain their license within a proximate time of their entry into the United States and through a relatively ministerial process. The Board then concluded that a three year residency program or, in the case of a physician's assistant, a two year training program was neither ministerial in nature nor proximate to Alien's entrance into the United States.

Associate Chief Judge Guill concurred with the majority and emphasized that, where an applicant fails to meet Employer's stated, minimum job requirements, regardless of whether the applicant is an alien or a U.S. worker, then he or she is properly rejected. Judge Clarke also concurred with the majority but would add that the sponsoring physicians are not employers within the meaning of the Act.

Chief Judge Litt dissented from the decision to state that labor certification should have been granted in these cases because there is a shortage of physicians and the Board is not empowered to review an alien's qualifications for the job; rather, it may only assess whether there are no U.S. workers who are willing, able, available, and qualified for the job and that employment of the Aliens will not have an adverse impact on the wages and working conditions of U.S. workers.

See also The Mary Imogene Bassett Hosp. , 92-INA-232 (Aug. 26, 1993); Downey Veterinary Hospital , 93-INA-17 (July 19, 1993); Schnabel Engineering Assoc., 92-INA-286 (July 19, 1993) (applied Perla Tate to an engineering position where Alien did not possess the required WACEL Soil I and Nuclear Gauge Testing certificates); Thirty Kingsbridge Group, Inc. , 90-INA-337 (Feb. 24, 1993); Mahmood Quereshy, .D. , 91-INA-338 (Feb. 24, 1993).

Labor certification denied where Employer's rebuttal does not indicate that Alien's successful completion of the licensing requirement is obtainable within a proximate time of the Alien's entry into the U.S. through the completion of a ministerial task process. Syed S. Taj (Dr.) , 94-INA-1 (Jul. 28, 1994) (citing to Perla Tate, M.D., et. al. , 90-INA-175 (Dec. 4, 1992) (en banc)). See also Joseph Graziani, Ph.D. , 93-INA-557 (Dec. 14, 1994).

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