Judges' Benchbook: Alien Labor Certification

Office of Administrative Law Judges
United States Department of Labor

Second Edition - May 1992

CHAPTER 7 - SUPPLEMENT

Supplement current through January 1997

BURDEN OF PROOF


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TABLE OF CONTENTS

I. Statutory preference favoring domestic workers

II. Employer's burden

III. Particular burdens

I. Statutory Preference favoring domestic workers

Citing Cheung v. District Director, INS , 641 F. 2d 666 (9th Cir. 1981) and Wang v. INS , 602 F.2d 211 (9th Cir. 1979), the Board affirmed the CO's denial of labor certification. The Employer had applied for certification for the position of chef in an Italian restaurant and listed 2 years of experience as a requirement in its application. However, in its advertising, Employer listed a higher experience requirement. In the NOF the CO raised this issue. In rebuttal, Employer stated that the information had been sent to the case worker and it "was the responsibility of...[her] to check for accuracy." In upholding the CO's denial of labor certification, the Board reasoned that employers have the burden of proof in certification applications. This being the case, attempts to "blame" the case worker demonstrate that "Employer does not understand that he bears the burden of proof." The Board last noted that certification was "properly denied for failure to address this issue alone." Giaquinto Family Restaurant , 96-INA-64 (May 15, 1997).

II. Employer's burden

Citing 20 C.F.R. § 656.2(b) (placing the burden of proof on the employer in applications for labor certification), the Board affirmed the CO's denial of labor certification. The Employer had applied for certification for the position of chef in an Italian restaurant and listed 2 years of experience as a requirement in its application. However, in its advertising, the Employer listed a higher experience requirement. In the NOF the CO raised this issue. In rebuttal, Employer stated that the information had been sent to the case worker and it "was the responsibility of...[her] to check for accuracy." In upholding the CO's denial of labor certification, the Board reasoned that employers have the burden of proof in certification applications. This being the case, attempts to "blame" the case worker demonstrate that "Employer does not understand that he bears the burden of proof." Giaquinto Family Restaurant , 96-INA-64 (May 15, 1997). See also Marsha Edelman , 94-INA-537 (Mar. 1, 1996).

III. Particular burdens

If the job offered invokes technical requirements, the employer carries the burden to submit understandable evidence. Emerson Electric Co. , 90-INA-486 (Feb. 19, 1992).

Burden of proof in alien certification is on the employer. 20 CFR §656.2. Universal Diesel Services , 94-INA-250 (Oct. 4, 1995).


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