Bona fide job opportunity: certification denied where the only requirement listed in the ETA 750A was a
master's degree in civil engineering, but the advertisement listed numerous requirements such as
eight years of experience, fluency in French, etc: the advertisement also listed a wage lower than
the wage listed on the ETA750A
Bona fide job opportunity: two U.S. applicants were admittedly qualified, but were subjected
to a second interview and to delayed hiring: panel affirmed CO's finding that Employer failed to establish
existence of a bona fide job opportunity: panel noted that the case could have been decided on
unlawful rejection of U.S. workers grounds
Rejection of U.S. workers: Employer sought a computer programmer/analyst position and
listed on the ETA 750A job requirements of a bachelor's degree in engineering or computers
and one year of experience: the Employer rejected a U.S. applicant who meet the minimum
requirements listed on the ETA 750A based on tests administered during the interview and lack
of experience with databases and certain software applications: Employer's rebuttal failed to state
how the experience in the specific computer languages and programs was necessary to perform
the job opportunity, which the CO had identified as an entry-level, training position: since the applicant
meet the qualifications stated in the ETA 750A, labor certification was properly denied
Rejection of U.S. workers: undisclosed requirement: ETA 750A, box 15, "
Other Special Requirements" was created to afford
employers the opportunity to list their particular requirements: By
failing to specify these additional requirements, the Employer did not put the local
job-service personnel and/or the CO on notice, and they were unable to determine whether
such a requirement is proper. Bell Communications Research, Inc., 1988-INA-26
(Dec. 22, 1988) (en banc).
Good faith efforts to recruit: Creative Cabinet/Loma Linda Foods "as soon as possible" standard: where only five applicants,
recruitment was local, and the position did not require extensive credentials, 14 day delay before letters mailed to four of the applicants and 20-day delay
before attempting phone call to fifth applicant did not constitute good faith efforts to recruit
Bona fide job opportunity: Employer first applied for a Physician Assistant but later amended the application to state
an opening for a Medical Records Administrator, a job whose duties were not similar to the original application: the CO
raised the issue of whether the Employer had a bona fide job opportunity: in rebuttal, the Employer indicated that the
person who currently filled the Medical Records position was leaving for personal reasons: in the FD, the CO found that
there was no current job opening: affirmed - panel noted that there was no evidence that there was a job opening to
which a qualified U.S. applicant could be referred at the time of the filing of the application or even at any specific date
in the future.
Unduly restrictive job requirement: employer failed to establish business necessity for a two year
experience requirement for a shipping clerk position: SVP was 6 months to one year
Full time employment: landscaper: Employer ignored most of the CO's specific documentation
requests (e.g., payroll records showing winter employment) and simply supplied a statement
to the effect that the Aliens' work was essential and a list of winter time projects: denial
of labor certification affirmed
Rejection of U.S. workers: experience as substitute for degree: Employer required a Bachelor's degree and
two years of experience for an officer manager position: U.S. applicant had an Associate's degree and seven
years of experience: panel affirmed CO's finding that the U.S. applicant was qualified pursuant to 20 C.F.R. § 656.24(b)(2)(ii):
the panel wrote: "The CO's explanation of the U.S.
applicant's qualifications in the NOF is consistent with long-standing policy. Pursuant to
the Handbook for Analyzing Jobs (1972), the average four-year college curriculum
(except for liberal arts) is considered the equivalent of about two years of specific
vocational preparation. See, e.g., Garland Community Hospital, 1989-INA-217 (June 20,
1991)."
Good faith efforts to recruit: CO requested copies of letters sent to applicants, but Employer only
provided a copy of blank form letter (which did not identify the employer or the job advertisement
and which provided a return address for the attorney): denial of labor certification affirmed
Unduly restrictive job requirements: business necessity: the Employer required a Bachelor's Degree in nursing for the
position of Administrator, Health Care Facility: CO questioned the nursing degree, noting that the
duties seemed to involve business administration: Employer maintained that the California Code of
Regulations required such a degree: FD rejected rebuttal, finding that the nursing degree
requirement was tailored the Alien's qualfications: panel affirmed denial of labor certification: California
regulation cited by Employer did not state that an administrator shall have a degree in nursing
Bona fide job opportunity: familial relationship between alien and employer: Alien and Employer had last name and the Alien had previously
been paid a wage much higher than the wage offer in the labor certification application: Employer's rebuttal failed to address familial relationship
issue but only stated that there was no ownership interest by the Alien: on review, the Board, while noting that familial relationship is not a per se
bar to labor certification, agreed with the CO that the rebuttal was not persuasive
Unduly restrictive job requirements: the Employer failed to establish business necessity for its four year
experience requirement for the position of Fast Food Manager: Employer had designated the position as
Manager, Food Service (Catering), but the CO reclassified the position on the finding that Employer's
menu was mostly soups, salads and sandwiches: in rebuttal, Employer provided copy of wedding catering
menu showing more complicated catering dishes: panel found rebuttal not credible to show that it was not
a deli catering business insofar as the Employer had rejected two applicants on the ground that they
did not want to work for a deli/bakery/sandwich catering shop
Alien's qualifications for the job: Employer's rebuttal evidence attempting to show
that the Alien had the requisite qualifications for the job found not credible
Actual minimum requirements: alien's qualifications: Alien's experience caring
for a single elderly woman did not establish that the Alien had the now required
experience prior to hire: current job included caring for developmentally-disabled,
verbally-abusive, handicapped and/or wheelchair-bound patients
Good faith efforts to recruit: use of questionnaire is not unlawful when used to determine the applicant's knowledge and
when the questionnaire is not a term or condition of employment, but merely asks the
same types of questions as would be asked in an interview; however, the panel affirmed the CO's denial where
the Employer's rebuttal did not submit any documentation or discussion of the person
who designed the test, the foundation for the test questions, or why any particular score
was a reasonable cutoff for minimally qualified applicants: Employer also did not document the
connection between the test and the job duties or that the test is a better indicator of the
applicant's educational and experience as listed on the resumes
Good faith efforts to recruit: although the Employer contacted the applicants soon after
receipt of the resumes, it scheduled interviews from one month to six weeks later: there were only
six applicants , the job only required one month of experience, and the recruitment was local:
Employer's undocumented assertion that neither the director of human resources nor the owner were
available until then insufficient to rebut
Unduly restrictive job requirements: business necessity: educational requirement: Bachelor
of Science degree with a major in Medical Technology: rebuttal of
unsupported, self-serving statements insufficient: attorney's factual theory not evidence if
not supported by statemetns of person with knowledge of the facts
Unduly restrictive job requirements: business necessity: two year experience requirement in
cooking Italian and Brazilian cuisine: Employer's rebuttal statement that such cooking requires
detailed knowledge implies, but does not prove, that an otherwise experienced cook could
not adapt to cook those types of cuisine within a reasonable period of taking the job.
Actual minimum requirements: alien's qualifications: Employer required one year of
experience in the job offered (repair of High Definition Projection TVs): Alien's worked as an electronics technician for the U.S.
Navy, but this did not document specific experience in the job offered
Good faith efforts to recruit: participation of attorney is a per se violation of the regulations: certified mail
return receipts listed address of attorney, the Alien's name and "labor cert" rather than the
Employer's address: on rebuttal, Employer argued that use of agent's return address was for "safekeeping" of the return receipt post cards:
the panel held that although the letter was from the Employer, on the Employer's letterhead, the interviews were
scheduled for the Employer's place of business and the letter clearly indicated the
interviews would be conducted by the Employer, "any involvement by the
Alien's agent cuts against the purpose of the regulation and is grounds for denial."
Bona fide job opportunity: CO questioned if job as Manager clearly open to qualified U.S. workers where
the Employer only had one employee: in rebuttal, Employer deleted managerial duties: panel agreed with CO
that this was not a cure: "By removing the
managerial duties, the Employer has completely changed the nature of the position."
Rejection of U.S. workers: Employer unlawfully imposed
requirements not stated on the ETA 750A on U.S. applicants such as
certifications from the Board of Education, familiarity with certain
tests a child was preparing for, computer training and experience with
the age group: certification denied
Good faith efforts to recruit: Employer failed to produce any documentation to support
its contention that it contacted three qualified U.S. applicants
Bona fide job opportunity: totality of the circumstances test: CO questioned
whether the relationship between the Employer and the Alien was more of an
association of independent professionals than a true employer-employee relationship, and
requested documentation, including information on the ability to pay the Alien's wages:
BALCA panel affirmed largely on the ground that the Alien's wage would exceed
the Employer's net income
Good faith efforts to recruit: Employer waited three weeks before contacting applications, mailed letters
scheduling interviews within five days of the scheduled date for the interview, and required applicants to
bring "all your references" to the interview: Employer also failed to provide any signed certified mail
return receipts or to show attempts at phone calls, and rejected a U.S. applicant who had three years
of experience while the job only required three months of experience, etc.: certification denied
Actual minimum requirements: alien's qualifications: Employer's proof of the Alien's prior
experience did not show supervisory skills now being required: