UNITED STATES DEPARTMENT OF LABOR
BOARD OF ALIEN LABOR CERTIFICATION
APPEALS
Judges' Benchbook
Second Edition - May 1992
CHAPTER 1
ACTUAL MINIMUM REQUIREMENTS/
PRIOR HIRING PRACTICES/FEASIBILITY OF TRAINING
Return to Main Headings.
Check Supplement. Note: For labor certification applications filed on or
after November 22, 1991, the effective date of the 1990
amendments to the Act, the regulations regarding actual minimum
requirements have been recodified from 20 C.F.R. §
656.21(b)(6) to § 656.21(b)(5).
TABLE OF CONTENTS
Chapter 1 ACTUAL MINIMUM REQUIREMENTS/PRIOR HIRING
PRACTICES/FEASIBILITY OF TRAINING
The employer shall document that its requirements
for the job opportunity, as described, represent the
employer's actual minimum requirements for the job
opportunity, and the employer has not hired workers with
less training or experience for jobs similar to that
involved in the job opportunity or that it is not feasible
to hire workers with less training or experience than that
required by the employer's job offer.
As to the requirement that the Employer's minimum requirements
be stated in the advertisement, see Chapter 22, III, C
(Recruitment Efforts). As to the unlawful rejection of a U.S.
applicant based on an unstated requirement, see Chapter 23, IV, T
(Rejection of U.S. Workers).
Section 656.21(b)(5) addresses the situation of an employer
requiring more stringent qualifications of a U.S. worker than it
requires of the alien: the employer is not allowed to treat the
alien more favorably than it would a U.S. worker. ERF Inc.,
d/b/a Bayside Motor Inn, 89-INA-105 (Feb. 14, 1990).
As interpreted in most Board decisions, § 656.21(b)(5)
requires an employer to document either:
(a) that the requirements it specifies
for a job opportunity are its actual minimum
requirements, and the employer has not
hired workers with less training or experience for jobs
similar to the one offered or
(b) that it is not feasible to hire
workers with less training or experience than that
required by the job offer.
(seeinfra Divisions II and III). This
interpretation stresses the placement of the two
"thats." It links the concept of actual minimum
requirements with the prior hiring practice of the employer.
An alternative interpretation is that the regulation
requires an employer to document
(a) that the requirements it specifies for a job
opportunity are its actual minimum requirements,
and
(b) the employer has not hired workers with less
training or experience for jobs similar to the one
offered, or
that it is not feasible to hire workers with less
training or experience than that required by the job
offer.
This interpretation stresses the placement of the comma after
the phrase "actual minimum requirements." It makes
actual
minimum requirements and prior hiring practices separate elements
that each must be documented. This broader interpretation
provides the CO with an alternative to "unduly restrictive
requirements" (see Chapter 32 (Unduly Restrictive Job
Requirements)) to question whether a requirement is appropriate
to a job (seeinfra Division IV).
Under the first prong of § 656.21(b)(5), an employer
must demonstrate that the requirements it specifies for the job
are its actual minimum requirements and that it has not hired the
alien or other workers with less training or experience for jobs
similar to the one offered.
An employer violates § 656.21(b)(5) if it hired the
alien with lower qualifications than it is now requiring and has
not documented that it is now not feasible to hire a U.S. worker
without that training or experience. Capriccio's
Restaurant, 90-INA-480 (Jan. 7, 1992); Office-Plus,
Inc., 90-INA-184 (Dec. 19, 1991); Gerson Industries,
90-INA-190 (Dec. 19, 1991); Rosiello Dental Laboratory,
88-INA-104 (Dec. 22, 1988); MMMats, Inc., 87-INA-540 (Nov.
24, 1987).
An employer must show that it has not previously hired
personnel for the position who do not possess the requirements
specified in the labor certification application. Texas State
Technical Institute, 89-INA-207 (Apr. 17, 1990). In Texas
State the employer, a technical school, admitted in rebuttal
that it had hired an instructor who possessed only an Associates
degree; ergo the employer did not specify the actual minimum
requirements when it called for applicants to hold a M.S. or B.S.
with additional experience. To the same effect, seeConstruction Quality Consultants, 90-INA-517 (Jan. 17,
1992).
If the employer demonstrates that the alien qualifies for
the position based solely on her experience gained with another
entity, but the alien also has experience with the employer, the
experience with the employer does not violate
§ 656.21(b)(6). SeeWilliam Lawrence Camps,
Inc., 90-INA-248 (June 24, 1991).
In order to prove that the alien gained her qualifying
experience with a different employer, the employer must
demonstrate that its ownership and control are separate and
distinct from the company where the alien gained her qualifying
experience. Salad Bowl Restaurant t/a Ayhan Brothers Food,
Inc., 90-INA-200 (May 23, 1991). Even if
the companies are not owned or controlled by the same
individuals, the employer may have to show a "distinct
operational independence" between the two entities. Obro
Ltd., 90-INA-51 (Feb. 21, 1991) (employer may not play
"musical employees" to bypass labor certification
requirements).
To determine whether the alien's experience was gained
with
the same or a different employer, the circumstances of each case
must be examined. The fundamental question is whether the
employer is circumventing the fair testing of the U.S. labor
market by shifting an alien from employment with one entity to
employment with another, thereby providing the alien with the
requisite training and experience without providing the same
opportunity to U.S. workers. SeeInmos Corp.,
88-INA-326 (June 1, 1990) (en banc) (alien shifted from
foreign entity to related American entity).
The entity with which the alien gained his qualifying
experience may be considered to be the same employer where
it:
is the employer's parent corporation,
Where all of an alien's qualifying experience is
gained while working for the parent corporation of the
employer, his employment by the subsidiary employer violates
the first prong of § 656.21(b)(6). Inmos Corp.,
88-INA-326 (June 1, 1990) (en banc).
is owned by some or all of the same parties who own the
employer,
Where three of the four shareholders of a petitioning
employer are the only shareholders of an enterprise where
the alien gained her qualifying experience, the two entities
are considered to be the same employer. Salad Bowl
Restaurant t/a Ayhan Brothers Food, Inc., 90-INA-200
(May 23, 1991).
or has a pattern of exchanging employees with the
employer.
Where the petitioning employer and the employer
providing qualifying experience to the alien were separate
entities, but the petitioning employer failed to prove that
they had "distinct operational independence," the
alien apparently gained her qualifying experience with the
same employer. Specifically, the employer appeared to play
"musical employees" with two other corporations.
Obro Ltd., 90-INA-51 (Feb. 21, 1991) (matter remanded
because of vague instructions by the CO to the
employer).
The CO must give the petitioning employer adequate notice
that it appears to be related to a prior employer of the alien,
so the petitioning employer will have an opportunity to rebut.
See Chapter 17 (Notice of Findings), regarding CO's
obligation to provide adequate notice.
In Haden, Inc., 88-INA-245 (Aug. 30, 1988), the
CO did not give the employer adequate notice that an
American entity and a foreign entity appeared to be the same
employer.
A CO's assertion that two companies have engaged in
joint ventures is not adequate notice that the companies
might be considered to be the same employer. Haden,
Inc., 88-INA-199 (July 7, 1988).
Similarly, where the CO provides vague directions to the
employer regarding the means to establish that companies
suspected of being related have distinct operational
independence, the case may be remanded for issuance of a new NOF.
Obro Ltd., 90-INA-51 (Feb. 21, 1991).
The employer must provide directly relevant and
reasonably
obtainable documentation that is requested by the CO. See
discussion of Gencorp, 87-INA-659 (Jan. 13, 1988) (en
banc) in Chapter 11, II (Evidence).
Where the employer failed to respond to the CO's
inquiry as to where the alien had obtained his qualifying
experience, certification was denied. The CO requested the
information because the alien's experience with the
sponsoring employer could not be used as qualifying
experience and because the ETA 750 B indicated that the
alien's experience with an employer related to the
sponsoring employer would not qualify him for the job.
Tecnomatix, Inc., 90-INA-510 (Jan. 31, 1992) (panel
implied that CO's request for information was reasonable
under the circumstances).
In Il Nido Ristorante, 90-INA-199 (May 23,
1991), the CO requested the identity of stockholders and an
explanation of payroll payments and personnel decisions. The
employer's provision of only balance sheets was
unacceptable.
Bare assertions and scanty documentation are not enough
to
establish that the employers are different, especially where the
CO requests specific documentary evidence. Il Nido
Ristorante, 90-INA-199 (May 23, 1991). Labor certification
may also be denied where, although it is uncontroverted that the
alien worked for a different employer, it is not established that
the experience gained with that employer was of the type now
required by the petitioning employer. SeeGlobal
Committee of Parliamentarians on Population and Development,
88-INA-209 (Mar. 12, 1990) (evidence did not establish that the
had performed the wide range of comprehensive job duties now
required by the employer in any prior employment); Hunter
College of the City of New York, 88-INA-568 (Oct. 5, 1989)
(alien's prior experience was not confirmed by the former
employer); seealso Chapter 4, II (Alien's
Qualifications for the Job) regarding proof of the alien's
qualifications generally, and Chapter 11, IV (Evidence),
regarding weight of evidence.
Where, however, the record establishes that the alien had
the requisite experience prior to being hired by the employer,
the CO's denial of certification may be reversed and
certification granted. Permanente Medical Group, Inc.,
88-INA-377 (Aug. 21, 1989).
Under the first prong of § 656.21(b)(6), an employer
may not require U.S. applicants to have the same type of
experience that the alien acquired only while working for the
employer in the same job. Central Harlem Group, Inc.,
89-INA-284 (May 14, 1991); Apartment Management Co.,
88-INA-215 (Feb. 2, 1989). § 656.21(b)(6) only proscribes
training or experience in jobs "similar" to the job for
which labor certification is sought. An employer, therefore, may
argue that the alien gained his qualifying experience while
working in a "lesser" job. To prevail, an employer must
show that the "lesser" job is "sufficiently
dissimilar" to the job offered. Brent-Wood Products,
Inc., 88-INA-259 (Feb. 28, 1989) (en banc).
The likelihood that positions will be deemed sufficiently
dissimilar increases with the number and degree of differences
demonstrated by the employer. Some employers have proved that
positions are sufficiently dissimilar by showing the following
combinations of differences:
Different levels of skill, responsibility, experience
and pay. E & C Precision Fabricating, Inc.,
89-INA-249 (Nov. 21, 1990), aff'den banc
(Feb. 15, 1991) (machine operator/machine operator
trainee).
Different levels of skill, responsibility and
expertise and performance of different duties in different
locations using different instruments. Advanced Computer
Concepts, 90-INA-91 (Aug. 2, 1991) (computer
technician/computer technician apprentice).
Different job duties and significantly different
salaries. Coleman's Certified Welding, Inc.,
90-INA-442 (Feb. 28, 1991) (submerged arc welder/assistant
submerged arc welder).
Different levels of skill, responsibility and
supervisory authority. Conde, Inc., 87-INA-598 (Dec.
11, 1987) (planner and planner/architect).
Employers failed to meet the Delitizer test in Rod
Fjellman Drywall Contractors, 90-INA-104 (Aug. 2, 1991)
(drywall finisher/drywall finisher apprentice); Valmet
Automation, 90-INA-204 (June 26, 1991) (senior software
engineer/senior systems engineer); Medici Marble and Granite,
Inc., 88-INA-219 (Oct. 29, 1990) (fabricator/assistant
fabricator); L.A. Rubber Company, 89-INA-58 (Sept. 28,
1989) (fabricator/assistant fabricator).
A nominal difference between two positions is not enough
to
establish that they are sufficiently dissimilar. Yasufumi
Enterprise Inc., 89-INA-357 (Mar. 28, 1991) (difference in
job titles alone does not establish sufficient
dissimilarity).
Kurt Salmon Assoc., 87-INA-636 (Oct. 27, 1988)
(en banc) (in an international management consulting
firm, the alien's former position as Senior Consultant to
domestic apparel industries was not sufficiently dissimilar
to the job offered of Senior Consultant to foreign nations
concerning apparel trade strategy).
Iwasaki Images of America, 87-INA-656 (May 11,
1988) ("replica maker" indistinguishable from
"custom drink and dessert replica maker").
If the "lesser" position and the petitioned
position involve very similar job duties, an employer may seek to
distinguish them on the ground that they involve different
supervisory responsibilities. When the alien has worked as an
assistant or helper to someone in the same job as the petitioned
position, and performed very similar job duties, it may be
crucial to the success of the labor certification application to
show the difference in supervisory responsibilities.
In Chilcote, Inc., 90-INA-99 (Feb. 28, 1991)
(lubeman/lubeman's helper) and Carrillo's Mexican
Restaurant, 90-INA-98 (Feb. 28, 1991) (cook/assistant
cook), one panel found that the employers did not show the
positions to be sufficiently dissimilar, highlighting the
absence of evidence that the petitioned positions involved
any supervisory duties.
However, an employer will not prevail simply by asserting that
two positions differ in terms of the relative supervisory duties.
In Lee Gelfond Chocolate, Inc., 90-INA-350
(Sept. 17, 1991), the only difference between the duties of
candymaker and chocolate figurine quality control leadperson
was an unspecified amount of training and supervisory
duties, and the employer failed to specify what percentage
of time was spent on supervisory duties. Accordingly, the
panel found that the employer had not shown the positions to
be sufficiently dissimilar.
An established hiring practice of requiring experience in
the lesser job for the greater job may bear on whether the
positions will be viewed as sufficiently dissimilar. SeeEimco Processing Equipment Co., 88-INA-216 (Aug. 4,
1989).
In Duthie Electric Corp., 89-INA-182 (Nov. 30,
1989), the employer demonstrated that generator mechanics
are customarily hired with the same minimum requirements now
being stated.
Frequently, the question of sufficient dissimilarity
arises
where the alien was a trainee for, or acted as an assistant to,
the petitioned position. Where the alien was hired as a trainee
for, or as an assistant to, the very job for which certification
is sought, the employer's burden of establishing dissimilarity
will be difficult to meet given the obvious relationship between
the positions. Delaney's Restaurant, 88-INA-174 (Oct. 30,
1991). This is especially true where the alien's qualifying
experience with the employer is in a trainee or assistant
position. Id.; see alsoAnderson-Mraz
Design, 90-INA-142 (May 30, 1991) (employer required
experience in the job offered, but did not include an alternative
experience requirement).
In Delaney's Restaurant, 88-INA-174 (Oct. 30,
1991), the only significant distinction between the
positions of cook helper/second cook and cook established by
the record was the additional job duty of cooking seafood
and sauces as opposed to merely preparing those items for
cooking. Given that the employer's job hierarchy strongly
suggested that the alien was trained for the cook position,
an opportunity denied to U.S. applicants, the mere
distinction of cooking versus preparing foods did not
establish sufficient dissimilarity to overcome the
proscriptions of § 656.21(b)(6).
If a job offer requires prior experience in the same job,
and the alien's only qualifying experience is with the employer,
the employer will not prevail by arguing that the alien's
qualifying experience was in a lesser position for purposes of
§ 656.21(b)(6) and greater position for purposes of
satisfying the minimum requirements for the job. Anderson-Mraz
Design, 90-INA-142 (May 30, 1991) (graphic design
internship).
If the CO raises the issue of similarity and the employer
fails to provide the requested rebuttal evidence, certification
will be denied. SeeDelitizer Corp. of Newton,
91-INA-53 (July 2, 1991); Landor Associates, 90-INA-351
(Dec. 5, 1991); Delaney's Restaurant, 88-INA-174 (Oct. 30,
1991); Tesseract Corp., 90-INA-285 (Oct. 24, 1991).
See discussion of Gencorp, 87-INA-659 (Jan. 13,
1988) (en banc) in Chapter 11, II (Evidence).
The second prong of § 656.21(b)(6) operates as a
savings clause: if the employer cannot demonstrate that the job
requirements are the actual minimum ones or that it has not hired
workers with less training and experience, then it can attempt to
demonstrate that is not feasible to hire workers with less
training or experience than that required by the job offer.
An employer must sufficiently document a change in
circumstances to demonstrate infeasibility. SeeRogue
andRobelo Restaurant and Bar, 88-INA-148 (Mar. 1,
1989) (en banc). The employer's burden of establishing why
it is not now feasible to offer the same favorable treatment to
U.S. applicants has been characterized as heavy. 58th Street
Restaurant Corp., 90-INA-58 (Feb. 21, 1991); Fingers,
Faces, and Toes, 90-INA-56 (Feb. 8, 1991).
An employer may attempt to prove the infeasibility of
training by showing a change in economic circumstances; however,
that is not the only means of demonstrating infeasibility.
Rogue and Robelo Restaurant and Bar, 88-INA-148 (Mar. 1,
1989) (en banc).
Only one employer has ever demonstrated the
present infeasibility to train. In Avicom
International, 90-INA-284 (July 31, 1991), the
employer showed that a change in its corporate
ownership and reduction in its workforce left the alien
as the sole remaining employee with the knowledge and
training required of an electronics engineer.
An increase in the volume of business or general growth
and
expansion, by itself, is insufficient to establish infeasibility.
Unless an employer proves otherwise, increased training
capability is presumed to accompany growth. SeeSuper
Seal Manufacturing Co., 88-INA-417 (Apr. 12, 1989) (en
banc); AEP Industries, 88-INA-415 (Apr. 4, 1989)
(en banc); Anderson-Mraz Design, 90-INA-142 (May
30, 1991); Primex Plastics Corp., 89-INA-283 (Apr. 8,
1991); Ramazzotti Landscaping, Inc., 90-INA-78 (Feb. 22,
1991); 58th Street Restaurant Corp., 90-INA-58 (Feb. 21,
1991); Able Labs, 90-INA-54 (Jan. 29, 1991); J.J.
Cassone Bakery, Inc., 89-INA-74 (Feb. 20, 1990); Laura's
French Baking Co., 89-INA-61 (Jan. 31, 1990); Laura's
French Baking Co., 89-INA-53 (Oct. 30, 1989); Pro-Torque,
Ltd., 88-INA-352 (June 27, 1989); L and I Color Labs,
89-INA-217 (June 13, 1990); G.C. Construction Corp.,
88-INA-20 (May 9, 1988).
Section 656.21(b)(6) requires an employer to document its
assertion that its business has declined to the point where it is
now financially unable to train a new worker. Jackson &
Tull Engineers, 87-INA-547 (Nov. 24, 1987).
A bare statement of infeasibility to train is inadequate
to
establish that an employer cannot now hire workers with less
experience and provide training. MMMATS, Inc., 87-INA-540
(Nov. 24, 1987) (en banc); Coastal Printworks,
Inc., 90-INA-289 (Oct. 29, 1991); Valor Roofing,
90-INA-182 (July 30, 1991); Altra Filter, Inc., 90-INA-15
(Dec. 7, 1990); BSN Industries, Inc., 88-INA-53 (May 6,
1988).
Documentation must show more than just inefficiency.
Admiral Gallery Restaurant, 88-INA-65 (May 31, 1989)
(en banc); Coastal Printworks, Inc., 90-INA-289
(Oct. 29, 1991); Carillon Mills, Inc., 90-INA-17 (Dec. 19,
1990); Global Committee of Parliamentarians on Population and
Development, 88-INA-209 (Mar. 12, 1990); Hoffman-LaRoche,
Inc., 88-INA-30 (July 21, 1988).
The present unavailability of the person who trained the
alien may be a factor to consider, but it does not guarantee a
finding of infeasibility. SeeCynjoy Dress Corp.,
90-INA-189 (July 1, 1991); Ken Cal Maintenance Co.,
90-INA-224 (Mar. 27, 1991); Fingers, Faces, and Toes,
90-INA-56 (Feb. 8, 1991); Sid and Irene Ritman, 88-INA-86
(Feb. 8, 1990); Metal Cutting Corp., 89-INA-90 (Jan. 8,
1990); California-Nevada Annual Conference of the United
Methodist Church, 88-INA-364 (June 28, 1989). SeealsoH. Stern Jewelers, 89-INA-89 (Jan. 19, 1990)
(employer acknowledged that branch office, in which the job
opportunity was available, was actively training workers for the
position).
The present unavailability of U.S. applicants with the same
qualifications as the alien does not demonstrate the
infeasibility of training. Rosedale & Rosehill
Cemetery, 90-INA-19 (Mar. 27, 1991).
The burden is not on the CO to offer evidence documenting
that the employer can offer the same training to U.S. workers. To
the contrary, the burden rests with the employer to document why
it is no longer feasible provide training that was provided to
the alien. California-Nevada Annual Conference of the United
Methodist Church, 88-INA-364 (June 28, 1989).
Statements by an employer's counsel, unsupported by
statements by persons with personal knowledge of the facts, are
not evidence. See Chapter 11, V, E (Evidence). Thus,
general statements by employer's counsel as to infeasibility of
training are not persuasive. Yasufumi Enterprise Inc.,
89-INA-357 (Mar. 28, 1991).
The questions of whether a job requirement represents the
employer's actual minimum requirement and whether it is an unduly
restrictive job requirement are similar. In most instances where
the CO questions whether the job requirement is appropriate for
the job the regulatory authority cited is § 656.21(b)(2),
which governs unduly restrictive job requirements. See
Chapter 32 (Unduly Restrictive Job Requirements). In a few
instances, however, the CO did not raise, or failed to preserve,
the § 656.21(b)(2) violation, and the question of the
appropriateness of the job requirement has been analyzed under
§ 656.21(b)(6). See, e.g., Loews Anatole
Hotel, 89-INA-230 (Apr. 26, 1991) (en banc);
Duval-Bibb Co., 88-INA-280 (Apr. 19, 1989). Using
§ 656.21(b)(6) to challenge the appropriateness of the job
requirement raises the problem of regulatory interpretation. Most
Board decisions have linked actual minimum requirements with
prior hiring practices of the employer (seesupra
Division I, C), although this not always the approach.
See, e.g., Snowbird Development Co.,
87-INA-546 (Dec. 20, 1988) (en banc).
In several instances, the CO has cited the "actual
minimum requirements" clause of § 656.21(b)(6) to deny
labor certification where the employer set job requirements that
are allegedly insufficiently stringent for the position, the
implication being that the employer tailored the requirement to
the alien's qualifications. See, e.g., Snowbird
Development Co., 87-INA-546 (Dec. 20, 1988) (en banc).
The Board, however, has indicated that it is not appropriate to
cite § 656.21(b)(6) for failure to state actual minimum
requirements where the job requirements are relevant to the job
offered.
In ERF Inc., d/b/a Bayside Motor Inn,
89-INA-105 (Feb. 14, 1990), the CO found that the
requirement of two years as a bookkeeper/accountant was not
stringent enough for a job as hotel manager. The panel held
that § 656.21(b)(6) is intended to protect against
employers setting job requirements that are too stringent
for the position; however the § does not require an
employer to add to job requirements that are allegedly too
easy to meet. As long as the requirements are relevant to
the job offered, and the job would be offered to any
applicant meeting the requirements set forth, the employer
has satisfied § 656.21(b)(6).
SeealsoThe Kroenke Group,
90-INA-318 (July 12, 1991) (CO found that requirements of
one year of experience in accounting, a Master's degree in
accounting, passage of a C.P.A. examination and at least two
hours of credit in computer courses were not stringent
enough for position of Senior Accountant).
Section 656.21(b)(6) is violated where the employer tests
U.S. applicants for job skills but fails to demonstrate that the
alien was tested when hired by the employer for the petitioned
position. Sohnen Enterprises, 88-INA-582 (Oct. 4,
1989).
An employer can avoid being found in violation of
§ 656.21(b)(6) where it presents evidence establishing why a
requirement is now necessary although it was previously not
necessary. For example:
In Duval-Bibb Co., 88-INA-280 (Apr. 19, 1989)
(en banc), the employer required applicants for the
position of Management Analyst to have one year of training
or experience in "Psychology of Mind human relations
principles." The CO (apparently) found that the
employer had not stated its actual minimum requirements
because it had not previously required management analysts
to possess this training and had provided this training to
employees after they were hired. The Board, however, found
that the employer had stated its actual minimum requirements
because it had documented that provision of this training
had become too expensive and that the decision had been made
to make acquisition of this training the responsibility of
the employee.
SeealsoLoews Anatole
Hotel, 89-INA-230 (Apr. 26, 1991) (en banc)
(employer submitted affidavits describing the
additional experience and knowledge which a credit
manager for one of its larger hotels must have in order
to perform the more complex (in number and nature)
duties required, in comparison to other smaller
hotels).