Labor certification applications to employ an alien as a
college or university teacher, or an alien represented to have
exceptional ability in the performing arts, are designated for
special handling. 20 C.F.R. § 656.21a(a). The special
handling procedures provide for a more limited test of the labor
market than the basic process at § 656.21, and require that
U.S. applicants be at least as qualified as the alien for the
position while under the basic process U.S. applicant need only
be minimally qualified. See 56 Fed. Reg. 54,920, 55,923
(1991) (Interim Final Rule for regulations implementing the
Immigration Act of 1990).
Where an alien is represented to have exceptional abilities
in the performing arts, the employer must establish that the
alien's work experience over the past twelve months did require,
and the intended work in the United States will require,
exceptional ability. See
Labor certification applications to employ aliens who have
been employed legally as nonimmigrant sheepherders in the United
States for at least thirty-three of the preceding thirty-six
months are designated under the regulations for special handling.
20 C.F.R. § 656.21a(b). Those applications are filed
directly with the consular officer or a district office of INS
and not with DOL. § 656.21a(b)(1).
Section 656.24(b)(2)(ii) provides that the CO shall consider
a U.S. worker able and qualified for the job opportunity if the
worker, by education, training, experience, or a combination
thereof, is able to perform in the normally accepted manner the
duties involved in the occupation as customarily performed by
other U.S. workers similarly employed, except that,
if the application involves a job opportunity as a
college or university teacher, or for an alien whom the CO
determines to be currently of exceptional ability the
performing arts, the U.S. worker must be at least as
qualified as the alien.
In the case of the teaching profession, the regulations
limit the special handling rules to college or university
teachers. See 20 C.F.R. § 656.21a(a) and (a)(1)(iii);
accordMatanuska Susitna Borough School, 87-INA-557
(Jan. 20, 1988), rev'd, Mastroyanis v. United States
Dep't of Labor, No. A88-089 Civil (D.C. Ala. May 5, 1989)
(position of elementary school teacher of gifted and talented
students could not receive special handling).
In Mastroyanis v. United States Dep't of Labor, No.
A88-089 Civil (D.C. Ala. May 5, 1989), however, it was held that
§ 656.24 is inconsistent with the plain language of the
Immigration and Nationality Act, 8 U.S.C.
§§ 1182(a)(14) and 1101(a)(32) to the extent that it
limits application of the "equally qualified" standard
to college and university teachers.
On October 23, 1991, the Employment and Training
Administration published its interim final rule on regulations
implementing changes made by the Immigration Act of 1990. 56 Fed.
Reg. 54,920 (1991). Those interim rules retain the distinction
between college and university teachers and elementary and
secondary school teachers. Id. at 54,9423.
College or university teachers seeking labor certification
under the special handling provisions must be shown to have been
selected for the job following a competitive recruitment and
selection process through which the alien was found to be more
qualified than any of the U.S. applicants.
§ 656.21a(a)(1)(iii).
Pursuant to § 656.21a(a)(1)(iii)(A)(2), the employer is
required to set forth and document the specific, lawful,
job-related reasons why the alien is more qualified than
each U.S. applicant. Stanford University, 91-INA-40
(Mar. 10, 1992); New Jersey Institute of Technology,
87-INA-650 (Feb. 8, 1988).
In contrast, under the basic certification process, an
alien's superior qualifications are not lawful grounds for
rejecting a minimally qualified U.S. worker. See Chapter
23, IV, B (Rejection of U.S. Workers).
Aliens who are not shown to be more qualified than the U.S.
applicant will be denied labor certification:
Where the alien did not meet the job requirement of a
Ph.D. degree for a job as a college professor, and most of
the other job applicants did possess the required degree,
the alien was not more qualified than the U.S. workers who
applied. Utah State University, 88-INA-115 (Apr. 5,
1989) (en banc).
Employer failed to establish that the alien met the
minimum job requirements for college professor and failed to
establish that the alien was more qualified than the U.S.
workers who applied for the job. Southern Connecticut
State University, 90-INA-384 (Dec. 9, 1991).
If an application for a college or university teacher or an
alien represented to be of exceptional ability in the performing
arts, or a sheepherder does not meet the requirements for an
occupation designated for special handling under § 656.21a,
the application may be filed under the basic certification
process at § 656.21. § 656.21a(c).
The employer has the option of seeking labor certification
for occupations designated for special handling under either
§ 656.21 or § 656.21a. Lewis University,
88-INA-75 (June 20, 1988).