An employer must establish that the alien possesses the
stated minimum requirements for the position. CharleyBrown's, 90-INA-345 (Sept. 17, 1991); Pennsylvania Home
Health Services, 87-INA-696 (Apr. 7, 1988). Stated another
way, an employer may not require more experience of U.S. workers
than the alien possesses. Western Overseas Tradeand
Development Corp., 87-INA-640 (Jan. 27, 1988). Where the
alien does not meet the employer's stated job requirements,
certification is properly denied under § 656.21(b)(6).
Marston & Marston, Inc., 90-INA-373 (Jan. 7, 1992);
Special Foods, 90-INA-379 (Jan. 6, 1992); Chabad ofthe Valley, 90-INA-314 (Oct. 29, 1991);
InternationalScientific Communications, Inc.,
89-INA-115 (Nov. 17, 1989); Susan Morgan, 88-INA-550 (Oct.
26, 1989); Voi-ShanManufacturing, 88-INA-470 (July
17, 1989); Keithley Instruments, Inc., 87-INA-717 (Dec.
19, 1988); Baytronics Corp., 87-INA-565 (Sept. 14,
1988).
Similarly, a job opportunity's requirements may be found not
to be the actual minimum requirements where the alien did not
possess the necessary experience prior to being hired by the
employer. Super Seal Manufacturing Co., 88-INA-417 (Apr.
12, 1989) (en banc); Bear Sterns & Co.,
Inc., 88-INA-427 (July 29, 1989). For detailed treatment
of this issue see Chapter 1 (Actual Minimum Requirements).
An employer must state and advertise accurately and
completely the actual minimum requirements for the position so
that, interalia, the CO may ascertain whether the
alien was qualified at the time he or she was hired by the
employer. O'Malley Glass & Millwork Co., 88-INA-49
(Mar. 13, 1989). For detailed treatment of this issue, see
Chapter 22, III, C (Recruitment Efforts).
The alien's experience in the job duties may be used as
proof of his or her qualifications for the job. For example, one
employer was able to demonstrate that the alien met the minimum
job requirement of five years of experience in the job offered by
showing that the alien had five years' experience in the listed
duties. Advanced Business Communications, Inc., 88-INA-36
(June 30, 1989). SeealsoApplied Magnetics
Corp., 90-INA-105 (Sept. 9, 1991); William Lawrence Camps,
Inc., 90-INA-248 (June 24, 1991) (alien qualified through a
combination of formal training and experience).
However, where the employer required one year of experience
in the job offered (Assistant Manager of a restaurant), but the
alien's only managerial experience was with an advertising agency
performing much different job duties, the Board held that the
employer's stated job requirements were not its actual minimum
requirements. Showboat Restaurant, 89-INA-27 (Jan. 31,
1990).
An alien's assertion, without documentation, does not
demonstrate that he or she satisfies the employer's actual
minimum requirements. MITCO, 90-INA-295 (Sept. 11, 1991);
Siam Hotel, Inc., 87-INA-537 (Nov. 24, 1987). Likewise, an
employer's unsupported statement that the alien meets its minimum
requirements does not constitute adequate documentation that the
alien meets those requirements. WingsWildlife
Production, Inc., 90-INA-69 (Apr. 23, 1991); University of
Arizona, 88-INA-368 (July 17, 1989); 1st and2nd
Mortgage Company of New Jersey, Inc., 87-INA-572 (Aug. 4,
1988). SeealsoBarry Briggs, 90-INA-143
(June 5, 1991), discussed in Division III, A of this Chapter.
The CO improperly denied certification on the ground that a
requirement was not the actual minimum requirement and was thus
unduly restrictive where the alien's list of qualifications in
the Form 750B referenced an affidavit from a former employer
stating that the alien did possess the requirement. Bobil
Motor Products, Inc., 88-INA-268 (Nov. 30, 1989) In
Bobil, the CO had questioned the alien's qualification for
the job. Instead of referencing the documentation in rebuttal,
the employer reduced the experience requirement. The panel held
that the employer's response did not constitute an admission
under § 656.25(e)(3) because the evidence of experience was
in the record and easily discernable.
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 750B
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).
An employer's mere assertion that the alien's degree was
equivalent to that required by the job was insufficient to
establish that the alien met the requirement. BarryBriggs, 90-INA-143 (June 5, 1991).
The CO properly denied labor certification in National
Pathology Laboratories, Inc., 90-INA-132 (Apr. 30, 1991),
where the employer failed to submit any documentation to
establish that the alien's Bachelor of Science degree in
Chemistry, with an Associate degree in Medical Laboratory
Technology, met the requirement of a Bachelor of Science degree
in Medical Technology.
Where the employer's own witness states that the alien's
engineering degree is not equivalent to the employer's
requirement of a Master of Sciences in Electronics in the job
offered, labor certification is properly denied. Benchmark
Industries, Inc., 90-INA-341 (Jan. 15, 1991) (per curiam).
An alien who met all of the requirements for an M.S. degree
which the employer required of U.S. workers possessed all the
training and experience required of U.S. workers even though the
degree had not been officially conferred. Productivity
Improvements, Inc., 87-INA-671 (Sept. 27, 1988).
Where applicants were required to hold a Bachelor of Science
degree or its equivalent, the panel noted that INS equivalency
regulations, at 8 C.F.R. section
214.2(h)(4)(iii)(c), were persuasive but not binding. Therefore,
the fact that the alien was found qualified for an H-1 visa,
which requires a bachelor's degree or equivalent, supported a
finding that the alien was qualified for the job offered in the
present case. Indeed, the panel noted that the alien had obtained
a degree from a foreign university with approximately two years
of coursework and had various work experience, training courses,
and published articles. Therefore, it was determined that the
alien was qualified for the position offered. Syscorp
International, 89-INA-212 (Apr. 1, 1991).
However, another panel rejected an employer's arguments that
an immigration service grant of H-1 status, indicative of a
"professional worker," necessarily established that the
alien's degree was that required for the job offered. The panel
held that the INS determination was not binding as it was based
upon a different statute, regulations, and factual
considerations. The case was remanded to the CO to consider fully
the documentary evidence submitted by the employer (an immigrant
inspector's handbook) and to develop the record further, as the
employer's proffered evidence was ambiguous. Barry Briggs,
90-INA-143 (June 5, 1991).
The regulations at § 656.20(d) provide that an
application for labor certification of a physician or surgeon,
except for physicians or surgeons of international renown, must
include certain documentation of medical qualifications.
The CO properly denies labor certification where the
employer fails to provide documentation in accordance with
§ 656.20(d). Newark Beth Israel Medical Center,
88-INA-87 (Dec. 23, 1988) (en banc).
Section 656.20(c)(7) requires that an employer show that its
"job opportunity's terms, conditions and occupations
environment are not contrary to Federal, State, or local
law." 20 C.F.R. § 656.20(c)(7). Consequently, labor
certification is properly denied where the employer fails to
prove that the alien has a license or that the job offered is
exempt from a licensing requirement:
Peconal, Inc., 90-INA-108 (June 6, 1991) (labor
certification was denied where the employer failed to prove
that it was exempt from licensing requirement and that the
alien would be legally eligible to perform the job duties as
an unlicensed civil engineer).
Malihe Dardashti, M.D., 90-INA-110 (May 10,
1991) (case remanded and employer required to provide an
opinion from a state board stating that the job of Medical
Director did not require a license).
B. Raeen Construction, 90-INA-352 (Mar. 27,
1991) (labor certification was denied where the job required
that the applicant, or his supervisor, be a licensed
Architect or Civil Engineer and the employer failed to
document that the alien was licensed or that his supervisors
were licensed).
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.onrecon. (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 the 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, the 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 the 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 the 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 the alien's entrance into the United
States.
Associate Chief Judge Guill concurred with the majority and
emphasized that, where an applicant fails to meet an employer's
stated, minimum job requirements, regardless of whether the
applicant is the 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.
Seealso, 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 the 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, M.D., 91-INA-338 (Feb. 24,
1993).