If a labor certification regulation requires information to
be in a specific form, the employer must furnish that information
in that form.
Gencorp, 87-INA-659 (Jan. 13, 1988) (en
banc) (citing as an example of a regulation requiring a
specific form of documentation, § 656.21(a)(3)(iii),
which requires the alien's experience to be documented by
statements from past and present employers).
Where a labor certification regulation does not require
information to be in a specific form, and the CO has not made a
request for a reasonably obtainable and relevant document,
Seeinfra Division II.
written assertions that are reasonably specific and indicate
their sources or bases are to be considered documentation.
Gencorp, 87-INA-659 (Jan. 13, 1988) (en
banc).
For example, if a CO challenges the business necessity of a
requirement, but does not request any specific type of
documentation, an employer's statements may establish business
necessity.
The CO is not required to accept written statements provided
in lieu of independent documentation as credible or true, but
must consider them and give them the weight they rationally
deserve. Gencorp, 87-INA-659 (Jan. 13, 1988) (en
banc).
If the CO requests a document which has a direct bearing on
the resolution of an issue and is obtainable by reasonable
efforts, the employer must produce it. Gencorp, 87-INA-659
(Jan. 13, 1988) (en banc). For example, an employer must
provide documents reasonably requested by the CO relating to:
the alien's qualifications,
Chapter 1, II, B, 1, b, ii (Actual Minimum
Requirements) and Chapter 4, II, D (Alien's Qualifications
for the Job).
the employment relationship between the alien and the
employer,
Chapter 9, II, A, 2 and III, C (Definition of
Employment) and Chapter 8, III (Definition of Employer).
the rejection of U.S. applicants, or
Chapter 23 (Rejection of U.S. Workers).
or the sufficiency of funds to pay the alien's salary.
Chapter 30, II, A (Sufficiency of Funds to Pay
Salary).
An employer's failure to produce a relevant and reasonably
obtainable document requested by the CO is ground for the denial
of certification, STLO Corporation, 90-INA-7 (Sept. 9,
1991); Oconee Center Mental Retardation Services,
88-INA-40 (July 5, 1988), especially where the employer does not
justify its failure. Vernon Taylor, 89-INA-258 (Mar. 12,
1991). For example:
In Bakst International, 89-INA-265 (Mar. 14,
1991), and Personnel Sciences, Inc., 90-INA-43 (Dec.
12, 1990), the employers required applicants to have
knowledge of specific computer hardware and software, the
COs requested copies of consultancy contracts showing that
the employers' clients needed such expertise, and the
employers failed to provide the requested information.
In Rainbow Imports, Inc., 88-INA-289 (Oct. 27,
1988), the CO requested a list of the employer's officer's
and their relationships to the alien to demonstrate the
existence of a bona fide job opportunity. The employer re-
fused to supply such information and instead provided only a
letter from its corporate counsel asserting that neither the
alien nor any relative of the alien were current
stockholders of the corporation.
The denial of certification is not appropriate if the CO
requests documentation which is difficult to obtain and the
employer submits other evidence sufficient to rebut the CO's
challenge. Engineering Measurement Co., 90-INA-171 (Mar.
29, 1991); Raul Garcia, M.D., 89-INA-211 (Feb. 4, 1991)
(employer established business necessity of foreign language
requirement).
If the CO requests certain documentation, and the employer
ostensibly complies with the request, the CO must state his or
her reasons if the documentation is found to be insufficient.
Fried Rice King Chinese Restaurant, 87-INA-518 (Feb. 7,
1989).
Although a written assertion constitutes documentation that
must be considered under Gencorp, 87-INA-659 (Jan. 13,
1988) (en banc), a bare assertion without supporting
reasoning or evidence is generally insufficient to carry an
employer's burden of proof. For example:
The argument that a bona fide job opening exists for
an elementary school science teacher, simply because there
is a teacher shortage and the employer is an elementary
school, is unpersuasive. Our Lady of Guadalupe
School, 88-INA-313 (June 2, 1989).
An employer's bare assertion (i.e., an asser-
tion unsupported by reasons or evidence) that a U.S.
applicant is not interested in a job is insufficient to
prove rejection for a lawful, job-related reason. A.V.
Restaurant, 88-INA-330 (Nov. 22, 1988).
ButseeMetrodata Services,
88-INA-32 (Mar. 13, 1989), holding that an employer's
statement that a U.S. applicant failed to schedule an
interview and was rejected as unavailable constitutes
sufficient documentation of a lawful, job-related reason for
rejection. According to the panel, the CO should have
attempted to contact the U.S. worker to obtain any contrary
information regarding the rejection.
Unsupported conclusions (i.e., statements
without explanation or factual support) are insufficient to
demonstrate that certain job requirements are normal for a
position or supported by a business necessity.
Inter-World Immigration Service, 88-INA-490 (Sept. 1,
1989), citing Tri-P's Corp., 88-INA-686 (Feb. 17,
1989).
An employer's undocumented assertion of statements by
a third party is insufficient to challenge a prevailing wage
determination. Carl Joecks, Inc., 90-INA-406 (Jan.
16, 1992).
Where a fact lends itself to proof by independent
documentation, the weight and sufficiency of a party's case is
bolstered by such documentation. Where, however, a fact is not
capable of proof by independent documentation, the thing is
provable only by the testimony or statements of the persons
involved. Thus, the weight of statements not capable of support
by independent documentation depends largely on the credibility
of the person making the statement. The credibility of speaker,
in turn, depends on:
the surrounding facts and circumstances,
the source of the knowledge of the speaker,
the interest of the speaker,
the good or bad intentions of the speaker,
the manner of testimony by the speaker, and
other indices of honesty or credibility.
Mr. and Mrs. Jeffrey Hines, 88-INA-510 (Apr. 9,
1990).
Contemporaneous documentation may be entitled to more weight
than statements made long after the events in question.
See, e.g., La Salsa, Inc., 87-INA-580 (Aug.
29, 1988) (en banc) (CO improperly credited U.S. worker's
four-word questionnaire response, prepared five months after the
events in question, over the employer's contemporaneous
documentary evidence that the U.S. worker could not be
contacted).
Where the CO chose in the NOF to make a broad challenge to
the requirement of a Master's Degree as unduly restrictive, the
employer's rebuttal would so too, on balance, be measured
broadly. Agora Realty, Inc., 89-INA-3 (Oct. 16, 1989).
Where the CO leads the employer to believe that she is
making a challenge on narrow grounds, the Board will not
undertake a review of all possible grounds for the challenge.
Crown USA, Inc., 90-INA-113 (Sept. 23, 1991),
holding that the CO does not preserve the entire question of
ownership and control merely by noting the alien's position
in the sponsoring company and inquiring into his or her
investment status.
Seealso Chapter 3, I, E (Alien
Ownership or Control) dealing in more detail with the
question of the scope of review of ownership and control
issues raised by the CO.
Similarly, the Board will not consider issues that might
have been raised by the CO but were not.
See Chapter 26, D (Scope of Board Authority,
Jurisdiction and Review).
Company policy regarding hiring practices does not take
precedence over Department of Labor regulations regarding alien
labor certification. If an employer wishes to obtain labor
certification for an alien, it must modify its policies to
conform with the regulations. Security Life of Denver,
88-INA-246 (Aug. 22, 1989).
An employer has no right of confidentiality as to its
corporate officers. Thus, if a CO requests a list of corporate
officers, the employer must produce it. Rainbow Imports,
Inc., 88-INA-289 (Oct. 27, 1988).
In Cathay Carpet Mills, Inc. v. Secretary of Labor,
No. 87-3881-RMT (GHK) (C.D. Ca. 1988), rev'g, Cathay
Carpet Mills, Inc., 87-INA-161 (March 20, 1987) (pre-BALCA),
a district court determined whether questionnaire responses were
admissible in a labor certification case by applying the criteria
set forth in Calhoun v. Bailar, 626 F.2d 145 (9th Cir.
1980), cert. denied, 452 U.S. 906 (1981)
(seesupra Division III, A).
In Cathay Carpet Mills, a CO used questionnaires
filled out by U.S. applicants to find contradictions in the
employer's recruitment report. The district court held that the
questionnaires were not admissible hearsay because:
the questionnaires exhibited potential bias
because one applicant questioned the employer's good
faith and speculated as to an ulterior motive and both
applicants indicated that they would have taken the job
if it had been offered;
the questionnaires lacked indicia of reliability
because they were analogous to reports prepared in
anticipation of litigation;
the questionnaires were unsworn and one was
unsigned;
the questionnaires did not indicate that the
declarants were unavailable to testify; and
the questionnaires were not corroborated, as to
the material aspects of the hearsay statements, by any
evidence in the record.
The district court emphasized that when hearsay is central
to an agency's case, questions of basic fairness and reliability
are more serious. Cathay Carpet Mills, Inc. v. Secretary of
Labor, No. 87-3881-RMT (GHK) (C.D. Ca. 1988), rev'g,
Cathay Carpet Mills, Inc., 87-INA-161 (Mar. 20, 1987)
(pre-BALCA).
On remand from the district court, the Board applied the
Calhoun factors and determined that the unsworn
questionnaire responses had little probative value and that it
would be fundamentally unfair under the circumstances of the case
to use them against the employer. The Board found that the
employer's detailed and partly corroborated account of contacts
with the U.S. applicants was persuasive. Cathay Carpet Mills,
Inc., 87-INA-161 (Dec. 7, 1988) (en banc).
A questionnaire response may be authenticated by providing
the address to which the questionnaire is mailed, the signature
of the addressee, and, if appropriate, references to the
applicant's interview. Cathay Carpet Mills, Inc.,
87-INA-161 (Dec. 7, 1988) (en banc).
Faced with a statement that the employer rejected the
applicant as unavailable and with a questionnaire indicating that
the applicant was not contacted by the employer, the CO properly
placed the burden on the employer to substantiate its assertion
that the applicant was initially unavailable. Annette
Gibson, 88-INA-396 (June 20, 1989) (admissibility of the
response was not addressed).
In La Salsa, Inc., 87-INA-580 (Aug. 29, 1988) (en
banc), the CO improperly credited a U.S. worker's four-word
questionnaire response, prepared five months after the events in
question, over employer's contemporaneous documentary evidence
that the U.S. worker could not be contacted.
In Immuno Biological Laboratories, 90-INA-22 (July 9,
1991), the CO erred in concluding that U.S. applicants were
qualified for the job of Research Microbiologist based solely
upon a questionnaire wherein the applicants claimed to have
experience in a related occupation.
Assertions by an employer's attorney that are not supported
by underlying statements by a person with knowledge of the facts,
do not constitute evidence,
Moda Linea, Inc., 90-INA-424 (Dec. 11, 1991);
Mr. and Mrs. Elias Ruiz, 90-INA-425 (Dec. 9, 1991);
D & J Finishing, Inc., 90-INA-446 (Nov. 4, 1991)
(decision and order on reconsideration); Personnel
Services, Inc., 90-INA-43 (Dec. 12, 1990); DeSoto,
Inc., 89-INA-165 (June 8, 1990); Dr. Sayedur
Rahman, 88-INA-112 (Mar. 20, 1990).
SeealsoYaron Development Co.,
Inc., 89-INA-178 (Apr. 19, 1991) (en banc) (a
factual theory presented by counsel in a brief cannot serve
as evidence of material facts).
SeealsoHupp Electric Motors,
Inc., 90-INA-478 (Jan. 30, 1992) (assertions by legal
assistant to employer's counsel).
except that an attorney may be competent to testify about matters
of which he has first-hand knowledge.
Modular Container Systems, Inc., 89-INA-228
(July 16, 1991) (en banc).
Should an attorney's testimony become necessary in an
administrative proceeding, the ethical dilemma of acting both as
witness and advocate arises, and the attorney may be required to
withdraw as counsel. Generally, where evidence is obtainable from
other sources, absent extraordinary circumstances or compelling
reasons, an attorney representing a litigant should not act as a
witness.
Modular Container Systems, supra.
Statements of counsel or a lay representative must be
considered by the CO to the extent they constitute argument.
Fernando Jewelry Co., 91-INA-6 (Apr. 30, 1991) (citing
§ 656.25(e)(1)).
Where an employer's business involves a technically complex
field, the labor certification process could be open to abuse by
an employer who obscures actual job requirements in jargon and
technical language. This heightens the possibility that the job
is tailored to the alien's qualifications. Consequently, the
employer's burden of proof may be more difficult to meet since
the employer must present its case in a manner that can be
understood by the reviewing official. In Bakst
International, 89-INA-265 (Mar. 14, 1991), a computer
consultancy services firm sought to employ a Systems Analyst with
knowledge of a variety of computer hardware and software systems.
The panel remanded the case because the employer failed to
explain, in a manner understandable to non-experts, why the
experience and knowledge required was customary in the computer
industry.