Citing Cheung v. District Director, INS, 641 F. 2d 666 (9th Cir. 1981) and
Wang v. INS, 602 F.2d 211 (9th Cir. 1979), the Board affirmed the CO's
denial of labor certification. The Employer had applied for certification for the position of chef
in an Italian restaurant and listed 2 years of experience as a requirement in its application.
However, in its advertising, Employer listed a higher experience requirement. In the NOF
the CO raised this issue. In rebuttal, Employer stated that the information had been sent to
the case worker and it "was the responsibility of...[her] to check for accuracy." In
upholding the CO's denial of labor certification, the Board reasoned that employers have the
burden of proof in certification applications. This being the case, attempts to
"blame" the case worker demonstrate that "Employer does not understand that
he bears the burden of proof." The Board last noted that certification was "properly
denied for failure to address this issue alone." Giaquinto Family
Restaurant, 96-INA-64 (May 15, 1997).
If the job offered invokes technical requirements, the employer carries the burden to
submit understandable evidence. EmersonElectric Co.,
90-INA-486 (Feb. 19, 1992).
Burden of proof in alien certification is on the employer. 20 CFR §656.2.
Universal Diesel Services, 94-INA-250 (Oct. 4, 1995).
