UNITED STATES DEPARTMENT OF LABOR
BOARD OF ALIEN LABOR CERTIFICATION APPEALS
Judges' Benchbook
Second Edition - May 1992

CHAPTER 4

ALIEN'S QUALIFICATIONS FOR THE JOB

I. Requirement that alien possess stated job requirements

II. Proof of alien's qualifications, generally

• A. Experience in the job duties

• B. Weight of undocumented assertions

• C. Scope of admission when NOF not answered directly

• D. CO's reasonable request for information

• A. Requirement of adequate documentation

• B. Eligibility for degree

• C. INS equivalency regulations

IV. Qualifications of physician or surgeon

V. Licensing requirements

VI. Requirement that alien obtain required license for job within proximate time of entry into United States

I. Requirement that alien possess stated job requirements

An employer must establish that the alien possesses the stated minimum requirements for the position. Charley Brown'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 Trade and 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 of the Valley, 90-INA-314 (Oct. 29, 1991); International Scientific Communications, Inc., 89-INA-115 (Nov. 17, 1989); Susan Morgan, 88-INA-550 (Oct. 26, 1989); Voi-Shan Manufacturing, 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, inter alia, 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).

II. Proof of alien's qualifications, generally

A. Experience in the job duties

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). See also Applied 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).

B. Weight of undocumented assertions

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. Wings Wildlife Production, Inc., 90-INA-69 (Apr. 23, 1991); University of Arizona, 88-INA-368 (July 17, 1989); 1st and 2nd Mortgage Company of New Jersey, Inc., 87-INA-572 (Aug. 4, 1988). See also Barry Briggs, 90-INA-143 (June 5, 1991), discussed in Division III, A of this Chapter.

C. Scope of admission when NOF not answered directly

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.

D. CO's reasonable request for information

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).

III. Equivalency of educational degrees

A. Requirement of adequate documentation

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. Barry Briggs, 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).

B. Eligibility for degree

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).

C. INS equivalency regulations

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).

IV. Qualifications of physician or surgeon

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).

V. Licensing requirements

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).

VI. Requirement that alien obtain required license for job within proximate time of entry into United States

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. on recon. (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.

See also, 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).