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

CHAPTER 6

BONA FIDE JOB OPPORTUNITY

I. Source of requirement of bona fide job opportunity

II. Contexts in which lack of bona fide job opportunity provides grounds for denial of certification

III. Contexts in which lack of bona fide job opportunity is not properly raised

IV. A job opportunity clearly open to qualified U.S. workers

I. Source of requirement of bona fide job opportunity

On occasion the Board has analyzed cases based on a generic "bona fide job opportunity" test. The requirement of a bona fide job opportunity arises out of § 656.20(c)(8), which requires an employer to attest that the "job opportunity has been and is clearly open to any qualified U.S. worker." Although the words "bona fide job opportunity" do not appear in the regulations, this administrative interpretation was approved by the court in Pasadena Typewriter and Adding Machine Co., Inc. and Alireza Rahmaty v. United States Department of Labor, No. CV 83-5516-AAH(T) (C.D. Cal. Mar. 26, 1984) (unpublished Order Adopting Report and Recommendations of Magistrate). The Magistrate's Report and Recommendation states:

The regulations require a "job opportunity" to be "clearly open." Requiring the job opportunity to be bona fide adds no substance to the regulations but simply clarifies that the job must truly exist and not merely exist on paper. The administrative interpretation thus advances the purpose of § 656.20(c)(8). Likewise, requiring that the job opportunity be bona fide clarifies that a true opening must exist, and not merely the functional equivalent of self-employment. Thus, the administrative construction advances the purpose of § 656.50.

Id., Magistrate's Report and Recommendation, slip op. at 7 (Feb. 17, 1984).

In Amger Corp., 87-INA-545 (Oct. 15, 1987) (en banc), the Board followed Pasadena Typewriter, stating that the "employer has the burden of providing clear evidence that a valid employment relationship exists, and that a bona fide job opportunity is available to domestic workers, and that the Employer has, in good faith, sought to fill the position with a U.S. worker."

In Modular Container Systems, Inc., 89-INA-228 (July 16, 1991) (en banc), the Board reaffirmed the principle that § 656.20(c)(8) "infuses the recruitment process with the requirement of a bona fide job opportunity: not merely a test of the job market." Id., slip op. at 8-9 (footnote and citations omitted). The Board declined to reach the question of whether the regulatory requirements of a bona fide job opportunity and actual recruitment are supported by the legislative history associated with the labor certification provision of the Immigration and Nationality Act, § 212(a)(14), 8 U.S.C. § 1182(a)(14) (amended by § 212(a)(5)(A) of the Immigration Act of 1990 and codified at 8 U.S.C. § 1182(a)(5)(A)), because the parties did not raise the issue. The Board did note, however, that some commentators have contended that the requirements are not supported by the legislative history. Id., citing McCormick & Jeffers, "Labor Certification for Alien/Beneficiary Shareholders," Manual on Labor Certification: Practice & Procedure, 223-242 (AILA 1990); Edelweiss Manufacturing Co., Inc., 87-INA-562 (Nov. 10, 1988) (order denying motion for en banc reconsideration).

II. Contexts in which lack of bona fide job opportunity provides grounds for denial of certification

Certification has been denied on the ground that no bona fide job opportunity existed where

• the employer failed to rebut its earlier statement to a job service representative that no opening existed for the position, Harvey Studios, 88-INA-430 (Oct. 25, 1989)

• the employer failed to provide documentation requested by the CO, Britt's Antique Importers/Exporters, 90-INA-276 (Dec. 17, 1990); Tedmar's Oak Factory, 89-INA-62 (Feb. 26, 1990); Rainbow Imports, Inc., 88-INA-289 (Oct. 27, 1988). See also Chapter 11 (Evidence).

• the alien has control over the employer, Young Seal of America, Inc., 88-INA-121 (May 17, 1989) (en banc); Rindsberg Electrical USA, Ltd., 89-INA-257 (Mar. 12, 1991) (burden of proving that job is clearly open is higher where the employer's president is the alien's son). See also Chapter 3 (Alien Ownership and Control), where this issue is covered in detail.

• and failure by the employer's agent to state affirmatively to local job service whether job was still open, and the employer's own failure to respond to the job service agent. Rindsberg Electrical USA, Ltd., 89-INA-257 (Mar. 12, 1991).

III. Contexts in which lack of bona fide job opportunity is not properly raised

The Board has reversed the CO's finding of the lack of a bona fide job opportunity where the CO made an erroneous factual finding,

• Foria International, Inc., 88-INA-375 (July 27, 1989), holding that, based on the job duties and extensive rebuttal evidence, the CO erred in finding that no bona fide position existed for a market research analyst and that the position was actually that of assistant buyer.

• Immuno Biological Laboratories, 90-INA-22 (July 9, 1991), holding that the employer's failure to contact certain U.S. applicants did not establish the absence of a bona fide job opportunity where, contrary to the CO's finding, the applicants were not qualified for the position.

or made an erroneous assumption concerning the nature of job duties,

• Kater Kitchen, Inc., 88-INA-435 (July 27, 1989), holding that no statutory, regulatory or case law mandates that meals prepared by a caterer be prepared on the premises in order for the employer to establish a bona fide job opportunity.

• Mr. and Mrs. Timmy Wu, 87-INA-735 (June 28, 1988), holding that the employers had a bona fide job opening for a children's tutor whose duties included teaching Mandarin Chinese and overseeing the diet, health and activities of the employers' children. The panel held that the Dictionary of Occupational Titles does not require that any particular time be allocated to teaching as opposed to administering child care.

the relevance of business expansion,

• H.R. Enterprises, Inc., 89-INA-279 (June 25, 1990), holding that the employer had established the existence of a bona fide job opportunity for an Argentinian specialty chef where the employer showed that it was undergoing significant expansion and wished to serve Argentinian food.

or the relevance of the alien's eligibility for a visa.

• Azumano Travel Service, Inc., 90-INA-215 (Sep. 4, 1991), holding that the fact that an alien lives outside the U.S. and might have difficulty obtaining a visa to enter the U.S. does not indicate that the position is not bona fide.

IV. A job opportunity clearly open to qualified U.S. workers

The Board held that a job is "clearly open to any qualified U.S. workers" as required by § 656.20(c)(8) if the employer has established business necessity for any unduly restrictive job requirements. Specifically, the Board held that the employer was required by contract to fill the position of railway leverman with the most senior union member such that the alien was the only "qualified" individual for the position. The Board concluded that union membership and seniority were business necessities because these requirements bore a reasonable relationship to the occupation and were essential to perform the duties of the job. In particular, the Board noted that the railway was unionized and that hiring an employee who failed to meet the seniority requirements imposed by the railway's Collective Bargaining Agreement would expose the employer to possible grievance procedures, lawsuits, labor disruptions, or other impairments to providing safe and orderly public railway transportation. Canadian National Railway Co., 90-INA-66 (Sept. 11, 1992)(en banc), recon. denied (Nov. 20, 1992)(en banc).