3. Position not requiring production
of art works
Where the job duties did not require the employee to produce
art works, an applicant's alleged lack of artistic ability was
found in one case not to be a lawful ground for rejection of an
otherwise qualified U.S. worker. In that case the employer
unlawfully rejected U.S. workers for subjective reasons based on
the employer's opinion that four applicants' art was amateurish;
such reasons were unlawful as the only qualification set forth on
the application was experience as an artist, and the job offered
was "Artist Consultant" whose duties were to analyze
artists' work to determine which would be represented by the
business. Collectors International, Ltd., 89-INA-133 (Dec.
14, 1989).
D. Availability of applicant
1. Rejection proper if lack of
availability is documented
An employer may reject U.S. applicants if it documents that
they are unavailable. Lebanese Arak Corp., 87-INA-683
(Apr. 24, 1989). An employer unlawfully rejects a U.S. applicant,
however, on the ground that the applicant is presently employed,
and thus unavailable, where there is no evidence that the
applicant was not interested in the position. Lakewood Manor
Apartments, 88-INA-572 (Oct. 18, 1989). Moreover, an employer
may not assume a U.S. worker is not interested in leaving his
present job based on a phone conversation with another family
member. Diceon Electronics, Inc., 88-INA-253 (Apr. 18,
1989).
With regard to whether an applicant is available, an
employer must document its reasonable efforts to contact
qualified U.S. workers. Churchill Cabinet Co., 87-INA-539
(Feb. 17, 1988); William W. Wright Stables, 87-INA-502
(Jan. 6, 1988). See also Chapter 13 (Good Faith
Efforts to Recruit).
2. Failure to respond
An applicant who did not respond to interview letters was
found in H.C. LaMarche Enterprises, Inc., 87-INA-607 (Oct.
27, 1988), not to be an available worker. Similarly, an employer
may lawfully reject a U.S. worker as unavailable where the worker
was told to schedule a convenient date for an interview and the
worker fails to respond. Metrodata Services, 88-INA-32
(Mar. 13, 1989). Likewise, an employer may lawfully reject U.S.
applicants who fail to respond to certified mail, return receipt
requested. Light Fire Iron Works, 90-INA-2 (Nov. 20,
1990), citing Bel Air Country Club, 88-INA-223 (Dec. 23,
1988).
On the other hand, an employer's predetermination that U.S.
workers are not qualified, coupled with the fact that the
employer's initial recruitment report fails to indicate a lack of
contact by the applicants, militates against the employer's
position that it contacted the applicants but failed to receive a
response. Ronald S. Rusiecki, 90-INA-207 (May 31, 1991).
Moreover, an employer may not reject U.S. applicants as
unavailable after waiting two months to contact the applicants in
response to the referrals. Ronald S. Rusieki, 90-INA-207
(May 31, 1991); Lancaster Landscapes, 87-INA-632 (Jan. 12,
1988).
3. Applicant who intends also to work
another job
In Production Tool Corp. of Wisconsin, 88-INA-210
(Nov. 9, 1989), the employer lawfully rejected a U.S. worker who
intended to keep his other, higher paying full-time job while
also working for the employer. The employer's concerns regarding
the safety and productivity of an employee working sixteen hours
a day around heavy machinery were reasonable, and were not
refuted by the CO.
4. Conflicting hours of
employment
Where the daytime work hours of a job are clearly stated in
the ETA 750, the employer's uncorroborated assertion of an
applicant's unavailability due to a conflict with those hours is
inadequate to support a rejection of the applicant as the
employer failed to provide any explanation for the conflict.
Caldwell's Restaurant, 89-INA-245 (Mar. 6, 1991).
5. Medical incapacity
A U.S. worker who was unavailable at the time of recruitment
due to impending surgery could not be found available for the job
six months later, when the NOF was issued, because he should have
recuperated. Adry-Mart, Inc., 88-INA-243 (Feb. 1, 1989)
(en banc).
E. Changed requirements or job
description
An employer may not belatedly seek to add even more
restrictive requirements and use them as a basis for rejecting a
U.S. worker. Metal Cutting Corp., 89-INA-90 (Jan. 8,
1990).
The employer unlawfully rejected a U.S. worker who met all
of the stated requirements for the position of
Specialty-Supervisory Chef where the employer stated that
the applicant's "experience and goals were more in line with
a management position than a 'hands on' back of the house labor
intensive individual." It was found that the employer was
seeking a working cook, not a supervisory cook as stated in the
application for labor certification. Collettis Restaurant,
Inc., 89-INA-138 (Jan. 3, 1990). Compare Mancillas
International Ltd., 88-INA-321 (Feb. 7, 1990), holding that
where the application called for experience in manufacturing
men's garments, which the U.S. applicant had, the employer's
insistence that the experience be in manufacturing men's suits
was misplaced.
See also infra Division IV, T in regard to
the addition of requirements not stated in the application.
F. Communication skills
1. Poor communication skills,
generally
Where an employer fails to explain what it means by poor
communication skills, or what relation poor communication skills
bear on the performance of the job duties, the employer rejects
U.S. workers for other than lawful job-related reasons. Hughes
Aircraft Co., 88-INA-325 (Mar. 21, 1989).
2. Applicant's inability to speak
English
The rejection of a U.S. applicant because he or she cannot
speak English is lawful. Juanito N. Roque, 88-INA-4 (Apr.
5, 1988). The burden is on the employer, however, to document
that the applicant is not able to speak English.
Hence, in Impell Corp., 88-INA-298 (May 31, 1989),
the CO properly placed the burden on the employer to demonstrate
that the applicant was not qualified for the position where the
CO believed that the applicant could comcommunicate in English,
but the employer stated that the applicant could not communicate
in English. Weighing the employer's statements in rebuttal,
together with the applicant's education, employment history, time
spent in the United States, and a conversation with the CO, the
CO determined that the employer had not demonstrated that the
applicant was unable to perform the stated job duties.
Where the CO found that employer had not documented that the
U.S. applicant was deficient in English communication skills, but
the Board found that employer had documented in accordance with
Gencorp, 87-INA-659 (Jan. 13, 1988) (en banc), a
remand was necessary for the further factfinding. Lighting
Bazaar, Inc., 88-INA-269 (Oct. 2, 1989).
3. Applicant's inability to understand
the employer's accented speech
An employer may not reject an applicant because the
applicant does not understand the employer's heavily-accented
speech. Carriage House Realtors, 87-INA-739 (Apr. 5, 1989)
(en banc).
G. Conflict of interest
An unsupported charge of "conflict of interest" is
not a lawful job-related reason for rejecting a qualified U.S.
applicant. Royal Peddler, 87-INA-679 (Feb. 5, 1988).
Likewise, an employer's mere assertion of a conflict of interest
arising from a U.S. applicant's employment for a competitor with
whom he had a familial relationship does not constitute a lawful
basis for rejection in light of the applicant's subsequent
experience gained through an unrelated employer. Papalera del
Plata, Inc., 90-INA-53 (Dec. 20, 1990), aff'd (Jan.
31, 1992) (per curiam).
H. Diversion of U.S. worker/alien
In some cases, employers hire a U.S. applicant and still
desire to hire the alien. In Engineering Technology, Inc.,
88-INA-508 (Feb. 8, 1990) (appeal filed in D.C. S.C. Feb. 8,
1990), the employer, faced with a qualified U.S. applicant,
offered to him a "senior" position in its organization,
thereby leaving the job offered open for the alien. The panel
found this maneuver to be an unlawful rejection, holding that the
diversion of available, qualified U.S. workers into other
positions does not render them any less available or qualified
for the job offered.
Likewise, in Western Bagel Baking Corp., 90-INA-72
(May 22, 1991), an U.S. applicant's failure to respond to the
employer's offer of an alternate job in retail sales did not cure
the unlawful rejection for the advertised job and labor
certification was properly denied.
The Board has also held that an employer may not hire a U.S.
applicant for the job offered and then hire the alien for an
identical position, at least where multiple positions are not
been offered from the outset. In Precision Airparts Support
Services, Inc., 88-INA-508 (Feb. 8, 1990), the employer
sought to certify the alien for an aircraft mechanic position.
However, because the record did not show that multiple openings
existed at the time of application, the employer had failed to
prove that no U.S. workers were available for the original
position.
See also American Middle East,
90-INA-346 (Sept. 17, 1991) (documentation from the outset
indicated that there was only one position; employer hired five
U.S. applicants and responded to the CO's finding of sufficient
U.S. workers that it had a large contract and that it could not
predict from day to day how many new positions would be added);
Publix Supermarket, 88-INA-429 (Sept. 28, 1989) (sole U.S.
applicant was placed in a regular baker's job because the alien
was allegedly more qualified for the job for which labor
certification was sought: pastry baker).
I. Experience
1. Applicant with fewer years of
experience than required
An employer may reject a U.S. applicant with fewer years of
experience than are required for the job offered. Lee Baron
Fashions, Inc., 89-INA-263 (April 22, 1991).
2. Applicant with only general or
related experience
A U.S. applicant who only has general or related experience
in the field of the position offered has been found not be
qualified in several cases where an employer has stated an
unchallenged requirement of more specific experience. For
example, under the facts of the cases, it has been found that
- restaurants may require experience in particular cuisine,
- Consistent with Concurrent Computer Corp.,
88-INA-76 (Aug. 19, 1988) (en banc), an applicant
with general experience as a head chef is not qualified for
a position requiring specific experience as a head chef for
Italian cuisine. Gennaro's Ristorante, 87-INA-742
(Nov. 23, 1988); see also El Carbon
Restaurant, 88-INA-329 (June 6, 1989) (holding that
applicants without experience in restaurant cooking of
Peruvian food are not qualified for position of Peruvian
Cuisine Specialty Chef).
- a business may require experience in specific software
applications,
- An applicant with general experience as a computer
programmer for commercial applications is not qualified for
a position requiring more specific software engineering
experience. Harris Corp., 88-INA-293 (Jan. 5,
1989).
- a health care facility may require experience in a
specialized field,
- An applicant with general experience in the health
field is not qualified for the position of Coordination of
Rehabilitation Services. Psychiatric Resource Center of
Orlando 88-INA-359 (Mar. 13, 1989) (en banc).
- an importer may require experience relating to its product,
- Experience as an import buyer of knit sweaters,
foodstuffs, promotional electronics, and various "soft
goods" does not satisfy the valid job requirement of
experience as an import buyer of textiles. ENY Textiles,
Inc., 87-INA-641 (Jan. 22, 1988).
- or to exporting as opposed to mere parts and service
management,
- A U.S. worker was lawfully rejected for the position
of Export Manger, where, despite the worker's having several
of the necessary credentials for the position, he was shown
not to be able to perform all of the job duties for the
position as listed in paragraph 13 of the ETA 750A form; the
U.S. worker's experience had been as a parts and service
manager, which is not equivalent to experience as an export
manager. Southeast Diesel Corp., 89-INA-81 (Dec. 5,
1989).
- and a business may distinguish experience gained as a
technician from experience gained as an engineer.
- Where the employer had shown that the U.S. applicant's
experience was as a technician and not as a field service
engineer, since the applicant did not meet the employer's
stated and unchallenged job requirements, employer lawfully
rejected the applicant. Datagate, Inc., 87-INA-582
(Feb. 17, 1989).
The results in these cases, however, are closely tied to the
particular facts and circumstances.
In contrast to the cases above, in the following cases U.S.
applicants with only general or related experience were found to
have been unlawfully rejected:
- In Eastside Union School District, 90-INA-254
(June 21, 1991), an employer, which required classroom
teaching experience for the job offered, unlawfully rejected
U.S. workers because they had a background in special
education. The panel noted that the U.S. applicants
possessed teaching experience in both regular and special
education classrooms and that the alien also had a
background in special education.
- Mancillas International Ltd., 88-INA-321 (Feb.
7, 1990), holding that where the application called for
experience in manufacturing men's garments, which the U.S.
applicant had, the employer's insistence that the experience
be in manufacturing men's suits was misplaced.
- See also Marvelaire Mechanical
Corp., 89-INA-170 (Feb. 7, 1990) (employer rejected
applicants for lacking the requirement of experience in HVAC
system controls, but later agreed to remove that
requirement; newly devised reasons for rejection
unpersuasive and applicant satisfied DOL standards for
proficiency in the job offered; rejection was unlawful).
- See also supra Division III in regard to
the CO's authority to find that an applicant is qualified
based on his or her education, or experience despite lacking
the exact qualifications required by the employer.
3. Applicant possessing only
alternative experience
The employer may not reject U.S. applicants as not meeting a
four-year experience requirement in the job offered as a
Purchasing Agent where they possess four years of alternative
experience in business management. Ernst Home & Nursery
Center, 89-INA-156 (Apr. 18, 1990).
On the other hand, where the employer required three years
of experience "in the job offered (president of a textiles
chemicals manufacturer) or in the related occupation of
Manager," it was logical to conclude that, where the CO did
not challenge the requirement of experience in the specific
industry, the alternative requirement of three years as a manager
was intended to be in the same field. Hunt Chemicals,
Inc., 90-INA-303 (July 22, 1991).
J. Job duties, generally
1. Ashbrook-Simon-Hartley; DOL
must consider the stated job duties
In Ashbrook-Simon-Hartley v. McLaughlin, 863 F.2d 410
(5th Cir. 1989), the court held that DOL cannot properly narrow
its inquiry to the single question whether the U.S. worker
applicant has a certain number of years of education, training,
or experience. The statutory scheme and the administrative
responsibility placed on DOL require it to consider all relevant
information on the application, including the job duties listed
by the employer.
In Ashbrook, the employer sought to fill the position
of design engineer supervisor. Two years of experience in the job
offered or four years of experience as a mechanical design
engineer were required by the employer. A U.S. worker was
rejected because, although he had four years of experience as a
mechanical design engineer, the employer concluded that he was
unable to perform the job duties. The administrative law judge
held that since the U.S. worker met the stated minimum
requirements, the employer did not reject him for lawful
job-related reasons. The Circuit Court held that the ability to
perform the job duties, wastewater engineering, must be taken
into account by DOL.
The Board, when earlier faced with the identical question,
had arrived at the opposite conclusion. In Bell Communications
Research, Inc., 88-INA-26 (Dec. 22, 1988) (en banc),
it was held that an employer must state all requirements for the
position on the application. In addition, if an applicant met the
requirements as stated by the employer, he or she must be deemed
qualified for the job.
The Board has acquiesced in Ashbrook in the Fifth
Circuit. Thus, the Board has remanded cases arising in the Fifth
Circuit for the CO to consider the job duties in determining
whether the employer rejected the U.S. worker for a lawful,
job-related reason. Teh-Tung Steamship (Houston), Inc.,
89-INA-9 (Apr. 17, 1990) (en banc); Ron Hartgrove,
Inc., 88-INA-302 (May 31, 1989) (en banc); Mr.
Umphrey's, 88-INA-538 (Nov. 17, 1989); Motorola, Inc.,
88-INA-304 (Oct. 31, 1989). The Board has not squarely addressed
the applicability of Ashbrook outside the Fifth
Circuit.
See also supra Division III, D in
regard to the rela-tionship between § 656.24(b)(2)(ii) and
Ashbrook-Simon-Hartley.
2. Ability to perform main job
duties
a. Employer's burden to
provide detailed basis for its conclusion
In Quality Inn, 89-INA-273 (May 23, 1990), the panel
held that an employer may reject an applicant for the inability
to perform the main job duties, despite meeting
the minimum specified requirements. The panel indicated, however,
that when an employer raises such a ground for rejection, it must
provide "a more objective detailed basis of its
conclusions." In this case, the applicant met the minimum
requirements for the position of Cook-Broiler; however, the
employer had unlawfully rejected the applicant for not knowing
particular recipes or standard recipe measurements because it had
failed to provide an objective detailed basis for its
conclusions. See also Impell Corp.,
88-INA-298 (May 31, 1989) (en banc) (burden is on the
employer to demonstrate on rebuttal that the applicant is unable
to perform the stated job duties); Japan Budget Travel
International, 90-INA-277 (Oct. 7, 1991).
The panel in Quality Inn cited Fritz's Garage,
88-INA-98 (Aug. 17, 1988) (en banc), for comparison. In
Fritz's Garage the applicant was rejected for the position
of foreign car mechanic -which included the job requirement of
four years in the position offered and the job duty of repairing
and overhauling German automobiles -because the applicant was not
an expert in Volkswagen repair. The employer stated that its shop
specialized in Volkswagens and only did incidental work on other
German makes. The applicant's resume showed experience in
repairing Mercedes, BMWs, Volkswagens, and Volvos; however, the
employer maintained that the applicant was unable to answer most
of the employer's questions on VW repair. The Board found that
the applicant had been unlawfully rejected because expertise in
VW repair was not listed as a requirement on the ETA 750A or in
the advertisements; hence, it was an undisclosed requirement. The
Board rejected a dissent that concluded that the job requirement
was "implicit." The Board also stated that even
assuming such a requirement was implicit, the CO would be
affirmed because the basis for rejection was vague and
unconvincing. The Board framed the employer's burden in this
situation as making "a convincing showing that [the U.S.
applicant] could not perform the job in an acceptable manner, as
contemplated by § 656.24(b)(2)(ii) of the
regulations."
Likewise, in Western Bagel Baking Corp., 90-INA-72
(May 22, 1991), a panel held that an employer's rejection of a
U.S. worker, based upon its subjective opinion that the applicant
could not meet the physical demands of kneading dough for bagels,
was not proper as it was undocumented.
See also Gould Semiconductors, Inc.,
87-INA-631 (Jan. 29, 1988), holding that the employer unlawfully
rejected two U.S. applicants for non-job-related reasons when
they satisfied the listed requirements based on their training
and experience, but did not have knowledge of skills which the
employer asserted were required to perform the duties assigned,
but which had not been listed for the job in the application for
labor certification. The employer had not required experience in
either the job offered or a related occupation.
b. Illustrative cases
In a number of cases labor certification has been denied
partially on the ground that the employer failed to show the
applicant's inability to perform the job duties. For example:
- An employer unlawfully rejected a U.S. worker where
the applicant's resume indicated that he satisfied the
employer's minimum qualifications, but the employer stated
that the applicant failed to answer, to its satisfaction,
questions concerning job duties. The employer stated that
the applicant's answers were too simplistic to be taken
seriously. It did not, however, further question the
applicant to determine if he was merely attempting to be
concise and could elabo-rate if necessary. In addition,
there was no foundation in the record for the employer's
conclusion that the applicant's resume was untrue. Entron
Enterprises, Inc., 89-INA-132 (Feb. 27, 1990).
- In Future Furniture, Inc., 89-INA-17 (Oct. 30,
1989), the CO's denial was affirmed, where, on its face, the
U.S. applicant's resume supported the CO's determination
that the applicant met the stated job requirements, and
where the employer failed to submit convincing documentation
that the U.S. applicant was unable to perform the
stated job duties.
- In Holloway Florist and Gift Shop, 89-INA-113
(Oct. 30, 1989), the employer was found to have unlawfully
rejected four applicants because they lacked experience.
Experience was not listed as a requirement and the employer
failed to demonstrate that the applicants could not perform
the job duties.
- See also supra Division III, F
for cases indicating that employer must consider whether an
applicant could perform the stated job duties within a
reasonable period of on-the-job training.
- See also infra Division IV, J, 3 cases
involving the ability to perform the basic job duties.
3. Incorporation of job duties into
requirement of "experience in the job offered"
In defining the requirements for the job, experience in the
job offered means experience performing the listed job duties.
Integrated Software Systems, Inc., 88-INA-200 (July 6,
1988). Job requirements not specified as such are deemed
incorporated through the listed job duties and the requirement of
experience in the "job offered." An employer,
therefore, may reject U.S. applicants who lack experience in some
of the key duties. Saritejdiam, Inc., 89-INA-87 (Dec. 21,
1989) (certification denied, however, because the alien lacked
those requirements).
For a discussion of the distinction between job duties and
job requirements, see Bel Air Country Club,
88-INA-223 (Dec. 23, 1988) (en banc).
K. Knowledge of or familiarity with
field
1. Subjective nature of requirement;
strict scrutiny applied
A requirement characterized as "familiar with,"
although not impermissibly vague, can only be measured
subjectively, and requires strict scrutiny. Baosu
International, Inc., 89-INA-38 (Oct. 30, 1989).
2. Applicant's possession of required
knowledge
An employer unlawfully rejected a U.S. applicant where it
required "familiarity" with garment, textile and
warehouse operations and the applicant's resume indicated that he
did have such familiarity. Baosu International, Inc.,
89-INA-38 (Oct. 30, 1989). In contrast, an employer lawfully
rejected a U.S. applicant for the position of pastry chef where
the applicant stated that he had never heard of pastries
specified in the employer's application and requiring knowledge
of these pastries was not challenged by the CO as unduly
restrictive. The DuJon Corporation, 89-INA-121 (June 18,
1990).
3. Currency of knowledge
An employer may not reject an applicant for not possessing
current knowledge of a professional specialty without adequate
documentation; mere suspicion of such shortcomings does not
satisfy an employer's burden to document lawful job-related
reasons for rejection. Hill-Fister Engineers, Inc.,
89-INA-114 (Feb. 6, 1990) (engineering). An employer, however,
may reject an applicant for not possessing current
knowledge of a subject where affidavits show that the field is
changing rapidly and that the applicant's knowledge is eight
years old. Texas Instruments, 88-INA-413 (May 23, 1989)
(en banc) (semiconductor product engineer).
CONTINUE TO CHAPTER 23 -