Note: For labor certification applications filed on or
after November 22, 1991, the effective date of the 1990
amendments to the Act, the regulations regarding actual minimum
requirements have been recodified from 20 C.F.R. §
656.21(b)(6) to § 656.21(b)(5).
TABLE OF CONTENTS
Chapter 1 ACTUAL MINIMUM REQUIREMENTS/PRIOR HIRING
PRACTICES/FEASIBILITY OF TRAINING
Employers may not require stricter requirements for U.S. applicant than they will accept for
aliens. ERF, 89-INA-105 (Feb. 14, 1990). International School of
Dog Grooming, 93-INA-300 (Oct. 4, 1995).
An employer may not require more experience of U.S. workers than the alien possesses.
Where
U.S. workers were rejected for same lack of qualification that Alien also lacked, such
rejection
was unlawful. Capricorn Systems, Inc., 93-INA-333 (August 30, 1995).
For the position of cook Employer required either 2 years experience in the job offered or
2 years experience in the position of domestic (with cooking experience). Alien stated that
she worked for Employer as a cook for around two years and three months. Before that, Alien
had worked for Employer as a housekeeper. The Board granted certification, reasoning that
the CO should have but did not require Employer to explain why she was not treating U.S.
workers as favorably as she treated Alien. SeeRocco
Parente, 92-INA-248 (Aug. 2, 1993). Gail Bratman, 94-INA-568
(Aug. 30, 1996).
An employer is not allowed to treat an alien more favorably than it would a U.S. worker.
SeeERD Inc., d/b/a Bayside Motor Inn, 89-INA-105 (Feb.
14, 1990). Van Nuys Auto Sales, 94-INA-386 (Oct. 25, 1995).
Employer applied for certification for the position of cook, domestic, live-in or
live-out and required 2 years of experience in the job offered. The CO issued a NOF proposing
to
deny certification because, among other reasons, it appeared as if Employer hired Alien
without the required experience. In rebuttal, Employer argued that Alien had experience
in the job duties of cook, domestic as opposed to the job title. A letter from a previous employer
attached to the rebuttal indicated 1 and one half years experience and the ETA 750A indicated
additional
experience which was based on Alien's own assertions. The CO denied certification and the
Board affirmed. Citing ERF Inc., d/b/a Bayside Motor Inn, 89-INA-105 (Feb.
14, 1990), the Board noted that employers are not allowed to treat aliens more favorably by
requiring more stringent qualifications from a U.S. worker than they require from aliens. The
Board reasoned that, although Employer had provided supporting documentation indicating
that Alien had experience in the duties of the position, this documentation amounted only to
1 and one half years of experience. Alien's assertions of more experience could not be
considered
because an alien's assertion without supporting documentation does not demonstrate that he or
she meets the minimum requirements for the position. Mr. & Mrs. Marc
Cohen, 95-INA-150 (Dec. 5, 1996).
C. Conflicting interpretations of the regulation1. Majority interpretation
no new cases
2. Minority interpretation
no new cases
II. Prong one: actual minimum requirements and prior hiring
practices
A. General documentation requirements
Employer failed to establish that the job was offered at its actual minimum
requirements where the CO questioned whether Alien possessed the one year experience
requirement prior to employment with Employer and Employer's rebuttal failed to address
this
point. Moreover, Employer's rebuttal evidence contending that it is unfeasible to train new
employees given the expanding nature of its business is not sufficient to document infeasibility
to train. Newcastle Fabrics Corp., 92-INA-305 (May 4, 1994).
SeealsoExcel Limousine Corp.,
93-INA-233 (May 24, 1994) (denying certification where Employer, who required high a
school diploma and 1 year experience, only documented that Alien possessed the requisite
diploma); Vista Computing Services,
Inc., 93-INA-348 (Aug. 16, 1994) (finding that Employer failed to document that Alien
possessed
three year experience requirement for the position until after issuance of the FD); Hugh
Browne and Edythe Heus Browne 93-INA- 350 (Jan. 20,
1995) (finding that Employer failed to document that Alien possessed minimum
qualifications when hired);
Farbell Electronics, 94-INA-59 (Apr. 28, 1995) (finding that Employer's
rebuttal, indicating
that Alien's prior experience included five years in an assistant position but only one year in
the position offered, failed to document that Alien possessed the two years experience as
required).
Labor certification denied where Employer failed to document that the Alien possessed
required three months experience as private housekeeper. The panel concluded that Employer's
documentation pertaining to Alien's previous experience as a commercial
housekeeper was insufficient since job duties of private versus commercial housekeeper are not
comparable. Celia and Jose Lua, 93-INA-304 (Jan. 26, 1995).
Labor certification denied where Employer required experience as a men's garment
maker yet
Alien's previous experience was as a women's garment maker. The panel stressed that while the
duties of men and women garment maker might be similar, Employer specified the job duties
for
the position as men's garment maker and required three years experience in such. B J D
Inc., 93-INA-224 (Aug. 16, 1994).
Labor certification properly denied where Employer required five years experience in the
job
of accountant, the primary duties of which required preparation of U.S. tax forms, but Employer's
documentation did not evidence that Alien possessed such experience prior to
employment with the present Employer. A.V. Cortez Assoc., 94-INA-130
(Mar. 7, 1995) (errata issued March 28, 1995, reissuing case under that date and noting that last
paragraph on page 5 and the first paragraph on page 6 were erroneously omitted in the original
decision).
Employer failed to establish that the job was offered at its actual minimum
requirements where Employer stated that it "may be able" to "shorten or
lengthen" the experience requirement and "waive" the language requirement;
rather, Employer's unresponsive rebuttal indicated that the job requirements were used to
"restrict eligibility to Alien already in its employ." Kent
Corp., 89-INA-240 (Feb. 28, 1992).
The fact that Alien gained the experience with Employer in a foreign country as
opposed to the United States does not support a finding that the job has been listed with the
actual minimum requirements. Mr. and Mrs. John Tobiczyk, 91-INA-101
(May 4, 1992). SeealsoFoo Lim Moon,
Inc., 90-INA-317 (Dec. 11, 1992).
The job of systems analyst was not listed at its actual minimum requirements where the
CO requested documentation that Employer's "other systems analysts had
experience with rollback, rebuild, and reorganization utility programs" but Employer
failed to provide such information. Softstar Computer Consultants,
Inc., 92-INA-275 (July 2, 1993).
Labor certification was properly denied where the panel noted that Alien gained his
experience with a company related to the petitioning Employer. The ETA-750 of the
petitioning Employer and letterhead of Employer where Alien gained his experience
listed the same address and both companies were involved in the landscaping business.
Rocco Parente, 92-INA-248 (Aug. 2, 1993).
Labor certification properly denied despite Employer's adequate showing that the currently
available position is a distinct and dissimilar position from the job previously held. Employer
required experience in the position, yet did not indicate where Alien gained such
experience while working in the previous job. The panel noted that either Alien performed
the job duties while employed in the previous job, indicating that the jobs are not actually
distinct and dissimilar, or Alien was in fact hired without possessing the experience required
of U.S. applicants. Express Software, Inc., 93-INA-93 (Jan. 4,
1994).Datum Environmental, Inc., 95-INA-86 (Oct. 2, 1996).
Holly's Bakery, 95-INA-20 (Aug. 22, 1996) (denying certification for the
position of baker where Employer documented that Alien had 3 and one half years of the 4
required
years of experience but did not substantiate its assertion that Alien worked as a baker in
Chihuahua for 2 years which would have made him qualified for the position if substantiated).
An employer may not hire an alien with fewer qualifications than it is now requiring if it has
not documented that it is not now feasible to hire a U.S. worker without the training or
experience. SeeCapriccio's Restaurant, 90-INA-480 (Jan. 7,
1992). Van Nuys Auto Sales, 94-INA-386 (Oct. 25, 1995).
An employer cannot require U.S. workers applying for the job opportunity to have the same
type of experience that the alien acquired only while working for the employer in a similar job.
AEP Industries, 88-INA-415 (Apr. 4, 1989) (en banc); The CO questioned
whether the job requirements were the minimum requirements for the position and instructed
Employer to document that experience gained by Alien working for Employer was in a
position sufficiently dissimilar from the position for which certification was being sought.
Certification was denied because Employer failed to provide the requested documentation.
P & P Contractors, Inc., 94-INA-564 (Feb. 26, 1996).
Employer applied for certification for the position of machine technician/machine
operator. The job duties included setting "up lathes and milling machines with CNC
programming in order to operate..." machines, "[p]erform tool grinding,..."
"test for hardness of metals; set up tooling, write test and analyze programs."
Employer listed several special requirements, including a "[t]echnichal high school
diploma specializing in machine operations and technology of machine operations...trigonometry
and mechanical drafting, CNC programming...and metric system of weights and
measures." The CO issued a NOF proposing to deny certification on the grounds that
Alien had not been qualified in trigonometry, mechanical drafting and CNC. The CO instructed
Employer to explain why it was infeasible to train a U.S. worker in these areas in the same
way Alien was presumably trained. Employer stated in response that Alien received
training in CNC programming by the company president. It stated that it was more
advantageous to operate longer hours with highly trained employees than to train. It stated that
when Alien was hired, someone who needed training also worked there and managed to
"crash" a machine costing thousands of dollars. Employ failed to document the
annual financial volume of the business even though the CO directed it to do so. The CO denied
certification and the Board affirmed. Citing Capriccio's Restaurant,
90-INA-480 (Jan. 7, 1992), the Board noted that if employers hire aliens with lower
qualifications than
they are now requiring, they violate § 656.21(B)(5) if they fail to document that it is not
now feasible to hire a U.S. worker without the training or experience. In the instant case the
Board found that Employer's unsupported assertions that business is expanding failed to
document infeasibility of training. Ridge Precision Products, 95-INA-149
(Nov. 22, 1996).
An employer violates § 656.21(b)(5) where it hires an alien with lower qualifications
than it is now requiring of U.S. workers and it has not documented that it is not now feasible to
hire a U.S. worker without that training or experience. SeeCapriccio's
Restaurant, 90-INA-480 (Jan. 7, 1992). Employer required that U.S workers
applying for the position of bakery supervisor have 2 years experience in the job offered. Alien
had no supervisory experience. Zaro's Bread Basket, 94-INA-514 (Oct.
30, 1995).
B. Proof that alien was qualified when hired
Labor certification denied where alien received qualifying experience through on the job
training with Employer. Employer did not establish infeasibility of similarly training
U.S.
worker. Estrada Dental Supply Co., 94-INA-38 (Sep. 27, 1994).
Labor certification was properly denied where Alien did not possess all of the job
requirements thus evidencing that the job was not listed at its actual minimum requirements.
Valley Beth-Shalom School, 91-INA-382 (Dec. 28, 1992); Unlimited
Express Service, (Feb. 14, 1994); Star Manufacturing, Inc.,
93-INA-49 (Feb. 28, 1994) (denying certification where Alien was hired without required six
months experience); Nassau
County Medical Center, 93- INA-36 (Feb. 28, 1994) (denying certification where Alien
hired without possessing a required medical license); Mrs. Akhtar
Rahnama, 93-INA-27 (Jan. 24,
1994) (denying certification where all of Alien's past experience in nursing while position is
for child tutor); Ter-Mar
Fashions, 92-INA-369 (Dec. 17, 1993) (denying certification where Alien was hired
without having the required one
month experience in the job); Gouda Management Co., 91-INA-218 (Dec. 11,
1992). SeealsoLaser Network, 93-INA-98
(Nov. 26, 1993) (finding that Employer failed to meet burden of demonstrating that Alien had
experience in
laser printer cartridges rather than simply laser printers); City Video,
Inc., 92-INA-180 (July 19, 1993) (denying certification where Employer offered no
documentation to establish that Alien had 30 hours
of college credit); Mah Industries, 92-INA-187 (Apr. 28, 1993) (denying
certification where Alien lacked experience with printing presses and Employer rejected three
U.S. workers on this ground);
Newcastle Fabrics Corp., 92-INA-175 (Apr. 19, 1993); LA Dye &
Print Works, Inc., 92-INA-201 (Apr. 14, 1993); Hedwig Cailoa,
91-INA-327 (Dec. 2, 1992).
Employer failed to document that Alien met the minimum requirement of three
months of experience where " Employer's rebuttal evidence is ambiguous and clearly
conflicts with the signed, statement of qualifications of Alien." In addition, the panel
noted that Employer's rebuttal, if credited, "would establish only two months of
experience in administering prescribed medication prior to the filing date, not the three
months required." Anthony Bielenis, 92-INA-319 (Aug. 3, 1993).
An employer cannot reject a U.S. worker for lack of experience when the alien likewise
lacked the experience when hired. T.I.E. The Inventory Exchange,
92-INA-398 (Sept. 20, 1993); E.T. Consultants, Inc., 92-INA-71 (July 2,
1993) (denying certification where Employer conceded that Alien did not have the
six months of required
experience); Golf Technics Nevada, 91-INA-361 (Feb. 1, 1993); Anil
Srivastava & Assoc., 91-INA-238 (Dec. 11, 1992); Maylis Textile
Corp., 91-INA-145 (Dec. 3, 1992); Stanford University, 91-INA-193
(June 17, 1992); Space Research, Inc., 91-INA-76 (May 4, 1992);
Wilbur Smith Assoc., 91-INA-29 (Mar. 31, 1992); The Iowa Packing
Co., 91-INA-88 (Mar. 27, 1992); Olympian Mortgage Group, Inc.,
91-INA-83 (Mar. 12, 1992); Stebbins Engineering & Manufacturing Co.,
92-INA-301 (Jan. 5, 1994) (denying certification where Alien was hired without required
Masters Degree).
Employer failed to state the actual minimum requirements for the job where it required
a B.S. in electrical engineering and one year of experience in the job offered as an
electrical engineer but the "Alien did not obtain her engineering degree until . . .
shortly before she began working for the Employer...so any experience she has as an engineer
was acquired while working for the Employer." Moreover, the panel noted that
Alien's experience did not include some of the duties listed in the ETA-750. Bently
Nevada Corp., 91-INA-63 (Mar. 31, 1992).
Employers failed to state the actual minimum requirements for a live-out housekeeper
where they required three months of experience and Alien had no experience before
working for Employers. Mr. & Mrs. Galo Mardirossian, 91-INA-41 (Mar.
13, 1992).
An employer's conclusory statement that the alien is qualified is an insufficient response
where the CO required documentation as to the alien's qualifications. Cal-Tech
Construction Co., 91-INA-148 (May 4, 1992).
Labor certification was properly denied where Employer conceded that Alien
obtained the casting experience needed for the job offered of jewelry supervisor while working
at his current job as a caster. New England Industries, Inc., 91-INA-200
(Nov. 25, 1992).
Labor certification was properly denied where Employer's documents failed to
establish that Alien was qualified for the job such that the job was not offered at its actual
minimum requirements. Lights of America, Inc., 91-INA-123 (Nov. 30,
1992).
Employer failed to document that Alien "met its stated minimum requirement
of four years experience as a lead japanese auto mechanic" when hired where the
ETA-750 B demonstrated no prior experience when Alien assumed his first job as a lead
auto mechanic and "[t]he statement from Alien's former employer does nothing to
confirm Alien's experience as lead Japanese auto mechanic." Asari Auto
Repair, 92-INA-238 (Mar. 2, 1993).
Employer demonstrated that Alien was qualified when hired for the job of
manufacturing test engineering manager which included a requirement of two years of
college or "equivalent work experience." The criterion for "equivalent
work experience", at 8 C.F.R. § 214.2(h)(3)(iii)(c)(5), directs that three years of
work experience equals one year of college. The panel noted that Alien possessed ten years
of experience and, thus, met the actual minimum requirements of the job. Capetronic
USA Manufacturing, Inc., 92-INA-18 (Apr. 12, 1993).
Employer demonstrated that Alien possessed minimum qualification of
"electrical engineering background" despite the fact that Employer's translation
of Alien's employment certificate does not detail the actual job duties he had performed.
The panel concluded that the translation clearly asserts that Alien was previously
employed in
the job title of "electrical engineer" and that this is sufficient "on its
face" to meet Employer's requirement. Sweda Corp.,
92-INA-190 (Oct. 13, 1993).
Labor certification granted where Employer demonstrated that Alien possessed the
minimum qualifications for the position of "system analyst" despite the fact that
Alien's prior experience was not gained with a firm engaged in "full services and
installation of fire sprinkler systems", the business in which Employer is engaged.
Employer documented Alien's past experience in the stated job duties and the panel found
"nothing in this description of job duties which exclusively relates to the business of
installation of fire sprinkler systems." The panel specifically concluded that the CO's
interpretation of Integrated Software Systems, Inc., 88-INA-200 (July 6, 1988),
which would hold that experience in the job duties could only be gained through prior
employment in a like business, was overly restrictive. Hammer Fire Protection,
92-INA-373 (Feb. 28, 1994).
Labor certification is properly denied where the alien does not possess all the job
requirements , thus evidencing that the job was not listed at its actual minimum requirements.
SeeValley Beth-Shalom School, 91-INA-382 (Dec. 28,
1992). Van Nuys Auto Sales, 94-INA-386 (Oct. 25, 1995).
1. Experience with different employera. Test for same or different employer
Labor certification denied where Employer owned two bakeries, Alien was trained at
one and
then transferred to job opportunity for which labor certification sought at second bakery. Alien's
prior experience in the job not deemed sufficiently dissimilar. Sonia's Bakery,
Inc., 93-INA-351 (Oct. 11, 1994). See alsoNunc,
Inc., 95-INA-73 (Oct. 31, 1996).
b. Procedural and evidentiary matters
i. CO must provide adequate notice of deficiency or
corrective action
no new cases
ii. Employer must provide documentation reasonably
requested by CO
