656.1(a) Statutory Burden of Proof (Section 212(a)(5)A) of the INA).
Most lawyers do not realize that the statutory mandate clearly places the two main burdens of proof squarely on the shoulders of the Secretary of Labor, not on the employer. One is to certify that no U.S. workers who are able, willing, qualified and available, and/or that that the employment of the alien will adversely affect the wages and working conditions of United States workers similarly employed. If the Certifying Officer cannot provide that U.S. workers are able, willing, qualified and available, or that the working conditions of U.S. workers similar employed will adversely affect the wages and working conditions, the application for labor certification must be approved. The regulation states, The permanent labor certification program is governed by the Immigration and Nationality Act, 8 U.S.C. 1101 et seq. and 20 CFR part 656.
This regulation can be found at http://www.foreignlaborcert.doleta.gov/perm.cfm.
Employers applying for labor certification must comply with all regulatory and statutory requirements. The issue of “who has the burden of proof” has long been misunderstood. It was generally thought by practitioners that the employer had the burden of proof in labor certification proceedings, however the ultimate burden of proof by clear language of the statute lies with the Secretary of Labor.
The employer has a lesser and implied burden which is twofold: (1) to submit the required initial documentation in accordance with the regulations (the burden of going forward with the application) and (2) to respond to agency requests for information or documentation during the labor certification process (the burden to comply with the regulations). The primary or ultimate burden of proof lies with the Secretary of Labor, who, through the Certifying Officer, must determine whether an application will be approved or denied. No application can be denied unless (a) the employer fails to follow the regulations or unless (b) the certifying officer makes a finding (1) that there are US workers who are able, willing qualified and available or (2) that the employment of the alien will adversely affect the wages and working conditions of United States workers similarly employed.
As a matter of law, these determinations must be based on substantial evidence, however, in actual practice, the DOL often bases its findings on inferences signaled by the phrase “it appears that” or by unproven conclusory statements like “the employer does not require a skilled cook”. To obtain an approved labor certification, the Employer must follow the regulatory process and provide documentary evidence for each requirement, section by section. BALCA has interpreted into law a series of requirements that are viewed as inherent or implied by the regulations, such as the requirement to offer a “bona fide job offer” and the requirement to provide documentation that is “relevant and easy to obtain” when requested by the Certifying Officer. If the Employer fails to comply with only one of the many regulatory requirements, the C.O. may deny the application, not because of availability of US workers or adverse wage impact, but simply because the Employer failed to fulfill the regulatory requirement as interpreted. T
he legislative history of the regulations and statute are very important to understand the PERM Rule. A historical analysis has been written by Gary Endelman, “The Lawyer’s Guide to 212(a)(5)(A): Labor Certification from 1952 to PERM”. Mr. Endelman’s article, reproduced in the PERM BOOK II and on ILW.COM, offers an in-depth understanding of the statute and the regulations necessary for Employers, Attorneys and Agents to argue appropriate legal responses to final determinations and audit requests.
For many years the first subsection of the statute relating to insufficient U.S. workers, served as a common basis for denial of applications for labor certification, however, after 1998, the issue of prevailing wages gained the spotlight due to the introduction of new concepts such as the SOC, the OES, the O*Net and the revolutionary “two-tier” approach announced in GAL 2-98. Many more cases were disputed, denied and appealed to BALCA on prevailing wage issues. Under PERM, wage disagreements have been greatly attenuated due to the introduction of the “four-tier” system, however, many problems persist. The determination of a four-tiered prevailing wage is still based on faulty data and analysis in the SOC and the OES, with from unusual and inexplicable fluctuations.