Legal Citations for ILW.COM's Seminar
""Labor Certification with Joel Stewart"
With Joel Stewart, Roxanna Bacon and Lorna Rogers Burgess
Part 2 held on March 22nd, 2002
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Cites from Roxanna Bacon
* Identifying info from page 1 of the 147 page OMB-approved PERM draft
regs: "Billing Code 4510-30, Department of Labor, ETA, Labor Certification
for the Permanent Employment of Aliens in the United States:
Implementation of New System [RIN 1205-AA66]"
* Q&As on Conversion of RIRs:
* The actual conversion regs:
Cites from Joel Stewart
* April 13, 1993, memorandum from Barbara A. Farmer, Administrator, Office
of Regional Management to William J. Haltigan, Regional Administrator
Philadelphia regarding the policy guidance on how many hours per week
constitute "full-time employment." InfoNet Title: Standards to Determine
Full Time Employment.
* Also, Comments to Final Rule Federal Register, August 3, 2001 (Volume 66,
Number 150) Employment and Training Administration, Labor Action, Final
Rule Effective date: September 4, 2001. Comments entitled "Supplementary
Information" by Dale M. Ziegler, Chief, Division of Foreign Labor
Cites from Lorna Rogers Burgess
* Requirements of education training and or experience stated on the ETA
750 Form in Boxes 13, 14 and 15.
(1) The requirements are unduly restrictive 656.21(b)(2) if: (a) exceed the
SVP quantification or definition associated with the DOT code appropriate
for the job (b) are not normal to the job in the industry (c) include
foreign language requirements.
(2) If any of these three criteria exist, the requirements must be
documented by business necessity which is a showing that the requirement is
reasonable in the context of the employer's business and is necessary for
performance of the job offered. Matter of Information Industries, 88-INA-82
(Feb. 8, 1989)(en banc).
(3) The employer does not have to demonstrate business necessity if the
requirements are with the DOT/SVP or normal to the industry.
(4) To justify foreign languages there must be substantial use in the
offered position for reasons such as expansion, supervision and
communication with customers. But supervison may fail the first prong of
the Bus necessity test as the foreign language of the workers may have no
inherent relationship to the employer’s business. Matter of Lucky Horse
Fashion, Inc., 1997-INA-182 (BALCA Aug. 22, 2000). (Garment workers are
predominately Chinese speaking).
(5) The requirements stated must also be the actual minimum requirements.
20 CFR 656.21(b)(5). They are not the actual minimum requirements if the
beneficiary was hired in the same job by the same employer and gained the
qualification through on the job training, unless it is infeasible to train
(6) Training in a substantially different job with the same employer is
okay; Matter of Delitizer Corp. of Newton, 1988-INA-482 (May 9, 1990)(en
banc). Factors to be considered include: relative job duties, supervisory
responsibilities, job requirements, the positions within the employers
hierarchy, employer’s prior employment practices, whether an by who higher
position has been filled, whether higher position is newly created, and
respective wage offers. If the employer is required to delete otj then the
salary offered should reflect the lowered level of education and
experience. Matter of University of North Carolina, 1990-INA-422 (BALCA
June 9, 1992). A more recent case addressing this issue is Matter of
Systems Plus Technology, Inc., 1999-INA-311 (BALCA Aug. 10, 2000). A
foreign employer affiliate with the US employer may be viewed as the same
employer. Matter of Inmos, 1988-INA-136 (June 1, 1990)(en banc). Training
gained with a operationally distinct affiliated company abroad may also be
okay, Matter of Reiter Corporation, 2000-INA-193 et al, (BALCA Sept, 29,
2000). Infeasibility is very rare.
(7) Alternative job requirements are appropriate unless they appear to be
tailored to the alien and narrow rather than expand the pool of qualified
applicants. Alternative experience gained in a lesser experienced
occupation may not be appropriate if it appears to merely qualify the
alien; the alternative experience should be in a substantially equivalent
occupation to the primary experience required. Matter of Kellogg, et al,
94-INA-465 (BALCA Feb. 2, 1998)(enbanc). Substitute: “any suitable
combination of education, training or experience is acceptable.” Experience
gained in a lesser job with the same employer may be in a sufficiently
dissimilar occupation to avoid the 656.21(b)(5) training on the job issue;
but for the same reason may not be substantially equivalent under the
Kellogg standard as an appropriate alternative experience requirement.
Matter of Animal Crackers Café, 1999-INA-257 (BALCA Aug. 3, 2000).
(Cook/Kitchen Helper). Matter of Juan Rodriquez, 2000-INA-128 (BALCA Sept.
21, 2000). (Brick layer/Brick layer helper). The only solution according to
BALCA in Animal Crackers is to readvertise with the language “any suitable
combination of education, training or experience is acceptable.” Animal
Crackers makes clear that the Kellogg basis for denial was 656.21(b)(5) not
minimum requirements because tailored to the alien, not 656.21(b)(2) unduly
restrictive and therefore rebuttable with a business necessity
justification. In addition to 2 years of experience looking suspicious, the
requirement of a Master’s level degree to the extent it moves a job from
EB3 to EB2 might also prompt inquiry as to whether it is unduly
restrictive. A Master’s level degree may be within the DOT, normal, or
justified. See for example Matter of CBH Consulting Engineers, Inc.,
2000-INA-220 (BALCA Aug. 30, 2000).
(8) Equivalency of a combination of education and experience to a degree
may be okay if the equivalency measurement is stated on the form.
(9) Although an applicant may be lawfully rejected for failure to satisfy
an unchallenged stated job requirement, the CO upon review of the resumes
may find that an applicant based upon a combination of education training
and experience can perform the job in a reasonable manner, even if “a
nominal period of on the job training may be required” Mindcraft Softeware
Inc.,1990-INA-328 (BALCA Oct. 2, 1999). 20 CFR 656.24(b)(2), but the burden
shifts to the CO to explain why. See Whats a Bagel of Chevy Chase,
1999-INA- 252 (BALCA October 21, 1999).
(10) The described job must be a bona fide job. 20 CFR Section
656.20(c)(8). This is a tremendously broad concept with might be used by
the CO when they just do not like the picture. For example, the CO may be
prejudiced that the employment of a household cook is rare, and suspect
because the quantum of experience required for a household cook may move
the job into the skilled worker category from the other worker which would
be the preference category of other more general domestic worker. (SVP 6 is
1 to 2 years; anything below SVP of 6 is an other worker). Matter of Carlos
Uy III, 1997-INA-304 (Mar.3, 1999) (en banc). (Precludes use of lack of
full time job 656.3. Imposes totality of the circumstances test to see if
bona fide job offer.) Rightly, the CO should apply the business necessity
standard to such a job rather than the bona fide job offer; combination of
duties, or perhaps the actual minimum requirements standard if it appears
the worker was hired without the quantum of experience as a cook now
required. Matter of Martin Kaplan et al, 2000-INA-23, (BALCA July 2,
2001)(en banc) holds that cooking specialization requirement for domestic
cooks are unduly restrictive under 656.21(b)(2) and must be justified by
business necessity; apply this standard before analysis as a bona fide job
(11) Although RIR gives leeway to omit much of the requirements from the
ads; specific requirements may be of benefit if workers apply who meet the
generic ads to articulate a lawful reason for rejection and in addition if
further advertising is required despite the RIR request.
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