BRONX MEDICAL AND DENTAL CLINIC, 1990-INA-479 (Oct. 30, 1992) (en banc)
[Source: Immigration Law Systems, Inc., Columbus, OH *]
U.S. Department of Labor
Board of Alien Labor Certification Appeals
Washington, DC
<![CDATA[
DATE: October 30, 1992
CASE NO. 90-INA-479
IN THE MATTER OF BRONX MEDICAL AND DENTAL CLINIC, Employer
NAZRUL ISLAM, Alien
Neil A. Weinrib, Esquire
New York, New York
BEFORE: Brenner, Clarke, De Gregorio, Glennon
Groner, Guill, Litt, Romano, and Williams, ALJ
Nicodemo DE GREGORIO, Administrative Law Judge
REGION:2
I
STATEMENT OF THE CASE
In March of 1988, Bronx Medical and Dental Clinic (Employer) filed
an application for alien employment certification, to enable Nazrul
Islam (Alien) to fill the position of Controller. The duties of the job
were described as follows:
Analyze and examine accounting records. Prepare balance
sheets and profit and loss statements. Provide financial
and tax counseling. Perform corporate and financial
planning. (AF 14).
Employer stated on the application that the minimum education,
training, and experience necessary to perform satisfactorily the duties
of the job are a Master's degree in Business Administration and five
years of experience in the job offered or as an accountant. (AF 14).
As required by the regulation, Employer advertised the position in
order to recruit U.S. workers. Six workers applied for the job, and
all were rejected. Two of the applicants, Adam Rosenfeld and Abdul W.
Haqiqi were found to be unqualified for lacking the required MBA degree
(AF 46-47). After issuing a Notice of Findings (NOF) and considering
Employer's rebuttal, the Certifying Officer (CO) held that pursuant to
section 656.24(b)(2)(ii) applicants Rosenfeld and Haqiqi were both
qualified for the position, even without the M.B.A. degree.
Accordingly, the CO concluded that Employer had not documented that the
two applicants had been rejected for job-related reasons, in violation
of section 656.21(b)(7). (AF 61-62).
Employer sought review of the CO's Final Determination. We
reverse.
II
BASIC LABOR CERTIFICATION PROCESS
An employer who desires a labor certification on behalf of an alien
must file an Application for Alien Employment Certification form with an
appropriate State Job Service office. The application must set forth,
inter alia, a description of the job offer, as well as a statement of
the requirements for the job. 20 CFR 656.21(a)(2). The job
requirements may not be unduly restrictive. They must be those normally
required for the job in the United States and/or defined in the
Dictionary of Occupational Titles, and must not include requirements for
a foreign language. Section 656.21(b)(2). A job requirement that goes
above these limits must be shown to arise from business necessity.
Ibid. In addition, the job requirements must be the employer's actual
minimum requirements, and the employer must document that he has not
hired workers with less training or experience for similar jobs, or that
it is no longer feasible to hire workers with less training or
experience. Section 656.21(b)(6).
If the Job Service office finds the application acceptable, it
calculates the prevailing wage for the job opportunity and attempts, in
cooperation with the employer, to recruit U.S. workers. While the
office places a job order into the Job Service recruitment system, the
employer advertises the job in a medium most likely to bring responses
from able, willing, qualified and available workers. Section
656.21(e)-(g). The employer must provide to the local office a written
report of the results of the employer's recruitment efforts. In
particular, the employer must provide lawful, job-related reasons for
not hiring any U.S. worker who was interviewed or simply applied for
the job. Sections 656.21(b)(7), (j)(1)(iv). If the recruitment has
been unsuccessful, the local office sends the application to a
Certifying Officer of the United States Department of Labor.
III
LABOR CERTIFICATION DETERMINATIONS
The authority to make labor certifications is delegated to
Certifying Officers (CO). Section 656.24(b) provides that a CO shall
make a determination either to grant labor certification or to propose
to deny it on one of three bases: (1) whether the employer has met the
requirements of the regulation; (2) whether there is in the United
States a worker who is able, willing, qualified and available for the
job; and (3) whether the employment of the alien would have an adverse
effect upon the wages and working conditions of U.S. workers similarly
employed. In determining whether a U.S. worker is qualified, the CO
"shall consider a U.S. worker able and qualified for the job
opportunity if the worker, by education, training, experience, or a
combination thereof, is able to perform in a normally accepted manner"
the duties of the job. Section 656.24(b)(2)(ii).
IV
FACTS OF THE CASE
After completing its part of the recruitment process, Employer
filed its recruitment report. Employer had rejected two U.S.
applicants, Adam Rosenfeld and Abdul W. Haqiqi, as unqualified for the
job, in that neither had the MBA degree required by Employer. The CO
did not dispute the report, nor did she challenge the degree requirement
as restrictive or otherwise inconsistent with the regulation.
Nonetheless, the CO issued a Notice of Findings (NOF), alleging a
violation of section 656.21(b)(7) because Employer had failed to
document job-related reasons for rejecting Rosenfeld and Haqiqi.
Disregarding the degree requirement and citing section 656.24(b)(2), the
CO stated that the "Department of Labor standard for proficiency in the
occupation of Controller is four to ten years combined training,
education and/or experience," and that applicants possessing education,
training and/or experience "equivalent to the employer's requirements
and/or to the DOT standard" were considered qualified for the job. (AF
52). The CO then requested Employer to further document job related
reasons for the rejection of the applicants.
Employer sought to rebut the CO's findings, contending that the
U.S. applicants had been rejected for lawful, job-related reasons.
Moreover, Employer sought to contact Rosenfeld and Haqiqi, inviting them
to an interview, but they did not respond.
In her Final Determination, the CO adhered to her view that
Employer had failed to give lawful, job-related reasons for rejecting
the two workers, in violation of section 656.21(b)(7). The CO dismissed
the apparent unavailability of the two workers after the issuance of the
NOF as irrelevant, noting that she had "only required that Employer
submit documentation showing that the applicants were not qualified,
willing and available at the time of initial consideration and
referral."(AF 61).
V
DISCUSSION
A.
The Board has decided to consider en banc the following issue:
Whether 20 CFR section 656.24(b)(2)(ii) provides a
separate standard for judging the lawfulness of
an employer's rejection of a U.S. applicant, where
the minimum job requirements specified in Items 14
and 15 of Form ETA-750 are not found to be unduly
restrictive pursuant to 20 CFR section 656.21(b),
and where it is not found that any U.S. job
applicant possesses those minimum job requirements.
In order to appreciate the problem, it is necessary to consider the
time sequence in which it arises. An employer applying for a labor
certification is required to advertise the job, in an attempt to recruit
U.S. workers. Only if the recruitment efforts prove fruitless is the
application transmitted to a Certifying Officer for his/her decision to
grant "or deny labor certification. Thus, section 656.21 of the
regulation may be said to impose on the applicant-employer a burden of
production, to make a prima facie case that there are not U.S. workers
who are able, willing and qualified for the job. See Production Tool
Corp. v. Employment and Training Admin., 688 F.2d 1161, 1170 (7th Cir.
1982).
The CO's position presupposes the view that section
656.24(b)(2)(ii) applies to an employer at the recruitment stage of the
labor certification process. But this view is untenable. Section
656.24(b)(2) speaks only to Certifying Officers, and requires nothing
from an employer. Moreover, this section, unlike section 656.21(b)(2)
which specifies the qualifications that an employer may require for a
job opportunity, does not set forth job qualifications that an employer
could apply even if he wanted to do so. Section 656.24(b)(2)(ii)
directs a Certifying Officer to form a judgment concerning a worker's
qualification for the job, on the basis of education, training and
experience. Until such a judgment is formed, there is nothing to apply.
Thus, the practical result of the CO's approach is to require an
employer, in order to comply with section 656.21(b)(7), to judge job
applicants on the basis of all possible combinations of education,
training, and/or experience that a CO might consider qualifying if and
when the case requires his action. In this case, for instance, the CO
considered Rosenfeld and Haqiqi both qualified for the same job, on the
basis of different academic degrees and work experience, and then
dismissed as immaterial Employer's efforts to re-evaluate the two
applicants on the basis of the CO's notions of alternative
qualifications. We do not believe that section 656.21(b)(7) requires
foreknowledge.
In conclusion, section 656.21(g)(6) expressly requires an employer
to state "the employer's minimum job requirements" in the job
advertisements, and thus implicitly authorizes the employer to judge the
qualifications of job applicants by those requirements. Therefore, the
question whether the employer has rejected an applicant for a lawful,
job-related reason must be determined on the basis of those job
requirements. 1/ We find no warrant, in law or good sense, for a CO
substituting, after the fact, his/her own judgment for the employer's
job requirements, and then penalizing the employer for having acted
without regard to that judgment.
We leave for another day the question of how far a CO may go,
pursuant to section 656.24(b)(2) and consistently with procedural
fairness, in disregarding job requirements allowed by section 656.21(b)
and substituting his/her own judgment as to what it takes to do a job in
a normally accepted manner. Today we only reaffirm what we stated in
Concurrent Computer Corp., 88-INA-76 (Aug. 19, 1988) (en banc) and
Adry-Mart, Inc., 88-INA-243 (Feb. 1, 1989) (en banc). We hold that, so
long as an employer's job requirements are within the limits prescribed
by section 656.21(b), the rejection of a U.S. worker who does not meet
all those requirements is a rejection for a lawful, job related reason,
within the meaning of section 656.21(b)(7). 2/
B.
Three concurring colleagues are concerned that the effect of our
interpretation of section 656.21(b)(7) would be either to read section
656.24(b)(2)(ii) out of the regulations or to use it only in one
direction. In view of the fact that we explicitly reserve consideration
of section 656.24(b)(2)(ii), the alarm is premature, to say the least.
Moreover, our colleagues' solution of the problem, by shifting the
burden of proof, misses the point. The question is not who should carry
the burden of proof, but what does an employer have to prove in order to
demonstrate compliance with section 656.21(b)(7). On a section
656.21(b)(7) issue, the burden of proof, in both senses of this term,
should be just where the regulation puts it, on the employer who can
best document his own reasons for rejecting job applicants. The
question, rather, is whether a CO may, after the recruitment process is
closed, substitute his/her job qualifications for those which the
employer is permitted to require, and required to advertise, by section
656.21, and then second guess the employer's hiring decisions.
Our concurring colleagues also suggest that this case is no
different from one in which a CO finds that the employer has unlawfully
rejected an applicant who met the stated requirements. We see the
instant case as quite different, in that the CO has switched the
standard to be used in screening out the applicants. This difference is
reflected in BALCA decisions. Where a CO raises an issue of unduly
restrictive requirements, the normal practice is to give the employer a
choice to rebut the NOF or to delete the restrictive requirements and
retest the labor market, despite the fact that every employer has
advance notice of which requirements are restrictive, from a reading of
section 656.21(b)(2). See, for instance, Babtech Enterprise Co.,
91-INA-228 (Oct. 5, 1992). In fact, panels of the Board have gone
farther. In A. Smile, Inc., 89-INA-1 (Mar. 6, 1990) a panel held that
if an employer attempts to justify a requirement deemed unduly
restrictive by the CO, and also expresses the willingness to delete the
requirement and readvertise if the CO is not persuaded by the
justification, the CO may not deny certification but must offer the
employer the opportunity to readvertise. See also Mr. & Mrs. Herbert
G. Peabody, 90-INA-230 (April 30, 1991). In contrast, a violation of
section 656.21(b)(7), which is the ground of denial in this case,
implies culpability, and for this reason the wrongdoer is not given a
chance to retest the labor market, which is what happened in this case.
See Arcadia Enterprises, Inc., 87-INA-692 (Feb. 29, 1988). By changing
the standard for judging the qualifications of job applicants after the
recruitment process and by denying Employer an opportunity to retest the
job market, the CO in effect denied Employer the opportunity to "cure
the defects" in violation of section 656.25(c)(3).
C.
The CO has advanced, for the first time on appeal, an alternative
basis for the denial of certification in this case. The CO cites cases
imposing a duty to make further inquiry where an applicant's resume
raises a reasonable prospect that the applicant meets all of the
employer's stated actual requirements. We think it sufficient to say
that reliance on such cases is misplaced, in view of the fact that the
CO has conceded that Rosenfeld and Haqiqi did not meet the MBA degree
requirement. Moreover, when "an applicant's resume is silent on whether
he or she meets a 'major' requirement such as a college degree, an
employer might reasonably assume that the applicant does not and,
therefore, rejection without follow up may be proper." Gorchev & Gorchev
Graphic Design, 89-INA-118 at 2 (Nov. 29, 1990)(en banc).
ORDER
The Final Determination of the Certifying Officer denying labor
certification is REVERSED. The Certifying Officer is directed to GRANT
labor certification.
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1/ We may point out that Technical Assistance Guide No. 656, which
provides supplementary information for explaining and applying the
regulations at 20 CFR Part 656, is in full accord with this view.
"f. Rejection of U.S. Workers. U.S. workers
may not be rejected for a job opportunity
offered to an alien except for lawful job-related
reasons. The employer must state specific reasons
for rejecting each U.S. worker who applies in
response to advertising the posted notice, the
job order, or other sources of recruitment.
Resumes of applicants, if available, should be
submitted with the application for certification
to support the employer's statement.
The employer should screen applicants against the
stated requirements in the job offer and should
not impose additional requirements during interviews
with U.S. workers. U.S. workers must make it known
during interview or on their resumes that they meet
the employer's stated requirements to be considered
qualified for the job. It is not acceptable for an
employer to reject U.S. workers who may be
"overqualified," but are willing to accept the job
at the wage and conditions offered." TAG No. 656,
at 53.
2/ Of course, a Certifying Officer may challenge an employer's
requirements for a job as restrictive under section 656.21(b), and allow
the employer an opportunity to rebut the finding or cure the defect.
Bronx Medical and Dental Clinic, 90-INA-479
Judge Lawrence BRENNER, joined by Judges GRONER and GUILL, concurring in
the result
We disagree with Judge De Gregorio's four-judge plurality holding
that a U.S. worker is unqualified, and therefore properly rejected by
an employer, simply because the U.S. applicant does not meet the
employer's job requirements, if the requirements are not found to be
unduly restrictive. By using this as the sole standard, the plurality
fails to recognize the applicability of section 656.24(b)(2)(ii). 1/ As
stated in Judge Brenner's dissent in Adry-Mart, Inc., 88-INA-243 (Feb.
1, 1989) (en banc), we believe that the plurality's holding should be
applied as a general rule, but not as the end of the analysis.
In recognition of the general rule, section 656.24(b)(2)(ii) cannot
provide a basis for the Certifying Officer ("CO") simply to dismiss an
employer's job requirements without determining that the requirements
are unduly restrictive. Consistent with several BALCA panel decisions,
we would recognize both the general rule and the applicability of
section 656.24(b)(2)(ii) by putting the burden on the CO to show how a
U.S. applicant's qualifications (" . . . education, training,
experience, or a combination thereof, . . . ") specifically
compensate for the failure to meet the stated requirements and therefore
enable the applicant to perform the employer's job. See, e.g., External
Resources International, Inc., 90-INA-32 (Apr. 19, 1991); Houston Music
Institute, Inc., 90-INA-450 (Feb. 21, 1991); Shakti Engineering &
Design Group, 89-INA-347 (Nov. 2, 1990).
The plurality is concerned that if a CO is permitted to use section
656.24(b)(2)(ii) at the time of recruitment, an employer would be in the
dark about how to judge the qualifications of job applicants because
there are a myriad of possible combinations of education, training and
experience which a CO might later consider qualifying. In part, the
plurality's problem is that an employer's first notification of a defect
from the CO is by the Notice of Findings ("NOF"), issued after the
recruitment process. But this is almost always the case in the labor
certification process; e.g., a CO's finding that a U.S. worker who met
the stated requirements was unlawfully rejected is contained in the same
NOF issued after the recruitment process. There is no way, of course,
for a CO to earlier make a finding under section 656.24(b)(2)(ii), since
it must be applied to a specific applicant.
To the extent the plurality believes that the application of
section 656.24(b)(2)(ii) would be unfair to an employer because the
criteria for judging an applicant qualified under this section are
vague, we disagree. AS applied to a specific applicant, it is
reasonable to expect an employer who is open minded about who to hire to
evaluate the education, training and experience of an applicant to
decide if he or she can properly do the job. Moreover, because the
burden would be on the CO to specifically show why an applicant who
fails to meet the employer's unchallenged requirements compensates for
this failure and therefore is nevertheless qualified to do the job, any
vagueness will benefit the employer. When such a judgment by a CO is
upheld by the Board, the applicant's ability to perform the job would
have been quite clear to an employer at the time it evaluated the
applicant during the recruitment process.
We have considered whether it would be good policy to allow an
employer to conduct a new recruitment, and thereby allow an alien to
retain the visa priority date, after a CO has determined that the
employer rejected an applicant who is qualified to do the job under
section 656.24(b)(2)(ii), where the qualified rejected applicant has
become unavailable subsequent to the recruitment period. On balance, we
are inclined to the view that although such a second bite of the apple
would provide an ultimate safeguard for an employer which truly did not
appreciate that the rejected worker was qualified even though he or she
did not meet the stated requirements, such an outlet would provide an
incentive for employers to reject qualified applicants in the hope that
those applicants would become unavailable and that no new ones would
apply. We do not permit an employer to try again as part of the same
application where it has rejected an applicant who met its requirements.
If our rulings in this regard should be changed, in light of our views
in the previous two paragraphs such rulings should be the same for all
of these situations. Thus, the inability of an employer to later cure
the wrongful rejection of a U.S. worker under section 656.24(b)(2)(ii)
is not unique to this regulation, and cannot serve as a basis to ignore
the applicability of this section to the case before us. If we ever
change the rule for all such situations, we would need to decide at
which stage in the process an employer should be permitted to conduct a
new recruitment after rejecting a qualified U.S. worker: after the NOF,
after the Final Determination, after a decision by a panel of this
Board, as late as a further appeal?
The effect of the plurality's decision would be either to read
section 656.24(b)(2)(ii) out of the regulations, or to use it only in
one direction. If the latter, we believe it is unfair to U.S. workers
to allow an employer to use section 656.24(b)(2)(ii) to reject a U.S.
worker who meets its requirements because the worker nevertheless cannot
perform the job (a principle we agree with where all reasonable
requirements were stated) while not allowing the symmetrical use of this
section by a CO to show that a U.S. worker who does not meet the
requirements is nevertheless qualified to perform the job. See
Ashbrook-Simon-Hartley v. McLaughlin, 863 F.2d 410 (5th Cir. 1989);
Houston Music Institute, Inc., supra.; See also Quality Inn, 89-INA-273
(May 23, 1990). Contra Chatwal Hotels and Restaurants, Inc., 88-INA-68,
slip. op. at 4n.4 (Feb. 20, 1990) (Panel states Ashbrook principle
valid only in favor of an employer allowed to invoke section
656.24(b)(2)(ii) to reject a U.S. applicant who meets the requirements
but cannot do the job).
Notwithstanding our disagreement with the plurality's view of the
applicable law, we concur in the result. The CO's NOF simplistically
concludes that the two rejected U.S. applicants in question are
qualified because each of them has a combination of education, training
and experience which falls within the broad range of the four to ten
year standard for proficiency in the job set forth in the Dictionary of
Occupational Titles (AF 25). This does not show why the qualifications
of the applicants specifically compensate for the lack of the
unchallenged MBA requirement.
The CO's brief on appeal contains a more thorough analysis of the
experience and education of the two U.S. applicants. The brief also
asserts (at 19) that the foreign master's degree earned by the Alien is
the equivalent of a Master's in Accounting, not an MBA. Presumably,
this would be inconsistent with the Employer's requirement of an MBA and
its distinction between an MBA and U.S. applicant Haqiqi's Master's
degree in economics and finance, and also not fully consistent with its
argument on why U.S. applicant Rosenfeld's 18 credits towards an MBA
are insufficient. The CO's brief comes too late. Her showing under
section 656.24(b)(2)(ii) must be disclosed while the case is before her
so the Employer can react and respond. Moreover, the CO cannot for the
first time on appeal argue that the Alien himself does not possess the
stated requirements. If the CO had included this alleged violation of
the prohibition against giving the Alien preferential treatment over
U.S. applicants as a proposed finding in her NOF, see 20 CFR section
656.21(b)(6), the Employer would have had an opportunity to address it
in its rebuttal.
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1/ 20 CFR section 656.24(b)(2)(ii) provides that:
The Certifying Officer shall consider a U.S.
worker able and qualified for the job opportunity
if the worker, by education, training, experience,
or a combination thereof, is able to perform in the
normally accepted manner the duties involved in the
occupation as customarily performed by other U.S.
workers similarly employed . . .
When the plurality decision is combined with Judge Romano's
separate concurrence, a five-judge majority of this Board would not
permit the CO to apply this section in the circumstances of this case.
Bronx Medical and Dental Clinic - 90-INA-479
J. ROMANO, concurring separately.
I agree with the result reached in this case, but unlike my
colleagues, would not ". . . leave for another day . . ." our
setting of the appropriate outer reach of section 656.24(b)(2)(ii).
There presently exists much too much inconsistency and disparity in this
Board's treatment of the proper use of this section by CO. See e.g.
Adry-Mart, Inc., 88-INA-243 (en banc, February 1, 1989); Chatwal Hotels
and Restaurants, Inc., 88-INA-68 (February 20, 1990); Houston Music
Institute, Inc., 90-INA-450 (February 21, 1991); Shakti Engineering &
Design Group, 89-INA-347 (November 2, 1990); Fritz Garage, 88-INA-98 (en
banc, August 17, 1988); External Resources International, Inc.,
90-INA-32 (April 19, 1991). It is time we put an end to such, in
fairness to that section of the public and bar interested in the
invocation of this regulation.
I would squarely hold that section 656.24(b)(2)(ii) does not
provide a separate standard for judging the lawfulness of an employer's
rejection of a U.S. applicant who does not meet all non-experience
requirements which are found appropriately demanded within the context
of section 656.21(b)(2). Rather, in such in which no experience is
required by the employer in the cases job offered or in a related
occupation, a rejected applicant who does not meet those requirements
cannot be determined by the certifying officer as otherwise qualified
under section 656.24(b)(2)(ii). Such rejection is lawful, and the
certifying officer's determination that the applicant, is, nevertheless,
qualified for the job by reason of his ability to perform the job under
section 656.24(b)(2)(ii) may not be invoked to deny certification.
Moreover, where a certifying officer concedes that an applicant
lacks experience in the job offered, or in a related occupation (and
such experience is required and unchallenged), any assertion that
656.24(b)(2)(ii) qualifies the applicant for the job, is misplaced and
without merit. A CO may challenge under 656.21(b)(2) any experience
requirement, but may not, after the recruitment process, invoke
656.24(b)(2)(ii) as a means to qualify the applicant by substituting,
for example, a certain educational achievement, for the required
experience.
Section 656.24(b)(2)(ii) is properly invocable, in my view, only
where the work experience required is acknowledged, but the question
whether such particular experience renders the U.S. applicant "able" to
perform the offered position's job duties in a "normally accepted
manner", is raised.
In the Matter of Bronx Medical and Dental Clinic, 90-INA-479,
Judge David A. CLARKE, Jr., dissenting:
I do not agree with the decisions of my colleagues to reverse the
denial of labor certification.
Judge De Gregorio, joined by Judges Litt, Williams and Glennon,
views it as untenable that 20 CFR section 656.24(b)(2)(ii) should be
applied to the employer at the recruitment stage of the labor
certification process. 1/ However, since it was the employer who
conducted the recruitment procedure, it was incumbent on the employer to
evaluate each U.S. applicant on the basis of the applicant's
experience, education and training to determine if he or she could
perform the job in a normally accepted manner. This Board has held that
where a U.S. applicant's resume shows such a broad range of experience,
education and training that it raises a reasonable possibility that the
applicant is qualified, although the resume does not expressly state
that he or she meets all the job requirements, an employer bears the
burden of further investigating the applicant's credentials. Gorchev v.
Gorchev Graphic Design, 89-INA-118 (Nov. 29, 1990) (en banc)
Therefore, when the employer rejected apparently qualified
applicants, the employer must provide convincing justification to
support the rejections.
In addition, the plurality would limit the CO's authority to
challenge certification on the basis of a violation of section
656.21(b)(7) specified in the Notice of Findings (NOF) until after the
CO challenged the job requirements as restrictive or otherwise
inconsistent with the Act and regulations or challenged the employer's
recruitment report. 2/
In this case, the CO notified employer in the NOF, which is
normally the CO's first notification to employer of certification
problems, that employer had failed to document job related reasons for
rejecting three of the job applicants. 3/ I do not know how the CO
could have notified employer of other so called preliminary
certification problems before issuing the NOF. Perhaps the plurality
are suggesting that a special communication should have issued from the
CO to the employer before issuance of the NOF or that the violation of
section 656.21(b)(7) cannot be first on a list of certification problems
identified in the NOF.
The CO in this case did not challenge the Masters of Business
Administration degree requirement because it appeared to be reasonable.
However, when it was learned that there were U.S. workers with
Bachelors and/or Masters degrees and training and experience who
appeared to be able to perform the duties of the offered job in a normal
manner, the CO acted properly in denying certification of the alien on
the basis of a violation of section 656.21(b)(7).
The majority are reversing the denial of labor certification on the
basis of a perceived procedural error by the CO which they view as
unfair to the employer. However, in so doing, they are penalizing U.S.
workers, the very people the Act was intended to protect.
U.S. workers should not suffer loss of employment to aliens
because of CO error, real or perceived. My colleagues are balancing
equities in favor of the employer and alien and this is contrary to the
stated intent of the Act. Section 212(a)(14) of the Act was enacted to
exclude aliens competing for jobs American workers could fill and to
"protect the American labor market from an influx of both skilled and
unskilled foreign labor." Cheung v. District Director, INS, 641 F2d
666, 669 (9th Cir. 1981); Wang v. INS, 602 F2d 211, 213 (9th Cir.
1979) To achieve this Congressional purpose, the regulations set forth a
number of provisions intended to give statutory preference to U.S.
workers, not aliens.
Alien labor certification is a very serious matter and each case
should be decided on its merits, in accordance with the Act and
regulations. In no case should an alien be granted permanent work
status in this country on the basis of a procedural error in the
certification process.
Judge Brenner, joined by Judges Guill and Groner, also disagree
with the reasoning of the plurality, but concur with the result. They
base their concurrence on a determination that the CO failed to
adequately explain in the NOF " . . . why the qualifications of the
applicants specifically compensate for the lack of the unchallenged MBA
requirement." (p.3) In so doing, they have shifted the burden of proof
to the CO which has the effect of improperly shifting the burden of
proof to U.S. workers. This was never intended by Congress and my
colleagues have erred by shifting the burden to the CO. See: U.S. Rep.
No. 748, 89th Cong., 1st Sess., reprinted in 1965 U.S. Code Cong. &
Ad. News 3333-3334. The NOF contained correct legal citations and
provided clear and understandable reasons for the proposed denial of
certification. It appears adequate in every respect and the burden was
on the Employer to rebut those reasons.
Moreover, Judges Brenner, Groner and Guill did not make a
determination that the rejected applicants are not qualified for the
job. In fact, they cite facts which suggest that they are qualified and
that the Alien may not be qualified; a further indication that the
denial of certification should be affirmed.
As to Judge Romano's concurring opinion, I leave its interpretation
for the reader to ponder.
For the reasons stated herein, I would affirm the denial of labor
certification.
--------
1/ Section 656.24(b)(2)(ii) provides, in relevant part:
The Certifying Officer shall consider a U.S. worker
able and qualified for the job opportunity if the
worker, by education, training, experience, or a
combination thereof, is able to perform in the
normally accepted manner the duties involved in the
occupation as customarily performed by other U.S.
workers similarly employed.
2/ Section 656.21(b)(7) states that:
If U.S. workers have applied for the job opportunity,
the employer shall document that they were rejected
solely for lawful job-related reasons.
3/ The CO subsequently determined in the Final Determination that
two of the applicants met DOL standards for education, training and/or
experience and were qualified for the job.
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