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 another worker.
(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 offer.
(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.

                         Follow @ilwcom

Share this page   |   Bookmark this page

The leading immigration law publisher - over 50000 pages of free information!
© Copyright 1995- American Immigration LLC, ILW.COM