ACTUAL MINIMUM REQUIREMENTS/
PRIOR HIRING PRACTICES/FEASIBILITY OF TRAINING
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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
Purpose of regulation
Conflicting interpretations of the
Proof that alien was qualified when
Experience with different
- 1. Experience with different employer
Employer bears a heavy burden of
Procedural and evidentiary
Relationship between "actual
"unduly restrictive requirements"
Requirement of pre-employment
Showing that more stringent
requirement is now
Section 656.21(b)(5) provides:
- The employer shall document that its requirements for the job opportunity, as described, represent the employer's actual minimum requirements for the job opportunity, and the employer has not hired workers with less training or experience for jobs similar to that involved in the job opportunity or that it is not feasible to hire workers with less training or experience than that required by the employer's job offer.
As to the requirement that the Employer's minimum requirements be stated in the advertisement, see Chapter 22, III, C (Recruitment Efforts). As to the unlawful rejection of a U.S. applicant based on an unstated requirement, see Chapter 23, IV, T (Rejection of U.S. Workers).
Section 656.21(b)(5) addresses the situation of an employer
requiring more stringent qualifications of a U.S. worker than it
requires of the alien: the employer is not allowed to treat the
alien more favorably than it would a U.S. worker.
d/b/a Bayside Motor Inn
, 89-INA-105 (Feb. 14, 1990).
As interpreted in most Board decisions, § 656.21(b)(5) requires an employer to document either:
the requirements it specifies
for a job opportunity are its actual minimum
the employer has not
hired workers with less training or experience for jobs
similar to the one offered
- (b) that it is not feasible to hire workers with less training or experience than that required by the job offer.
( see infra Divisions II and III). This interpretation stresses the placement of the two "thats." It links the concept of actual minimum requirements with the prior hiring practice of the employer.
An alternative interpretation is that the regulation requires an employer to document
(a) that the requirements it specifies for a job
opportunity are its actual minimum requirements,
(b) the employer has not hired workers with less
training or experience for jobs similar to the one
- that it is not feasible to hire workers with less training or experience than that required by the job offer.
This interpretation stresses the placement of the comma after the phrase "actual minimum requirements." It makes actual minimum requirements and prior hiring practices separate elements that each must be documented. This broader interpretation provides the CO with an alternative to "unduly restrictive requirements" ( see Chapter 32 (Unduly Restrictive Job Requirements)) to question whether a requirement is appropriate to a job ( see infra Division IV).
Under the first prong of § 656.21(b)(5), an employer must demonstrate that the requirements it specifies for the job are its actual minimum requirements and that it has not hired the alien or other workers with less training or experience for jobs similar to the one offered.
An employer violates § 656.21(b)(5) if it hired the
alien with lower qualifications than it is now requiring and has
not documented that it is now not feasible to hire a U.S. worker
without that training or experience.
, 90-INA-480 (Jan. 7, 1992);
, 90-INA-184 (Dec. 19, 1991);
90-INA-190 (Dec. 19, 1991);
Rosiello Dental Laboratory
88-INA-104 (Dec. 22, 1988);
, 87-INA-540 (Nov.
- An employer must show that it has not previously hired personnel for the position who do not possess the requirements specified in the labor certification application. Texas State Technical Institute , 89-INA-207 (Apr. 17, 1990). In Texas State the employer, a technical school, admitted in rebuttal that it had hired an instructor who possessed only an Associates degree; ergo the employer did not specify the actual minimum requirements when it called for applicants to hold a M.S. or B.S. with additional experience. To the same effect, see Construction Quality Consultants , 90-INA-517 (Jan. 17, 1992).
If it appears that the alien gained qualifying experience or training with the employer, that employer may avoid the proscriptions of § 656.21(b)(6) by proving that the alien was qualified when hired for the position as the result of either experience gained with a different employer ( see infra Division II, B, 1), or experience gained with the same employer but in a different position ( see infra Division II, B, 2).
If the employer demonstrates that the alien qualifies for the position based solely on her experience gained with another entity, but the alien also has experience with the employer, the experience with the employer does not violate § 656.21(b)(6). See William Lawrence Camps, Inc. , 90-INA-248 (June 24, 1991).
In order to prove that the alien gained her qualifying
experience with a different employer, the employer must
demonstrate that its ownership and control are separate and
distinct from the company where the alien gained her qualifying
Salad Bowl Restaurant t/a Ayhan Brothers Food,
, 90-INA-200 (May 23, 1991). Even if
the companies are not owned or controlled by the same individuals, the employer may have to show a "distinct operational independence" between the two entities. Obro Ltd. , 90-INA-51 (Feb. 21, 1991) (employer may not play "musical employees" to bypass labor certification requirements).
To determine whether the alien's experience was gained with the same or a different employer, the circumstances of each case must be examined. The fundamental question is whether the employer is circumventing the fair testing of the U.S. labor market by shifting an alien from employment with one entity to employment with another, thereby providing the alien with the requisite training and experience without providing the same opportunity to U.S. workers. See Inmos Corp. , 88-INA-326 (June 1, 1990) ( en ban c) (alien shifted from foreign entity to related American entity).
The entity with which the alien gained his qualifying experience may be considered to be the same employer where it:
is the employer's parent corporation,
- Where all of an alien's qualifying experience is gained while working for the parent corporation of the employer, his employment by the subsidiary employer violates the first prong of § 656.21(b)(6). Inmos Corp. , 88-INA-326 (June 1, 1990) ( en banc ).
is owned by some or all of the same parties who own the
- Where three of the four shareholders of a petitioning employer are the only shareholders of an enterprise where the alien gained her qualifying experience, the two entities are considered to be the same employer. Salad Bowl Restaurant t/a Ayhan Brothers Food, Inc. , 90-INA-200 (May 23, 1991).
or has a pattern of exchanging employees with the
- Where the petitioning employer and the employer providing qualifying experience to the alien were separate entities, but the petitioning employer failed to prove that they had "distinct operational independence," the alien apparently gained her qualifying experience with the same employer. Specifically, the employer appeared to play "musical employees" with two other corporations. Obro Ltd. , 90-INA-51 (Feb. 21, 1991) (matter remanded because of vague instructions by the CO to the employer).
The CO must give the petitioning employer adequate notice that it appears to be related to a prior employer of the alien, so the petitioning employer will have an opportunity to rebut. See Chapter 17 (Notice of Findings), regarding CO's obligation to provide adequate notice.
, 88-INA-245 (Aug. 30, 1988), the
CO did not give the employer adequate notice that an
American entity and a foreign entity appeared to be the same
- A CO's assertion that two companies have engaged in joint ventures is not adequate notice that the companies might be considered to be the same employer. Haden, Inc. , 88-INA-199 (July 7, 1988).
Similarly, where the CO provides vague directions to the employer regarding the means to establish that companies suspected of being related have distinct operational independence, the case may be remanded for issuance of a new NOF. Obro Ltd. , 90-INA-51 (Feb. 21, 1991).
The employer must provide directly relevant and reasonably obtainable documentation that is requested by the CO. See discussion of Gencorp , 87-INA-659 (Jan. 13, 1988) ( en ban c) in Chapter 11, II (Evidence).
Where the employer failed to respond to the CO's
inquiry as to where the alien had obtained his qualifying
experience, certification was denied. The CO requested the
information because the alien's experience with the
sponsoring employer could not be used as qualifying
experience and because the ETA 750 B indicated that the
alien's experience with an employer related to the
sponsoring employer would not qualify him for the job.
, 90-INA-510 (Jan. 31, 1992) (panel
implied that CO's request for information was reasonable
under the circumstances).
- In Il Nido Ristorante , 90-INA-199 (May 23, 1991), the CO requested the identity of stockholders and an explanation of payroll payments and personnel decisions. The employer's provision of only balance sheets was unacceptable.
Bare assertions and scanty documentation are not enough to establish that the employers are different, especially where the CO requests specific documentary evidence. Il Nido Ristorante , 90-INA-199 (May 23, 1991). Labor certification may also be denied where, although it is uncontroverted that the alien worked for a different employer, it is not established that the experience gained with that employer was of the type now required by the petitioning employer. See Global Committee of Parliamentarians on Population and Development , 88-INA-209 (Mar. 12, 1990) (evidence did not establish that the had performed the wide range of comprehensive job duties now required by the employer in any prior employment); Hunter College of the City of New York , 88-INA-568 (Oct. 5, 1989) (alien's prior experience was not confirmed by the former employer); see also Chapter 4, II (Alien's Qualifications for the Job) regarding proof of the alien's qualifications generally, and Chapter 11, IV (Evidence), regarding weight of evidence.
Where, however, the record establishes that the alien had
the requisite experience prior to being hired by the employer,
the CO's denial of certification may be reversed and
Permanente Medical Group, Inc.
88-INA-377 (Aug. 21, 1989).
2. Experience in "sufficiently dissimilar" position
Under the first prong of § 656.21(b)(6), an employer
may not require U.S. applicants to have the same type of
experience that the alien acquired only while working for the
employer in the same job.
Central Harlem Group, Inc.
89-INA-284 (May 14, 1991);
Apartment Management Co.
88-INA-215 (Feb. 2, 1989). § 656.21(b)(6) only proscribes
training or experience in jobs "similar" to the job for
which labor certification is sought. An employer, therefore, may
argue that the alien gained his qualifying experience while
working in a "lesser" job. To prevail, an employer must
show that the "lesser" job is "sufficiently
dissimilar" to the job offered.
, 88-INA-259 (Feb. 28, 1989) (
a. Test for "sufficient dissimilarity"
The factors to consider when determining whether jobs are sufficiently dissimilar include, but are not limited to:
the relative job duties, supervisory responsibilities
and job requirements of the positions;
the positions of the jobs within the employer's
the employer's prior employment practices;
whether and by whom the "higher" position
has been filled previously;
whether the "higher" position is newly
the percentage of time spent performing each job duty
in each job; and
- the respective salaries or wages.
Delitizer Corp. of Newton , 88-INA-482 (May 9, 1990) ( en ban c); see also Houston Graduate School of Theology , 90-INA-491 (Dec. 6, 1991).
The likelihood that positions will be deemed sufficiently dissimilar increases with the number and degree of differences demonstrated by the employer. Some employers have proved that positions are sufficiently dissimilar by showing the following combinations of differences:
Different levels of skill, responsibility, experience
E & C Precision Fabricating, Inc.
89-INA-249 (Nov. 21, 1990),
(Feb. 15, 1991) (machine operator/machine operator
Different levels of skill, responsibility and
expertise and performance of different duties in different
locations using different instruments.
, 90-INA-91 (Aug. 2, 1991) (computer
technician/computer technician apprentice).
Different job duties and significantly different
Coleman's Certified Welding, Inc.
90-INA-442 (Feb. 28, 1991) (submerged arc welder/assistant
submerged arc welder).
- Different levels of skill, responsibility and supervisory authority. Conde, Inc. , 87-INA-598 (Dec. 11, 1987) (planner and planner/architect).
Employers failed to meet the Delitizer test in Rod Fjellman Drywall Contractors , 90-INA-104 (Aug. 2, 1991) (drywall finisher/drywall finisher apprentice); Valmet Automation , 90-INA-204 (June 26, 1991) (senior software engineer/senior systems engineer); Medici Marble and Granite, Inc. , 88-INA-219 (Oct. 29, 1990) (fabricator/assistant fabricator); L.A. Rubber Company , 89-INA-58 (Sept. 28, 1989) (fabricator/assistant fabricator).
A nominal difference between two positions is not enough to establish that they are sufficiently dissimilar. Yasufumi Enterprise Inc. , 89-INA-357 (Mar. 28, 1991) (difference in job titles alone does not establish sufficient dissimilarity).
Kurt Salmon Assoc.
, 87-INA-636 (Oct. 27, 1988)
c) (in an international management consulting
firm, the alien's former position as Senior Consultant to
domestic apparel industries was not sufficiently dissimilar
to the job offered of Senior Consultant to foreign nations
concerning apparel trade strategy).
- Iwasaki Images of America , 87-INA-656 (May 11, 1988) ("replica maker" indistinguishable from "custom drink and dessert replica maker").
If the "lesser" position and the petitioned position involve very similar job duties, an employer may seek to distinguish them on the ground that they involve different supervisory responsibilities. When the alien has worked as an assistant or helper to someone in the same job as the petitioned position, and performed very similar job duties, it may be crucial to the success of the labor certification application to show the difference in supervisory responsibilities.
- In Chilcote, Inc. , 90-INA-99 (Feb. 28, 1991) (lubeman/lubeman's helper) and Carrillo's Mexican Restaurant , 90-INA-98 (Feb. 28, 1991) (cook/assistant cook), one panel found that the employers did not show the positions to be sufficiently dissimilar, highlighting the absence of evidence that the petitioned positions involved any supervisory duties.
However, an employer will not prevail simply by asserting that two positions differ in terms of the relative supervisory duties.
- In Lee Gelfond Chocolate, Inc. , 90-INA-350 (Sept. 17, 1991), the only difference between the duties of candymaker and chocolate figurine quality control leadperson was an unspecified amount of training and supervisory duties, and the employer failed to specify what percentage of time was spent on supervisory duties. Accordingly, the panel found that the employer had not shown the positions to be sufficiently dissimilar.
An established hiring practice of requiring experience in the lesser job for the greater job may bear on whether the positions will be viewed as sufficiently dissimilar. See Eimco Processing Equipment Co. , 88-INA-216 (Aug. 4, 1989).
- In Duthie Electric Corp. , 89-INA-182 (Nov. 30, 1989), the employer demonstrated that generator mechanics are customarily hired with the same minimum requirements now being stated.
Frequently, the question of sufficient dissimilarity arises where the alien was a trainee for, or acted as an assistant to, the petitioned position. Where the alien was hired as a trainee for, or as an assistant to, the very job for which certification is sought, the employer's burden of establishing dissimilarity will be difficult to meet given the obvious relationship between the positions. Delaney's Restaurant , 88-INA-174 (Oct. 30, 1991). This is especially true where the alien's qualifying experience with the employer is in a trainee or assistant position. Id. ; see also Anderson-Mraz Design , 90-INA-142 (May 30, 1991) (employer required experience in the job offered, but did not include an alternative experience requirement).
- In Delaney's Restaurant , 88-INA-174 (Oct. 30, 1991), the only significant distinction between the positions of cook helper/second cook and cook established by the record was the additional job duty of cooking seafood and sauces as opposed to merely preparing those items for cooking. Given that the employer's job hierarchy strongly suggested that the alien was trained for the cook position, an opportunity denied to U.S. applicants, the mere distinction of cooking versus preparing foods did not establish sufficient dissimilarity to overcome the proscriptions of § 656.21(b)(6).
If a job offer requires prior experience in the same job, and the alien's only qualifying experience is with the employer, the employer will not prevail by arguing that the alien's qualifying experience was in a lesser position for purposes of § 656.21(b)(6) and greater position for purposes of satisfying the minimum requirements for the job. Anderson-Mraz Design , 90-INA-142 (May 30, 1991) (graphic design internship).
If the CO raises the issue of similarity and the employer fails to provide the requested rebuttal evidence, certification will be denied. See Delitizer Corp. of Newton , 91-INA-53 (July 2, 1991); Landor Associates , 90-INA-351 (Dec. 5, 1991); Delaney's Restaurant , 88-INA-174 (Oct. 30, 1991); Tesseract Corp. , 90-INA-285 (Oct. 24, 1991). See discussion of Gencorp , 87-INA-659 (Jan. 13, 1988) ( en ban c) in Chapter 11, II (Evidence).
The second prong of § 656.21(b)(6) operates as a savings clause: if the employer cannot demonstrate that the job requirements are the actual minimum ones or that it has not hired workers with less training and experience, then it can attempt to demonstrate that is not feasible to hire workers with less training or experience than that required by the job offer.
An employer must sufficiently document a change in circumstances to demonstrate infeasibility. See Rogue and Robelo Restaurant and Bar , 88-INA-148 (Mar. 1, 1989) ( en ban c). The employer's burden of establishing why it is not now feasible to offer the same favorable treatment to U.S. applicants has been characterized as heavy. 58th Street Restaurant Corp. , 90-INA-58 (Feb. 21, 1991); Fingers, Faces, and Toes , 90-INA-56 (Feb. 8, 1991).
An employer may attempt to prove the infeasibility of training by showing a change in economic circumstances; however, that is not the only means of demonstrating infeasibility. Rogue and Robelo Restaurant and Bar , 88-INA-148 (Mar. 1, 1989) ( en banc ).
- Only one employer has ever demonstrated the present infeasibility to train. In Avicom International , 90-INA-284 (July 31, 1991), the employer showed that a change in its corporate ownership and reduction in its workforce left the alien as the sole remaining employee with the knowledge and training required of an electronics engineer.
An increase in the volume of business or general growth and expansion, by itself, is insufficient to establish infeasibility. Unless an employer proves otherwise, increased training capability is presumed to accompany growth. See Super Seal Manufacturing Co. , 88-INA-417 (Apr. 12, 1989) ( en ban c); AEP Industries , 88-INA-415 (Apr. 4, 1989) ( en ban c); Anderson-Mraz Design , 90-INA-142 (May 30, 1991); Primex Plastics Corp. , 89-INA-283 (Apr. 8, 1991); Ramazzotti Landscaping, Inc. , 90-INA-78 (Feb. 22, 1991); 58th Street Restaurant Corp. , 90-INA-58 (Feb. 21, 1991); Able Labs , 90-INA-54 (Jan. 29, 1991); J.J. Cassone Bakery, Inc. , 89-INA-74 (Feb. 20, 1990); Laura's French Baking Co. , 89-INA-61 (Jan. 31, 1990); Laura's French Baking Co. , 89-INA-53 (Oct. 30, 1989); Pro-Torque, Ltd. , 88-INA-352 (June 27, 1989); L and I Color Labs , 89-INA-217 (June 13, 1990); G.C. Construction Corp. , 88-INA-20 (May 9, 1988).
Section 656.21(b)(6) requires an employer to document its assertion that its business has declined to the point where it is now financially unable to train a new worker. Jackson & Tull Engineers , 87-INA-547 (Nov. 24, 1987).
A bare statement of infeasibility to train is inadequate to establish that an employer cannot now hire workers with less experience and provide training. MMMATS, Inc. , 87-INA-540 (Nov. 24, 1987) ( en banc ); Coastal Printworks, Inc. , 90-INA-289 (Oct. 29, 1991); Valor Roofing , 90-INA-182 (July 30, 1991); Altra Filter, Inc. , 90-INA-15 (Dec. 7, 1990); BSN Industries, Inc. , 88-INA-53 (May 6, 1988).
Documentation must show more than just inefficiency. Admiral Gallery Restaurant , 88-INA-65 (May 31, 1989) ( en ban c); Coastal Printworks, Inc. , 90-INA-289 (Oct. 29, 1991); Carillon Mills, Inc. , 90-INA-17 (Dec. 19, 1990); Global Committee of Parliamentarians on Population and Development , 88-INA-209 (Mar. 12, 1990); Hoffman-LaRoche, Inc. , 88-INA-30 (July 21, 1988).
The present unavailability of the person who trained the alien may be a factor to consider, but it does not guarantee a finding of infeasibility. See Cynjoy Dress Corp. , 90-INA-189 (July 1, 1991); Ken Cal Maintenance Co. , 90-INA-224 (Mar. 27, 1991); Fingers, Faces, and Toes , 90-INA-56 (Feb. 8, 1991); Sid and Irene Ritman , 88-INA-86 (Feb. 8, 1990); Metal Cutting Corp. , 89-INA-90 (Jan. 8, 1990); California-Nevada Annual Conference of the United ethodist Church , 88-INA-364 (June 28, 1989). See also H. Stern Jewelers , 89-INA-89 (Jan. 19, 1990) (employer acknowledged that branch office, in which the job opportunity was available, was actively training workers for the position).
The present unavailability of U.S. applicants with the same qualifications as the alien does not demonstrate the infeasibility of training. Rosedale & Rosehill Cemetery , 90-INA-19 (Mar. 27, 1991).
The burden is not on the CO to offer evidence documenting
that the employer can offer the same training to U.S. workers. To
the contrary, the burden rests with the employer to document why
it is no longer feasible provide training that was provided to
California-Nevada Annual Conference of the United
, 88-INA-364 (June 28, 1989).
Statements by an employer's counsel, unsupported by statements by persons with personal knowledge of the facts, are not evidence. See Chapter 11, V, E (Evidence). Thus, general statements by employer's counsel as to infeasibility of training are not persuasive. Yasufumi Enterprise Inc. , 89-INA-357 (Mar. 28, 1991).
The questions of whether a job requirement represents the employer's actual minimum requirement and whether it is an unduly restrictive job requirement are similar. In most instances where the CO questions whether the job requirement is appropriate for the job the regulatory authority cited is § 656.21(b)(2), which governs unduly restrictive job requirements. See Chapter 32 (Unduly Restrictive Job Requirements). In a few instances, however, the CO did not raise, or failed to preserve, the § 656.21(b)(2) violation, and the question of the appropriateness of the job requirement has been analyzed under § 656.21(b)(6). See , e.g. , Loews Anatole Hotel , 89-INA-230 (Apr. 26, 1991) ( en ban c); Duval-Bibb Co. , 88-INA-280 (Apr. 19, 1989). Using § 656.21(b)(6) to challenge the appropriateness of the job requirement raises the problem of regulatory interpretation. Most Board decisions have linked actual minimum requirements with prior hiring practices of the employer ( see supra Division I, C), although this not always the approach. See , e.g. , Snowbird Development Co. , 87-INA-546 (Dec. 20, 1988) ( en banc ).
In several instances, the CO has cited the "actual minimum requirements" clause of § 656.21(b)(6) to deny labor certification where the employer set job requirements that are allegedly insufficiently stringent for the position, the implication being that the employer tailored the requirement to the alien's qualifications. See , e.g. , Snowbird Development Co. , 87-INA-546 (Dec. 20, 1988) ( en ban c). The Board, however, has indicated that it is not appropriate to cite § 656.21(b)(6) for failure to state actual minimum requirements where the job requirements are relevant to the job offered.
ERF Inc., d/b/a Bayside Motor Inn
89-INA-105 (Feb. 14, 1990), the CO found that the
requirement of two years as a bookkeeper/accountant was not
stringent enough for a job as hotel manager. The panel held
that § 656.21(b)(6) is intended to protect against
employers setting job requirements that are too stringent
for the position; however the § does not require an
employer to add to job requirements that are allegedly too
easy to meet. As long as the requirements are relevant to
the job offered, and the job would be offered to any
applicant meeting the requirements set forth, the employer
has satisfied § 656.21(b)(6).
- See also The Kroenke Group , 90-INA-318 (July 12, 1991) (CO found that requirements of one year of experience in accounting, a Master's degree in accounting, passage of a C.P.A. examination and at least two hours of credit in computer courses were not stringent enough for position of Senior Accountant).
Section 656.21(b)(6) is violated where the employer tests U.S. applicants for job skills but fails to demonstrate that the alien was tested when hired by the employer for the petitioned position. Sohnen Enterprises , 88-INA-582 (Oct. 4, 1989).
An employer can avoid being found in violation of § 656.21(b)(6) where it presents evidence establishing why a requirement is now necessary although it was previously not necessary. For example:
, 88-INA-280 (Apr. 19, 1989)
c), the employer required applicants for the
position of Management Analyst to have one year of training
or experience in "Psychology of Mind human relations
principles." The CO (apparently) found that the
employer had not stated its actual minimum requirements
because it had not previously required management analysts
to possess this training and had provided this training to
employees after they were hired. The Board, however, found
that the employer had stated its actual minimum requirements
because it had documented that provision of this training
had become too expensive and that the decision had been made
to make acquisition of this training the responsibility of
- See also Loews Anatole Hotel , 89-INA-230 (Apr. 26, 1991) ( en ban c) (employer submitted affidavits describing the additional experience and knowledge which a credit manager for one of its larger hotels must have in order to perform the more complex (in number and nature) duties required, in comparison to other smaller hotels).