UNITED STATES DEPARTMENT OF LABOR
BOARD OF ALIEN LABOR CERTIFICATION APPEALS
Judges' Benchbook
Second Edition - May 1992


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CHAPTER 11

EVIDENCE

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TABLE OF CONTENTS

I. What constitutes documentation

II. Document requested by CO

III. Admissibility of hearsay, generally

IV. Weighing of evidence, generally

V. Treatment of particular evidence

I. What constitutes documentation

A. Where regulation specifies form

If a labor certification regulation requires information to be in a specific form, the employer must furnish that information in that form.

  • Gencorp , 87-INA-659 (Jan. 13, 1988) ( en banc ) (citing as an example of a regulation requiring a specific form of documentation, § 656.21(a)(3)(iii), which requires the alien's experience to be documented by statements from past and present employers).

B. Where regulation does not specify form

1. Acceptability of written statements

Where a labor certification regulation does not require information to be in a specific form, and the CO has not made a request for a reasonably obtainable and relevant document,

  • See infra Division II.

written assertions that are reasonably specific and indicate their sources or bases are to be considered documentation.

  • Gencorp , 87-INA-659 (Jan. 13, 1988) ( en banc ).

For example, if a CO challenges the business necessity of a requirement, but does not request any specific type of documentation, an employer's statements may establish business necessity.

  • Greg Kare , 89-INA-7 (Dec. 18, 1989).

2. Weight and sufficiency

The CO is not required to accept written statements provided in lieu of independent documentation as credible or true, but must consider them and give them the weight they rationally deserve. Gencorp , 87-INA-659 (Jan. 13, 1988) ( en banc ).

II. Document requested by CO

A. Authority of CO to request document

If the CO requests a document which has a direct bearing on the resolution of an issue and is obtainable by reasonable efforts, the employer must produce it. Gencorp , 87-INA-659 (Jan. 13, 1988) ( en banc ). For example, an employer must provide documents reasonably requested by the CO relating to:

the alien's qualifications,

Chapter 1, II, B, 1, b, ii (Actual Minimum Requirements) and Chapter 4, II, D (Alien's Qualifications for the Job).

the employment relationship between the alien and the employer,

Chapter 9, II, A, 2 and III, C (Definition of Employment) and Chapter 8, III (Definition of Employer).

the rejection of U.S. applicants, or

Chapter 23 (Rejection of U.S. Workers).

or the sufficiency of funds to pay the alien's salary.

Chapter 30, II, A (Sufficiency of Funds to Pay Salary).

B. Consequences of failure to produce document

An employer's failure to produce a relevant and reasonably obtainable document requested by the CO is ground for the denial of certification, STLO Corporation , 90-INA-7 (Sept. 9, 1991); Oconee Center Mental Retardation Services , 88-INA-40 (July 5, 1988), especially where the employer does not justify its failure. Vernon Taylor , 89-INA-258 (Mar. 12, 1991). For example:

  • In Bakst International , 89-INA-265 (Mar. 14, 1991), and Personnel Sciences, Inc. , 90-INA-43 (Dec. 12, 1990), the employers required applicants to have knowledge of specific computer hardware and software, the COs requested copies of consultancy contracts showing that the employers' clients needed such expertise, and the employers failed to provide the requested information.

  • In Rainbow Imports, Inc. , 88-INA-289 (Oct. 27, 1988), the CO requested a list of the employer's officer's and their relationships to the alien to demonstrate the existence of a bona fide job opportunity. The employer re- fused to supply such information and instead provided only a letter from its corporate counsel asserting that neither the alien nor any relative of the alien were current stockholders of the corporation.

C. Documents not easily obtainable

The denial of certification is not appropriate if the CO requests documentation which is difficult to obtain and the employer submits other evidence sufficient to rebut the CO's challenge. Engineering Measurement Co. , 90-INA-171 (Mar. 29, 1991); Raul Garcia, M.D. , 89-INA-211 (Feb. 4, 1991) (employer established business necessity of foreign language requirement).

D. Ostensible compliance with request

If the CO requests certain documentation, and the employer ostensibly complies with the request, the CO must state his or her reasons if the documentation is found to be insufficient. Fried Rice King Chinese Restaurant , 87-INA-518 (Feb. 7, 1989).

III. Admissibility of hearsay, generally

The rules of evidence regarding the admissibility of hearsay statements do not apply in the administrative context. Therefore, in administrative adjudication an inquiry does not turn on the hearsay nature of the evidence per se , but on its probative value, its reliability, and the fairness of the use of such evidence. Cathay Carpet Mills, Inc. v. Secretary of Labor , No. 87-3881-RMT (GHK) (C.D. Ca. 1988) (citing Calhoun v. Bailar , 626 F.2d 145 (9th Cir. 1980), cert . denied , 452 U.S. 906 (1981)).

The admissibility of hearsay evidence in the administrative context turns on:

  1. the independence or possible bias of the declarant;

  2. the type of hearsay material submitted;

  3. whether the statements are contradicted by direct testimony;

  4. whether the statements are signed and sworn as opposed to anonymous, oral or unsworn;

  5. whether the declarant is available to testify;

  6. the credibility of the declarant if called as a witness or of the witness testifying to the hearsay; and

  7. whether the hearsay is corroborated.

Id .

In a labor certification appeal before the Board, most appeals are decided based on the existing record without an oral evidentiary hearing. Thus, some of the Calhoun factors are not applicable to Board review. See Cathay Carpet Mills, Inc. , 87-INA-161 (Dec. 7, 1988) ( en banc ).

IV. Weighing of evidence, generally

A. Unsupported assertions

Although a written assertion constitutes documentation that must be considered under Gencorp , 87-INA-659 (Jan. 13, 1988) ( en banc ), a bare assertion without supporting reasoning or evidence is generally insufficient to carry an employer's burden of proof. For example:

  • The argument that a bona fide job opening exists for an elementary school science teacher, simply because there is a teacher shortage and the employer is an elementary school, is unpersuasive. Our Lady of Guadalupe School , 88-INA-313 (June 2, 1989).

  • An employer's bare assertion ( i.e. , an asser- tion unsupported by reasons or evidence) that a U.S. applicant is not interested in a job is insufficient to prove rejection for a lawful, job-related reason. A.V. Restaurant , 88-INA-330 (Nov. 22, 1988).

  • But see Metrodata Services , 88-INA-32 (Mar. 13, 1989), holding that an employer's statement that a U.S. applicant failed to schedule an interview and was rejected as unavailable constitutes sufficient documentation of a lawful, job-related reason for rejection. According to the panel, the CO should have attempted to contact the U.S. worker to obtain any contrary information regarding the rejection.

  • Unsupported conclusions ( i.e. , statements without explanation or factual support) are insufficient to demonstrate that certain job requirements are normal for a position or supported by a business necessity. Inter-World Immigration Service , 88-INA-490 (Sept. 1, 1989), citing Tri-P's Corp. , 88-INA-686 (Feb. 17, 1989).

  • An employer's undocumented assertion of statements by a third party is insufficient to challenge a prevailing wage determination. Carl Joecks, Inc. , 90-INA-406 (Jan. 16, 1992).

B. Statements not capable of support by independent documentation

Where a fact lends itself to proof by independent documentation, the weight and sufficiency of a party's case is bolstered by such documentation. Where, however, a fact is not capable of proof by independent documentation, the thing is provable only by the testimony or statements of the persons involved. Thus, the weight of statements not capable of support by independent documentation depends largely on the credibility of the person making the statement. The credibility of speaker, in turn, depends on:

  • the surrounding facts and circumstances,

  • the source of the knowledge of the speaker,

  • the interest of the speaker,

  • the good or bad intentions of the speaker,

  • the manner of testimony by the speaker, and

  • other indices of honesty or credibility.

Mr. and Mrs. Jeffrey Hines , 88-INA-510 (Apr. 9, 1990).

C. Contemporaneous documentation

Contemporaneous documentation may be entitled to more weight than statements made long after the events in question. See , e.g. , La Salsa, Inc. , 87-INA-580 (Aug. 29, 1988) ( en banc ) (CO improperly credited U.S. worker's four-word questionnaire response, prepared five months after the events in question, over the employer's contemporaneous documentary evidence that the U.S. worker could not be contacted).

D. Motivations of source

1. Inappropriateness of preconceptions

The probative value of evidence is judged based on its own strengths and weaknesses without preconceptions based on its source. Therefore, although an employer is an interested party in a labor certification case, a CO may not assume that the weight of the evidence is generally afforded to a U.S. applicant whose statements contradict those of the employer. Dove Homes, Inc. , 87-INA-680 (May 25, 1988) ( en banc ); Mr. and rs. Jeffrey Hines , 88-INA-510 (Apr. 9, 1990); Annette Gibson , 88-INA-396 (June 20, 1989); Screen Actors Guild, Inc. , 87-INA-656 (Mar. 9, 1988). Further, it must be observed that a rejected U.S. applicant may harbor resentment toward the employer. Hines , supra .

2. Allegation of fraud or willful misconduct

The Board does not operate under a preconception that employers routinely engage in fraud or other willful misconduct in attempting to obtain labor certification. A CO who finds that evidence submitted by an employer is not genuine, must expressly state that finding and adequately support it with probative evidence. Absent such evidence, it is irresponsible to allege, whether directly or by implication, that an employer is engaged in fraudulent conduct in attempting to obtain certification. Yedico International, Inc. , 87-INA-470 (Sept. 30, 1988) ( en banc ).

E. Assessment of employer's evidence where NOF contains broad challenge

Where the CO chose in the NOF to make a broad challenge to the requirement of a Master's Degree as unduly restrictive, the employer's rebuttal would so too, on balance, be measured broadly. Agora Realty, Inc. , 89-INA-3 (Oct. 16, 1989).

F. Assessment of employer's evidence where NOF contains narrow challenge

Where the CO leads the employer to believe that she is making a challenge on narrow grounds, the Board will not undertake a review of all possible grounds for the challenge.

  • Crown USA, Inc. , 90-INA-113 (Sept. 23, 1991), holding that the CO does not preserve the entire question of ownership and control merely by noting the alien's position in the sponsoring company and inquiring into his or her investment status.

  • See also Chapter 3, I, E (Alien Ownership or Control) dealing in more detail with the question of the scope of review of ownership and control issues raised by the CO.

Similarly, the Board will not consider issues that might have been raised by the CO but were not.

  • See Chapter 26, D (Scope of Board Authority, Jurisdiction and Review).

V. Treatment of particular evidence

A. Company policy

Company policy regarding hiring practices does not take precedence over Department of Labor regulations regarding alien labor certification. If an employer wishes to obtain labor certification for an alien, it must modify its policies to conform with the regulations. Security Life of Denver , 88-INA-246 (Aug. 22, 1989).

B. Confidential records

An employer has no right of confidentiality as to its corporate officers. Thus, if a CO requests a list of corporate officers, the employer must produce it. Rainbow Imports, Inc. , 88-INA-289 (Oct. 27, 1988).

C. Findings of CO in similar case

The Board is not bound by findings of a CO in a similar case. Tedmar's Oak Factory , 89-INA-62 (Feb. 26, 1990).

D. Questionnaire responses

1. Admissibility

In Cathay Carpet Mills, Inc. v. Secretary of Labor , No. 87-3881-RMT (GHK) (C.D. Ca. 1988), rev'g , Cathay Carpet Mills, Inc. , 87-INA-161 (March 20, 1987) (pre-BALCA), a district court determined whether questionnaire responses were admissible in a labor certification case by applying the criteria set forth in Calhoun v. Bailar , 626 F.2d 145 (9th Cir. 1980), cert . denied , 452 U.S. 906 (1981) ( see supra Division III, A).

In Cathay Carpet Mills , a CO used questionnaires filled out by U.S. applicants to find contradictions in the employer's recruitment report. The district court held that the questionnaires were not admissible hearsay because:

  1. the questionnaires exhibited potential bias because one applicant questioned the employer's good faith and speculated as to an ulterior motive and both applicants indicated that they would have taken the job if it had been offered;

  2. the questionnaires lacked indicia of reliability because they were analogous to reports prepared in anticipation of litigation;

  3. the questionnaires were unsworn and one was unsigned;

  4. the questionnaires did not indicate that the declarants were unavailable to testify; and

  5. the questionnaires were not corroborated, as to the material aspects of the hearsay statements, by any evidence in the record.

The district court emphasized that when hearsay is central to an agency's case, questions of basic fairness and reliability are more serious. Cathay Carpet Mills, Inc. v. Secretary of Labor , No. 87-3881-RMT (GHK) (C.D. Ca. 1988), rev'g , Cathay Carpet Mills, Inc. , 87-INA-161 (Mar. 20, 1987) (pre-BALCA).

On remand from the district court, the Board applied the Calhoun factors and determined that the unsworn questionnaire responses had little probative value and that it would be fundamentally unfair under the circumstances of the case to use them against the employer. The Board found that the employer's detailed and partly corroborated account of contacts with the U.S. applicants was persuasive. Cathay Carpet Mills, Inc. , 87-INA-161 (Dec. 7, 1988) ( en banc ).

2. Authentication

A questionnaire response may be authenticated by providing the address to which the questionnaire is mailed, the signature of the addressee, and, if appropriate, references to the applicant's interview. Cathay Carpet Mills, Inc. , 87-INA-161 (Dec. 7, 1988) ( en banc ).

3. Response places burden on employer to substantiate its assertion

Faced with a statement that the employer rejected the applicant as unavailable and with a questionnaire indicating that the applicant was not contacted by the employer, the CO properly placed the burden on the employer to substantiate its assertion that the applicant was initially unavailable. Annette Gibson , 88-INA-396 (June 20, 1989) (admissibility of the response was not addressed).

4. Probative weight; illustrative cases

In La Salsa, Inc. , 87-INA-580 (Aug. 29, 1988) ( en banc ), the CO improperly credited a U.S. worker's four-word questionnaire response, prepared five months after the events in question, over employer's contemporaneous documentary evidence that the U.S. worker could not be contacted.

In Immuno Biological Laboratories , 90-INA-22 (July 9, 1991), the CO erred in concluding that U.S. applicants were qualified for the job of Research Microbiologist based solely upon a questionnaire wherein the applicants claimed to have experience in a related occupation.

See also Cathay Carpet Mills, Inc. , , discussed supra Division V, D, 1.

E. Statements of counsel

Assertions by an employer's attorney that are not supported by underlying statements by a person with knowledge of the facts, do not constitute evidence,

  • Moda Linea, Inc. , 90-INA-424 (Dec. 11, 1991); Mr. and Mrs. Elias Ruiz , 90-INA-425 (Dec. 9, 1991); D & J Finishing, Inc. , 90-INA-446 (Nov. 4, 1991) (decision and order on reconsideration); Personnel Services, Inc. , 90-INA-43 (Dec. 12, 1990); DeSoto, Inc. , 89-INA-165 (June 8, 1990); Dr. Sayedur Rahman , 88-INA-112 (Mar. 20, 1990).

  • See also Yaron Development Co., Inc. , 89-INA-178 (Apr. 19, 1991) ( en banc ) (a factual theory presented by counsel in a brief cannot serve as evidence of material facts).

  • See also Hupp Electric Motors, Inc. , 90-INA-478 (Jan. 30, 1992) (assertions by legal assistant to employer's counsel).

except that an attorney may be competent to testify about matters of which he has first-hand knowledge.

  • Modular Container Systems, Inc. , 89-INA-228 (July 16, 1991) ( en banc ).

Should an attorney's testimony become necessary in an administrative proceeding, the ethical dilemma of acting both as witness and advocate arises, and the attorney may be required to withdraw as counsel. Generally, where evidence is obtainable from other sources, absent extraordinary circumstances or compelling reasons, an attorney representing a litigant should not act as a witness.

  • Modular Container Systems , supra .

Statements of counsel or a lay representative must be considered by the CO to the extent they constitute argument. Fernando Jewelry Co. , 91-INA-6 (Apr. 30, 1991) (citing § 656.25(e)(1)).

F. Technical matters

Where an employer's business involves a technically complex field, the labor certification process could be open to abuse by an employer who obscures actual job requirements in jargon and technical language. This heightens the possibility that the job is tailored to the alien's qualifications. Consequently, the employer's burden of proof may be more difficult to meet since the employer must present its case in a manner that can be understood by the reviewing official. In Bakst International , 89-INA-265 (Mar. 14, 1991), a computer consultancy services firm sought to employ a Systems Analyst with knowledge of a variety of computer hardware and software systems. The panel remanded the case because the employer failed to explain, in a manner understandable to non-experts, why the experience and knowledge required was customary in the computer industry.

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