USDOL/OALJ: BALCA Benchbook - Chapter 23, Divisions IV L to V

• 1. General lack of interest

• 2. Applicant's long-term career goals

• 1. Test designed to test experience

• 2. Applicant's refusal to answer questions regarding substantive knowledge of profession

• 3. Test not required of alien

• 4. Failure of record to support employer's conclusions that applicant's answers were inadequate

• 1. Lawfulness of subjective considerations for rejection of U.S. applicants

• 2. Illustrative cases; failure to document subjective ground for rejection

• 3. Even-handed subjective evaluation

• 1. Lawfulness of rejection based on unstated requirement

• 2. Illustrative cases; rejection based on previously unstated or unspecified requirements

• 3. Specialized aspect of job within scope of stated requirement

• 4. Rejection based on physical or character traits of the applicant
  • a. Lawfulness of rejection based on previously unstated requirement that the applicant not have certain physical or character traits

  • b. Requirement that ground not have been concocted to reject a qualified U.S. applicant

  • c. Personal practice of applicant

  • d. Applicant's poor character

  • e. New requirements may be scrutinized to determine whether they are unduly restrictive

• 5. Unstated requirement not relied on for rejection of applicant

• 1. Applicant's salary demands

• 2. Applicant's unwillingness to work overtime216

• 3. Applicant's unwillingness to commit to job for a specified period

• 4. Willingness to perform the job duties

• 5. Offering lower wage to U.S. applicants

V. Evidentiary matters

• A. Burden of proof

• B. Requirement that employer explain or document rejection
  • 1. In general

  • 2. Illustrative cases; inadequate explanation

• C. CO's request for specific documentation

• D. CO's obligation to address new reason for rejection

• E. CO's concession that job requirements are not excessive

L. Lack of interest

1. General lack of interest

An employer may lawfully reject an applicant who is qualified, but who is shown not to be interested in the job. New Consumer Products , 87-INA-706 (Oct. 18, 1988) ( en banc ); Komfort Industries, Inc. , 88-INA-402 (May 4, 1989). For example, where the employer submitted telephone bills, letters from applicants, and other evidence establishing that the applicants were contacted and either were not qualified or were not interested in the job, the CO's denial of certification was reversed. California Graduate Institute , 88-INA-395 (Apr. 19, 1990). See also Photo Network , 89-INA-304 (Apr. 8, 1991); A&E Clinical Veterinary Laboratory , 90-INA-28 (Jan. 2, 1991); Lakewood Manor Apartments , 88-INA-572 (Oct. 18, 1989).

See also Chapter 13, IV (Good Faith Efforts to Recruit) in regard to sufficiency of contact to establish lack of availability or lack of interest.

2. Applicant's long-term career goals

A mere suspicion that the job does not match a U.S. applicant's long-term career goals does not establish lawful grounds for rejecting that applicant. Indeed, an employer may not make unilateral assumptions concerning an applicant's interest in a particular field. The employer has an affirmative duty to investigate in these cases.

For example:

• An employer may not reject an applicant because it suspects he or she views the position as a steppingstone to other employment. Switch, U.S.A., Inc. , 88-INA-164 (Apr. 19, 1989) ( en banc ).

• In National Semiconductor , 88-INA-301 (Mar. 3, 1989) ( en banc ), it was held that qualified job applicants who have indicated that their overall career goals are in a different field than the job for which certification is being sought is an insufficient basis for an employer to conclude that these applicants are unavailable or unwilling to perform the job. As the CO noted, the employer never directly questioned the applicants regarding their interest in the job, and the fact that the workers applied for the job and requested interviews indicates that they were interested in it.

• An employer may not assume that a U.S. applicant is not available for or is disinterested in the position offered because career goals listed on the applicant's resume do not match the job offered. J.J. Appelbaum's Deli Co. , 90-INA-475 (Jan. 30, 1992).

• An employer may not reject an applicant for not possessing long-term interest in the position; mere suspicion of such shortcomings does not satisfy the employer's burden to document lawful job-related reasons for rejection. Hill-Fister Engineers, Inc. , 89-INA-114 (Feb. 6, 1990).

• An applicant's failure to commit himself to remain in a job for six months is an insufficient basis to conclude that the applicant is not interested in a permanent position. World Bazaar , 88-INA-54 (June 14, 1989).

On the other hand, in a case where the employer established that a U.S. applicant was not interested in employment only, but partnership opportunities as well, her rejection was lawful. H.R. Enterprises, Inc. , 89-INA-279 (June 25, 1990).

M. Overqualified U.S. applicant

An employer may not reject an applicant solely because that applicant is overqualified.

• World Bazaar , 88-INA-54 (June 14, 1989) ( en banc ); Tri-State Corp. Windows and Doors , 90-INA-186 (Dec. 12, 1991); Deerwood Club , 90-INA-227 (Sept. 3, 1991); John C. Stevenson Architect, Inc. , 88-INA-522 (Aug. 14, 1991); King & Garvis Consulting Eng., Inc. , 90-INA-217 (July 1, 1991); Palacio Metal Works , 90-INA-396 (Mar. 27, 1991); Gala Engineering , 89-INA-224 (June 12, 1990); Lakewood Manor Apartments , 88-INA-572 (Oct. 18, 1989).

The Board has consistently taken the position that an employer may not reject a qualified U.S. applicant because it suspects that he or she may not remain in the position for long. Such a reason for rejection must be documented.

• Listriani's Restaurant , 88-INA-380 (June 9, 1989) ( en banc ); Metroplex Distributors , 88-INA-249 (May 22, 1989) ( en banc ); Switch, USA, Inc. , 88-INA-164 (Apr. 19, 1989) ( en banc ); Hill-Fister Engineers, Inc. , 89-INA-114 (Feb. 6, 1990).

An employer may not assume, based on the fact that an applicant is overqualified, that he or she will leave the job as soon as a better one comes along.

• H-Y-H Corporation , 90-INA-68 (May 22, 1991); World Bazaar , 88-INA-54 (June 14, 1989) ( en banc ).

Similarly, an employer's subjective assertion that an overqualified applicant would become quickly bored in an unchallenging job does not constitute a lawful job-related reason for rejecting the U.S. worker.

• John C. Stevenson Architect, Inc. , 88-INA-522 (Aug. 14, 1991) (applicants were architects or individuals with B.S. degrees in architecture; position was for an architectural model maker).

• Metroplex Distributors , 88-INA-249 (May 22, 1989) (applicant was an accountant; position was for a bookkeeper).

• Southpoint Seafood Market , 87-INA-614 (Jan. 2, 1988) (employer concluded that the applicant would get bored with the job because of a lack of challenge; this was found to be a purely subjective reason for rejection that was not adequately documented because there was nothing in the record to indicate why the interviewer had this impression). Further, an employer's unfounded speculation that the U.S. worker would have used the job as a stepping stone to a business career is insufficient to establish the worker's unavailability. Switch, U.S.A., Inc. , 88-INA-164 (Apr. 19, 1989).

If the employer is concerned that the applicant would not be interested in the job because of overqualification, it must contact the applicant and discuss the position and the applicant's interest therein. John C. Stevenson Architect, Inc. , 88-INA-522 (Aug. 14, 1991); Ric F. Navarro, CPA , 89-INA-343 (Nov. 2, 1990).

An employer's use of the descriptive term "entry level position" did not allow it to reject overqualified applications because of lack of job satisfaction and retention problems which might arise. Despite the possible validity of such concerns by an employer, sections 656.21(b)(7) and 656.24(b)(2)(ii) simply do not permit them to be taken into consideration. Air Products & Chemicals, Inc. , 89-INA-76 (Feb. 28, 1990).

If it appears that state law forbids the employer to lower the pay of a teacher who has obtained a master's degree to the level of a teacher who has a bachelor's degree, then the employer is not required to raise its salary offer to accommodate the state pay schedule requirements for individuals who have achieved higher levels of education than the employer may need. Hamilton County Board of Education , 88-INA-95 (May 31, 1988) (remand for further consideration of state law).

N. Personal interview requirement

In Warmtex Enterprises v. Martin , 953 F.2d 1133 (9th Cir. 1992) (per curiam), the Ninth Circuit held that it is consistent with § 202(a)(14) of the Act, and is reasonably related to the Act's enforcement, for the Board to conclude that the rejection of an apparently qualified applicant, who is unable or unwilling to appear for a personal interview at the applicant's expense, constitutes an unlawful rejection of that applicant.

O. Poor references

Poor references, if documented, constitute a lawful job-related ground for the rejection of a U.S. applicant.

• United Signal Company , 88-INA-422 (Oct. 25, 1989) (where the employer presented credible rebuttal evidence that establishes that a U.S. worker was lawfully dismissed for job-related reasons (unsatisfactory work and insubordinate behavior), the CO improperly presumed that he was fired "to make room for the alien").

• H.C. LaMarche Enterprises, Inc. , 87-INA-607 (Oct. 27, 1988) (applicant who had a history of not getting along with the employers was found not to be an able worker).

Where, however, the employer maintains that the applicant should be rejected because of poor references, the employer may nevertheless have a duty to investigate and interview the applicant where he or she otherwise meets the job requirements.

• Cutting Corners, Inc. , 87-INA-376 (Apr. 5, 1988) (employer alleged that an anonymous agent told the employer that the applicant had a poor work history at a previous job).

The burden of proof is not on the CO to prove that the U.S. applicant is qualified.

• Venk Jewelry , 89-INA-348 (July 30, 1990) (panel noted that the employer did not prove that the applicant was not qualified enough to be interviewed; the employer had alleged that it contacted one of the applicant's previous employers and a person answering the phone said the applicant had not worked there, but did not provide written documentation from that previous employer or any other credible evidence to contradict the applicant's resume).

An employer's statement that a U.S. worker had poor references from his last employer is not a lawful job-related reason for rejecting an apparently qualified U.S. worker when that former employer merely refused to release employment information, and the hiring employer did not notify the U.S. worker to assist in securing release of the information. Norman Industries , 88-INA-202 (July 29, 1988).

As to the requirement that an applicant provide verification of employment and educational credentials, see infra Division IV, U.

P. Prior interview

An employer cannot use information derived from an applicant's interview for a distinct position when evaluating the applicant for the job for which certification is sought. The applicant may not have highlighted certain training or experience in the earlier interview, thinking that the employer was not seeking an employee with such experience. Soricon Corp. , 89-INA-164 (June 7, 1990) (first inverview was for entry-level job; second was for job requiring more skill).

Q. Questionnaires and tests

1. Test designed to test experience

An employer may reject a U.S. applicant who fails a test or questionnaire designed to determine whether the applicant has the proper experience for the job. MITCO , 90-INA-295 (Sept. 11, 1991).

For example, in South of France Restaurant , 89-INA-68 (Feb. 26, 1990), the employer lawfully rejected a U.S. applicant where it required two years of experience in the job offered, that of French Chef, and the employer gave the applicant a written test designed to determine whether he had cooked in the past and for how long. Because the test was not a job duty performance test, but was rather designed to confirm experience, the test was not unlawful, and the applicant's poor performance on the test rationally led the employer to conclude that the applicant lacked the experience required for the position.

2. Applicant's refusal to answer questions regarding substantive knowledge of profession

An employer's rejection of job applicants on the basis either that they refused to fill out a questionnaire examining their substantive knowledge of a profession, or their answers to the questionnaire demonstrated a lack of required knowledge, is not unlawful. Hugh G. Brewster, Inc. , 88-INA-390 (Dec. 6, 1989) (engineering).

3. Test not required of alien

An employer unlawfully rejects U.S. applicants if it requires that they pass a written test which the alien was not required to take. Although an employer may use a test or questionnaire to ascertain the level of an individual's experience, it is not permitted to use a test to discriminate against U.S. workers. MITCO , 90-INA-295 (Sept. 11, 1991). Where, however, an employer asserts that all of its employees, including the alien, have taken and passed an examination, then the employer's use of a skills test to verify an applicant's experience is reasonable. Northwood Unocal 76 , 89-INA-189 (July 9, 1989).

See also Chapter 1, IV, C (Actual Minimum Requirements) for the proposition that § 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.

4. Failure of record to support employer's conclusions that applicant's answers were inadequate

An employer unlawfully rejected a U.S. worker where the applicant's resume indicated that he satisfied the employer's minimum qualifications, but the employer stated that the applicant failed to answer, to its satisfaction, questions concerning job duties. The employer stated that the applicant's answers were too simplistic to be taken seriously. It did not, however, further question the applicant to determine if he was merely attempting to be concise and could elaborate if necessary. In addition, there was no foundation in the record for the employer's conclusion that the applicant's resume was untrue. Entron Enterprises, Inc. , 89-INA-132 (Feb. 27, 1990).

See also Quality Inn , 89-INA-273 (May 23, 1990) and Fritz's Garage , 88-INA-98 (Aug. 17, 1988) ( en banc ), discussed supra Division IV, J. In those cases applicants could not answer questions about specialized job duties, but for various reasons the rejections were found to be unlawful.

R. Special requirements, failure of applicant to meet

Where job applicants fail to meet an employer's "other special requirements" listed on the Form ETA 750A, they may be lawfully rejected by the employer. Bell Northern Research , 88-INA-296 (Apr. 5, 1989) ( en banc ).

Where, however, special job requirements are stated in the disjunctive, a U.S. applicant's failure to have one of the requirements is not a lawful ground for rejection. For example, in one case where the description of job duties and special requirements indicated that the position of franchise marketing analyst required development of programs for "licensing, dealership, or franchise options," U.S. applicants could not be lawfully rejected for not having experience establishing new franchise programs because the employer had not established that the applicants lacked alternative experience in developing new businesses through licensing or dealership options. Bundy American Corporation , 88-INA-308 (Feb. 27, 1990).

S. Subjective considerations

1. Lawfulness of subjective considerations for rejection of U.S. applicants

Although only a few employers have successfully argued a subjective reason for rejecting a U.S. applicant, the body of the cases indicates that a subjective reason for rejecting a U.S. applicant is not necessarily unlawful. It is the failure to document how the interviewer came to the subjective conclusion, or the failure to document how the subjective reason for rejection relates to the job duties, or the impossibility of verification of the subjective reason, that makes subjective reasons for rejection objectionable. Mr. and Mrs. Jeffrey Hines , 88-INA-510 (Apr. 9, 1990). In Hines , the employers documented that the U.S. applicant had a "bad attitude," and that the bad attitude was directly related to an employee's ability to perform the job duties in that the employee was to work in the employers' home and care for their children. Hence, the U.S. applicant was lawfully rejected.

See Chapter 11, IV, B (Evidence) in regard to proof of matters, such as a subjective ground for rejection of a U.S. applicant, not capable of support by independent documentation.

2. Illustrative cases; failure to document subjective ground for rejection

In the following cases the rejection of a U.S. applicant was found to be unlawful because the employer failed to document its subjective determination that the U.S. applicant

is not reliable because of a propensity to drift from job to job,

Bahman Nourafshan , 90-INA-95 (Dec. 10, 1991) (employer concluded, based on the applicant's resume which indicated numerous part-time and temporary jobs, that the applicant had a "propensity to drift from job to job." The employer's conclusion was "pure speculation" as it did not document an attempt to contact the U.S. applicant or her prior employers regarding her work history).

or because of possible commuting problems;

R.L. Fender, D.D.S., P.C. , 87-INA-657 (Feb. 3, 1988) (a dentist could not reject a U.S. applicant solely because of concern that a heavy snowstorm might prevent that applicant from making it to work because of the length of the commute. The record contained no proof of the subjective concern -the applicant had not indicated that commuting in bad weather would be a problem. Rather, the employer's only basis for the concern was past problems with employees having long commutes).

is not trustworthy,

Juanito N. Roque , 88-INA-4 (Apr. 5, 1988) (the burden rests on an employer to demonstrate the applicant's unsuitability due to a lack of trustworthiness).

has an inappropriate personality for the job;

Morris Teitel , 88-INA-9 (Mar. 3, 1989) ( en banc ) (the employer unlawfully rejected a U.S. appli-cant for subjective and personal reasons because she was "a young, divorcee, who is likely to lead an active social life" in regard to a position as a live-in housekeeper/home attendant whose pri-mary duty was to care for an elderly woman with Alzheimer's disease; the employer had provided no objective support for the contention that the applicant's age and martial status would prevent her from performing the job duties. The employer had merely cited a problem with a previous young, single employee).

Empire Marble , 88-INA-360 (Feb. 28, 1989) ( en banc ) (rejection of a U.S. applicant was based on unlawful, subjective opinion concerning a U.S. applicant where the employer stated that it was not comfortable or confident with the applicant, and believed he was a "paper man" rather than a "real accomplisher," despite the admission that the applicant's resume "seemed perfect").

Esther Mosher , 90-INA-253 (July 22, 1991) (the U.S. applicant met the requirements in the ETA 750 and the employer offered only undocumented, subjective reasons for rejecting the U.S. applicant, stating that the applicant lacked a compassionate attitude to care for a person with Alzheimer's disease and lacked the ability to communicate well or to "understand the work environment").

Dharma Friendship Foundation , 88-INA-29 (Apr. 7, 1988) (rejection of a U.S. applicant because he had a "very shy and retiring personality" as opposed to the desired "dynamic, outgoing and forceful" personality type was a subjective ground and not a legitimate reason for rejecting the U.S. applicant).

is not sufficiently physically fit for the job;

Western Bagel Baking Corp. , 90-INA-72 (May 22, 1991) (employer's rejection of a U.S. worker, based upon its subjective opinion that the applicant could not perform the physical demands of kneading dough for bagels, was not proper as it was undocumented).

Marnic Realty , 90-INA-48 (Nov. 21, 1990) (employer's bare assertion and subjective conclusion that an apparently qualified U.S. applicant was not physically fit to perform the duties of the job as maintenance repairer is inadequate in the absence of any supporting documentation; the record included letters of recommendation from the applicant's previous employer noting his excellent work).

is not qualified based on vague "personal experience" with the applicant;

Sete Consultants and Services , 89-INA-100 (Nov. 15, 1989) (employer's allegation that a U.S. applicant did not possess the background claimed, and that personal experience had showed the applicant not to be qualified, were not lawful grounds for rejection of a U.S. worker where there was no documentary support for these reasons. The decision indicated that subjective reasons for rejection are unlawful where they are unverifiable and do not permit an objective test of the labor market. Nonetheless, it was noted that such reasons would not be unlawful in every case).

does not have the artistic proficiency necessary for the job;

See supra Division IV, C, 1.

does not have sufficient "familiarity" with a field; or

See supra Division IV, K.

is overqualified for the job and would become quickly bored and leave.

See supra Division IV, M.

3. Even-handed subjective evaluation

The employer violated § 656.21(b)(6) where it subjectively evaluated and rejected seventy-one U.S. applicants for not meeting its special requirements, but did not similarly evaluate the alien. Everett/Charles Test Equipment, Inc. , 89-INA-40 (Oct. 30, 1989).

T. Unstated requirement

1. Lawfulness of rejection based on unstated requirement

Although the practicality of enumerating peripheral job restrictions in the application and the advertisements must be considered on a case-by-case basis, Jeffrey Sandler, M.D. , 89-INA-316 (Feb. 11, 1991) ( en banc ), as a general matter, an employer unlawfully rejects a applicant where the applicant meets the employer's stated minimum requirements, but fails to meet requirements not stated in the application or the advertisement.

• Jeffrey Sandler, M.D. , 89-INA-316 (Feb. 11, 1991) ( en banc ); ChromatoChem , 88-INA-8 (Jan. 12, 1989) ( en banc ); Ferro Merchandising Equipment Co. , 90-INA-403 (Jan. 7, 1992); S.M.U. Products, Inc. , 90-INA-508 (Dec. 23, 1991); Patra, Ltd. , 90-INA-335 (Oct. 24, 1991); Pearson & Georgi International, Inc. , 90-INA-221 (Sept. 6, 1991); Esther Mosher , 90-INA-253 (July 22, 1991); King & Garvis Consulting Eng., Inc. , 90-INA-217 (July 1, 1991) (requirement in advertisement but not in application); Lords Foods, Inc. , 90-INA-261 (June 28, 1991); Colossal Pictures, Inc. , 89-INA-196 (Mar. 27, 1991); A & E Clinical Veterinary Laboratory , 90-INA-28 (Jan. 2, 1991); Rutherford, Inc. , 89-INA-330 (Aug. 15, 1990); Superior Technical School , 89-INA-227 (June 12, 1990); Photo Network , 89-INA-168 (Feb. 7, 1990); Eastside Construction Co. , 87-INA-677 (Dec. 5, 1989); Bombay Palace Restaurant , 89-INA-83 (Nov. 15, 1989); Universal Energy Systems, Inc. , 88-INA-5 (Jan. 4, 1989).

While an employer may contemplate that certain duties specified in its job description may require certain education and/or experience, these requirements must be specified by the employer; rejection of U.S. workers for not meeting unspecified requirements constitutes unlawful rejection of qualified U.S. workers pursuant to § 656.21(b)(7).

• Photo Network , 89-INA-168 (Feb. 7, 1990); Musicrafts International , 88-INA-461 (Jan. 10, 1990) (applicant met stated requirements, but did not possess skill to perform the job to employer's asserted exacting standards); Universal Energy Systems, Inc. , 88-INA-5 (Jan. 4, 1989); D.N.A., Inc. , 88-INA-18 (May 9, 1988).

2. Illustrative cases; rejection based on previously unstated or unspecified requirements

The following cases illustrate the need for employers to reject applicants only for lacking specified require-ments. The employer unlawfully rejected a U.S. applicant where he or she met the stated requirements but did not have experience in the job,

• Chinese Gourmet Restaurant , 89-INA-275 (May 17, 1990) (employer may not reject U.S. applicants for not possessing sufficient experience in the job of Kitchen Assistant when it did not specify the need for any experience on the application).

• Ethan Allen Gallery , 88-INA-317 (Aug. 28, 1989) (where the employer failed to disclose in either its application or its recruitment that the job was a sales position, and rejected applicants for having no experience or interest in this aspect of the job, the denial of certification was affirmed).

or aspects of the job more specific than originally stated;

• Reliant Construction Corp. , 90-INA-472 (Jan. 28, 1992) (employer failed to document that an applicant with five months of experience as a construction laborer was unqualified for a position requiring only one month of experience simply because the applicant's experience involved commercial property rather than residential housing; the alien's prior experience also appeared to have been in the commercial sector).

• Ronald S. Rusiecki , 90-INA-207 (May 31, 1991) (although the ETA-750 required general dentistry experience, the employer could not reject U.S. applicants for failure to possess the general dentistry experience in private practice ).

• Marnic Realty , 90-INA-48 (Nov. 21, 1990) (where the job notice, advertisements, and application did not require experience as a maintenance repairer of residential buildings, the employer unlawfully rejected a U.S. applicant because his experience was in commercial, and not residen-tial, buildings). To the same effect, Inner City Drywall Corp. , 90-INA-192 (June 24, 1991).

• Just Clothes, Inc. , 88-INA-252 (Mar. 21, 1989) (where the employer did not specify in either the Form ETA 750A or its advertisements that the position required experience as a general manager of more than one retail store, the employer cannot reject U.S. applicants who have experience as a manager of a single retail store).

have experience in a special job skill,

• Esther Mosher , 90-INA-253 (July 22, 1991) (where the job application required only three months of experience in the job offered as a home attendant, or three months of experience as a nurse, it was improper for the employer to reject a U.S. worker for lack of experience with Alzheimer's disease or like dementia as such a specific requirement was not listed in the job application).

• Caldwell's Restaurant , 89-INA-245 (Mar. 6, 1991) (where the employer required no experience for the position of broiler cook/roundsman, it was unlawful to reject U.S. applicants based on a lack of experience in mesquite grill cooking).

• Presbyterian Hospital , 88-INA-38 (Feb. 22, 1989) (failure of U.S. applicants to demonstrate the ability to deal with addiction problems in a "confrontive approach" is not a lawful, job-related reason for their rejection where the application for certification merely identified "group counseling skills" as a requirement; if the ability to use a specific counseling approach or method is a requirement, it must be listed on the application).

or equipment, systems, or computer hardware or software;

• Todd Uniform, Inc. , 90-INA-469 (Dec. 5, 1991) (where the job application required familiarity with computer hardware but did not mention mainframe equipment, it was improper for the employer to reject U.S. applicants for lack of experience with mainframes, particularly where the employer acknowledged that U.S. applicants could learn the system on the job).

• American Precision Industries , 89-INA-45 (Feb. 8, 1990) (employer unlawfully rejected U.S. worker for lack of experience with "non-numerically controlled machines"; this rejection was an unlawful imposition of a requirement not disclosed in the ETA 750 and also appeared to be an erroneous interpretation of the applicant's resume).

• Marvelaire Mechanical Corp. , 89-INA-170 (Feb. 7, 1990) (employer unlawfully rejected U.S. workers where it initially rejected them for not having HVAC experience where no such experience was required in the application, and where the alien was not shown to have possessed such experience when hired).

• Hendry Mechanical Works , 88-INA-527 (Sept. 21, 1989) (rejection of U.S. workers on the basis of lack of experience with computer assisted design systems was improper where the employer did not include such experience in the application or recruitment).

or have specific course work.

• SRS Network, Inc. , 90-INA-405 (Sept. 5, 1990) (employer unlawfully rejected U.S. workers where the sole requirement in the ETA-750 was a M.S. in computer science and the applicant did not have training or an educational background in specific coursework).

• Quantem Corp. , 89-INA-174 (Feb. 21, 1990) (employer unlawfully rejected U.S. worker where, in the application for labor certification, it required solely a Bachelor's degree and rejected U.S. applicants who had the required degree but failed to have completed specific course work; the course work requirement was unlawful as it was an unstated requirement contained in neither the application nor the advertisement).

Similarly, it is unlawful to reject an applicant who is unwilling to accept previously undisclosed conditions on the employment.

• Steve and Debbie Shaw , 89-INA-266 (May 29, 1991) (an employer may not reject applicants who are unwilling to accept a live-in situation for only five days per week where neither the application nor advertisement stated such a limitation on the live-in requirement).

3. Specialized aspect of job within scope of stated requirement

In Pacific Uniform Manufacturing Corp. , 89-INA-334 (Mar. 27, 1991), the employer properly rejected U.S. applicants for lack of knowledge of "807 programs" laws where the employer required knowledge of U.S. customs laws relating to the garment industry and where it documented that "807 programs" laws are included.

4. Rejection based on physical or character traits of the applicant

a. Lawfulness of rejection based on previously unstated requirement that the applicant not have certain physical or character traits

Provided that an employer can establish that it did not merely invent the ground for rejection of an otherwise qualified applicant ( see infra Division IV, T, 4, b) may properly reject U.S. workers on the basis of an unstated job requirement related to physical or character traits of the applicant. An employer is not excused from stating job requirements related to education, skill, training, or experience because such requirements are fundamental, and must be stated from the outset of the application process. Jeffrey Sandler, .D. , 89-INA-316 (Feb. 11, 1991) ( en banc ) (three dissenters concluded that the majority's opinion "opens the door to the improper practice of an employer inventing after-the-fact reasons for rejecting an otherwise qualified U.S. applicant.").

It may be observed that implicit job requirements often underlie lawful rejections of U.S. applicants. See supra Division IV, C, 1 regarding the implicit requirement that a job as an illustrator requires some artistic proficiency; supra Division IV, D, 1 regarding the implicit requirement that the applicant be available and interested in the job; supra Division IV, F regarding the applicant's ability to communicate; supra Division IV, O regarding poor job references; and infra Division IV, V, 1 regarding the applicant's willingness to accept the salary offered.

b. Requirement that ground not have been concocted to reject a qualified U.S. applicant

An employer may properly reject a U.S. applicant on the basis of an unstated job requirement related to physical or character traits of the applicant if the new requirement is found not to be a suspect means of eliminating otherwise qualified U.S. workers. Jeffrey Sandler, M.D. , 89-INA-316 (Feb. 11, 1991) ( en banc ). Employers must be realize that the late introduction of new job requirements may, in many instances, be viewed as evidence of lack of good faith in recruitment. Thus employers introducing new requirements based on an applicant's personal characteristics must be prepared to overcome the impression that the new requirement is a lastminute attempt to eliminate a qualified U.S. applicant from consideration for the job.

c. Personal practice of applicant

Where a U.S. applicant engages in a personal practice which, if performed on the job would expose the employee, or the employee's charge, or the employer or the employer's family or property to a risk that would not otherwise exist, the employer has an inherent right to prohibit such practice, provided that the job requirements do not unlawfully or unreasonably discriminate. Jeffrey Sandler, M.D. , 89-INA-316 (Feb. 11, 1991) ( en banc ). In Sandler , although the emplolyer did not state that it required a non-smoker, the rejection of a smoker for the position of live-in child care/domestic was proper, at least where there was no indication that the newly stated requirement was merely concocted to reject an otherwise qualified U.S. applicant. The Board indicated that an unstated non-smoking requirement may not be reasonable in other employment situations. Three dissenters concluded that it would have been easy and reasonable for the employer to specify the non-smoking requirement in the application and advertisements, and would have required its specification from the outset, or at the very least, would have remanded to require new recruitment.

d. Applicant's poor character

It is self-evident that when the proprietor of a restaurant hires a cook, a requirement is that the worker must actually be there to cook when he is supposed to be there to cook. Thus, the employer in Alfredo's Restaurant #2 , 90-INA-70 (June 12, 1991), lawfully rejected a U.S. worker whose reference stated that he was not reliable to show up for work, even though the job description and advertisement did not include a requirement of reliable attendance.

e. New requirements may be scrutinized to determine whether they are unduly restrictive

If a newly-stated requirement relating to physical or character traits is found not merely to have been concocted to reject an otherwise qualified U.S. applicant, the requirement may also be scrutinized under § 656.21(b)(2) to determine whether it is unduly restrictive. Jeffrey Sandler, M.D. , 89-INA-316 (Feb. 11, 1991) ( en banc ).

5. Unstated requirement not relied on for rejection of applicant

After concluding that the U.S. worker did not meet the minimum requirements, the employer continued interviewing the U.S. worker to see if he was qualified for and interested in other jobs that the employer had. While discussing the requirements for one of the other jobs, the employer mentioned a requirement that was not listed on the ETA 750A for the petitioned position. The record established established established that the applicant was not rejected for the petitioned position based on an unwillingness to perform this job duty. Haden, Inc. , 88-INA-199 (July 7, 1988).

U. Verification, failure to provide employment and educational

An employer may request verification of employment history and educational credentials, and may reject an applicant based on failure to provide such verification. Al-Ghazali School , 88-INA-347 (May 31, 1989); Sunee Kim's Enterprises , 87-INA-713 (July 22, 1988). An employer may not, however, reject apparently qualified U.S. applicants by asserting that it was unable to verify their work histories. Rather, the employer may request verification of employment history from an applicant and may properly reject the applicant for failure to provide said verification. Rodrigues Painting , 89-INA-368 (Jan. 25, 1991).

But see Norman Industries , 88-INA-202 (July 29, 1988), in which it was held that an employer's statement that a U.S. worker had poor references from his last employer is not a lawful job-related reason for rejecting an apparently qualified U.S. worker when that former employer merely refused to release employment information, and the hiring employer did not notify the U.S. worker to assist in securing release of the information.

For cases dealing with poor references generally, see supra Division IV, O.

V. Willingness

1. Applicant's salary demands

An employer may reject an applicant as unwilling to accept the salary offered only after the position has been offered to the applicant at the salary listed. Impell Corp. , 88-INA-298 (May 31, 1989) ( en banc ); Martinez and Wright Engineering , 88-INA-127 (Oct. 28, 1988). An employer's belief that the applicant would be unwilling to accept the salary constitutes an insufficient basis for rejecting the applicant. Palacio Metal Works , 90-INA-396 (Mar. 27, 1991). Thus, an employer's statement that the applicant considered the salary too low, without docu-menting that the position was offered to the applicant and was refused by applicant based on the low salary, is insufficient to establish that the applicant was unwilling.

• Impell Corp. , 88-INA-298 (May 31, 1989) ( en banc ); Peter's Bag Corp. , 90-INA-13 (Dec. 24, 1990) (appli-cant requested higher salary during interview); Unique Chemtek, Inc. , 88-INA-552 (Nov. 16, 1990) (applicant made a written statement of salary preference on the application and orally at an interview); Basin Street Hairstyles , 88-INA-584 (Feb. 6, 1990) (fact that applicant's letter stated that she desired slightly higher salary did not justify failure to interview, since employer never questioned her concerning this); Martinez and Wright Engineering , 88-INA-127 (Oct. 28, 1988) (applicant had indicated that the salary was low, but he was willing to discuss it).

But see American Screen Printing Equipment Co. , 87-INA-649 (Jan. 21, 1988) (applicant who wrote that he expected to earn $10 an hour was lawfully rejected where there was no evidence that the applicant had changed his mind before the end of an interview; CO had found that the applicant would work for the $8 per hour advertised).

See also H.R. Enterprises, Inc. , 89-INA-279 (June 25, 1990) (the employer lawfully rejected a U.S. applicant where it established that she was not interested in employment only, but partnership opportunities as well).

2. Applicant's unwillingness to work overtime

An applicant who would not work overtime was found in H.C. LaMarche Enterprises, Inc. , 87-INA-607 (Oct. 27, 1988), not to be a willing worker.

3. Applicant's unwillingness to commit to job for a specified period

In World Bazaar , 88-INA-54 (June 14, 1989), it was held that an applicant's unwillingness to commit to the job for six months is an insufficient ground for concluding that the applicant is not interested in a permanent position.

4. Willingness to perform the job duties

Labor certification was properly denied where the employer offered an undocumented, subjective conclusion that the applicants would be unwilling to perform the job duties in light of the fact that the job's advertisements explicitly set forth the duties. Oscar & Barbara Lichtenstein , 91-INA-390 (Dec. 16, 1992).

5. Offering lower wage to U.S. applicants

In a memorandum to the file, the CO noted that the employer has, in the past, offered lower wages to the U.S. applicants who applied for a job and that the local office reported that U.S. applicants were reluctant to apply for positions with the Employer because they believed there was no bona fide job opportunity. However, the panel did not affirm the denial of labor certification on this ground because the CO did not provide any documentation from other cases, nor did she raise the issue in a Notice of Findings, where the Employer would have had the opportunity to rebut the allegation. Star Cream Restaurant , 90-INA-584 (Aug. 11, 1993).

V. Evidentiary matters

A. Burden of proof

Under § 656.21(b)(7), the employer has the burden of production and persuasion on the issue of lawful rejection of U.S. workers. Cathay Carpet Mill, Inc. , 87-INA-161 (Dec. 7, 1988) ( en banc ). Moreover, the employer must establish by convincing evidence that an applicant whose resume indicates that he or she is qualified is not qualified -the employer cannot shift the burden to the CO to show that the U.S. worker is qualified. Fritz Garage , 88-INA-98 (Aug. 17, 1988) ( en banc ). The employer bears the burden of proving that the reason for rejecting a U.S. applicant is synonymous with its stated actual minimum requirements. American Screen Printing Equipment Co. , 87-INA-649 (Jan. 21, 1988).

Where, however, the U.S. applicant clearly does not meet a stated job requirement, the burden shifts to the CO to explain adequately why the U.S. applicant is nevertheless is qualified through a combination of education, training or experience. See supra Division III, B. Moreover, the burden is on the CO to show that the applicant is in fact capable of performing the job either immediately or with a nominal period of on-the-job training. See supra Division III, F, 2.

B. Requirement that employer explain or document rejection

1. In general

An employer that fails to explain or document the U.S. applicant's lack of qualifications likewise fails to specify a lawful job-related reason for rejecting the U.S. applicant. Seaboard Farms of Athens, Inc. , 90-INA-383 (Dec. 3, 1991); Tulasi Polavarapu, M.D. , 90-INA-333 (Oct. 29, 1991); D & J Finishing, Inc. , 90-INA-446 (Aug. 13, 1991); Poquito Mas , 88-INA-486 (Feb. 26, 1990); Vanguard Jewelry Corp. , 88-INA-273 (Sept. 20, 1988). An employer must establish, by convincing evidence, that the U.S. applicant is not qualified for the position. Nationwide Body Shops, Inc. , 90-INA-286 (Oct. 31, 1991).

See also supra Division IV, J, 2, a in regard to the employer's burden to provide a detailed basis for its conclusion that a U.S. applicant is not able to perform the main job duties.

2. Illustrative cases; inadequate explanation

An employer's stated reason for rejection is insufficient to establish a lawful ground for rejection of a U.S. applicant where it is

cursory,

Washington Wherewithal , 90-INA-84 (May 21, 1991).

cryptic,

U.S.A. Manufacturing, Inc. , 88-INA-373 (May 1, 1989) ( en banc ).

a mere assertion,

Marnic Realty , 90-INA-48 (Nov. 21, 1990) (bare assertion that an apparently qualified U.S. applicant was not physically fit to perform the duties of the job).

Quality Products of America, Inc. , 87-INA-703 (Jan. 31, 1989) (employer's only response to NOF finding that one applicant was qualified was to assert that the U.S. applicant was unqualified).

inaccurate,

U.S.A. Manufacturing, Inc. , 88-INA-373 (May 1, 1989) ( en banc ).

insufficiently explained,

Caisse National De Credit Agricole , 89-INA-107 (Feb. 14, 1990) (reason a U.S. worker's degree from a French University was found by the employer not to meet its requirements of a Master's degree was not sufficiently explained).

Raven Elevator Corp. , 89-INA-274 (Aug. 15, 1990) (the employer unlawfully rejected a U.S. applicant where it merely stated that the applicant did not "have the experience of the job to be performed"; the applicant's resume indicated over four years of qualifying experience and the panel concluded that the employer's explanation of the rejection, without the results of an interview being stated, was insufficient to support a lawful rejection).

or inconsistent with other evidence.

Marnic Realty , 90-INA-48 (Nov. 21, 1990) (an employer's bare assertion and subjective conclusion that an apparently qualified U.S. applicant was not physically fit to perform the duties of the job as maintenance repairer is inadequate in the absence of any supporting documentation, especially where the record includes letters of recommendation from the applicant's previous employer noting his excellent work).

In St. Lolly International, Inc. , 88-INA-237 (Mar. 28, 1990), the employer unlawfully rejected a U.S. applicant where the applicant's resume reflected an apparently highly qualified candi date, the applicant stated great interest in the position, but the employer stated in its recruitment report that the applicant subsequently stated that he was not qualified for the position. The veracity of the employer's recruitment report was questioned where the employer contended, based on a one-minute telephone conversation, that the applicant concluded that he was not qualified. The employer had failed to report the content of the telephone conversation or state why the candidate felt he was not qualified.

Kaiser Engineers , 88-INA-363 (Aug. 1, 1989) (the employer unlawfully rejected a U.S. applicant where the stated reason for rejection was inconsistent with the interviewer's notes; moreover, the veracity of an employer's reason for rejection was doubted as the applicant stated in a questionnaire that he was not hired due to a business downturn in the employer's company).

C. CO's request for specific documentation

Where the NOF requested documentation that certain U.S. workers were rejected for job-related reasons, the employer must respond with specific lawful job-related reasons for not hiring such U.S. workers. Nulook Fashions, Inc. , 88-INA-560 (Nov. 13, 1989). The denial of certification was affirmed in one case, for example, where the CO requested that the employer document why each of fifteen applicants were rejected and the employer failed to identify in the rebuttal which U.S. applicants were rejected for what reasons. Bomark Fabrics , 88-INA-425 (June 7, 1989).

D. CO's obligation to address new reason for rejection

Once an employer has rejected an apparently qualified applicant for an unlawful reason, the CO is not required to investigate the legitimacy of a totally independent reason for rejection offered by the employer for the first time in response to the Notice of Findings. Foothill International, Inc. , 87-INA-637 (Jan. 20, 1988).

But see American Screen Printing Equipment Co. , 87-INA-649 (Jan. 21, 1988), where the Board accepted the employer's reasons for rejecting U.S. workers as lawful and job-related, even though one of the reasons was raised for the first time in employer's rebuttal to the NOF.

E. CO's concession that job requirements are not excessive

Where the CO finds the job requirements excessive, and finds a U.S. worker qualified but for the excessive requirements, the CO's later acceptance of the justification for the employer's requirement ipso facto legitimizes the rejection of the U.S. applicant for failure to meet those requirements. Tele-Denken Resources, Inc. , 88-INA-303 (Oct. 27, 1988).