UNITED STATES DEPARTMENT OF LABOR
BOARD OF ALIEN LABOR CERTIFICATION
Second Edition - May 1992
BURDEN OF PROOF
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III. Particular burdens
Section 212(a)(14) of the Immigration and Nationality Act of 1952 (amended by § 212(a)(5)(A) of the Immigration Act of 1990 and recodified at 8 U.S.C. § 1182(a)(5)(A)) was enacted to exclude aliens competing for jobs American workers could fill and to "protect the American labor market from an influx of both skilled and unskilled foreign labor." Cheung v. District Director, INS , 641 F.2d 666, 669 (9th Cir. 1981); Wang v. INS , 602 F.2d 211, 213 (9th Cir. 1979). To achieve this Congressional purpose, the regulations set forth a number of provisions designed to ensure that the statutory preference favoring domestic workers is carried out whenever possible.
Twenty C.F.R. § 656.2(b) quotes § 291 of the Immigration and Nationality Act, 8 U.S.C. § 1361, as follows:
- Whenever any person makes application for a visa or any other document required for entry, or makes application for admission, or otherwise attempts to enter the United States, the burden of proof shall be upon such person to establish that he is eligible to receive such visa or such document, or is not subject to exclusion under any provision of this Act...
The legislative history of the 1965 amendments to the Act establishes that Congress intended that the burden of proof for obtaining labor certification be on the employer who seeks an alien's entry for permanent employment. See S. Rep. No. 748, 89th Cong., lst Sess., reprinted in 1965 U.S. Code Cong. & Ad. News 3333-3334.
As to the nature of burdens in particular matters, see the discussion in the relevant Chapters.