Judges' Benchbook: Alien Labor Certification

Office of Administrative Law Judges
United States Department of Labor

Second Edition - May 1992

CHAPTER 11 -- SUPPLEMENT

Supplement current through January 1997

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

no new cases

B. Where regulation does not specify form

1. Acceptability of written statements

Written assertions that are not reasonably specific and do not indicate their sources or bases shall not be considered documentation. See Gencorp , 87-INA-659 (Jan. 13, 1988). Employer failed to document its subjective reasons for rejecting an applicant. Jackson Hole Wyoming , 94-INA-539 (Mar. 5, 1996) (denying certification where Employer rejected an applicant specialty cook on the basis of the applicant was improperly groomed because Employer's rebuttal contained only general descriptions of the applicant's appearance, rather than describing specific aspects of her physical appearance or dress that would show precisely how she was improperly groomed or inappropriately dressed and how this would relate to job duties). See also Bellport Country Club , 94-INA-575 (June 6, 1996); Datum Environmental, Inc. , 95-INA-86 (Oct. 2, 1996).

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. Rajwinder Kaur Mann , 95-INA-328 (Feb. 6, 1997).

Employer applied for certification for the position of systems analyst. It required a bachelor's degree in engineering or computer science but also required the completion of at least 1 graduate course in 1) advanced topics in computer aided design, 2) computer graphics, 3) computational geometry. The CO denied certification after finding that the educational requirements were unduly restrictive and the Board affirmed. The Board cited Gencorp , 87-INA-659 (Jan. 13, 1989) (en banc) (holding that reasonably specific written assertions are documentation that the CO must consider). However, the Board noted in this case Employer merely stated general background information about itself and its rebuttal consisted of bare assertions. Therefore, the Board found that Employer failed to establish that the graduate courses were essential to performing in a reasonable manner the position's duties as required by Information Industries, Inc. , 88-INA-82 (Feb. 9, 1989) (en banc). Analysts International Corp. , 95-INA-131 (May 28, 1996).

Employer, a home cleaning service, applied for certification for the position of cleaning supervisor. Employer required ability speak Spanish and 2 years experience as a cleaner for the position. In the NOF proposing to deny certification on the grounds that the foreign language requirements was not a business necessity, the CO requested that Employer document the number of employees to be supervised and how many spoke no English, evidence to support the lack of English ability, the amount of time the employee would communicate in Spanish, whether Employer had ever hired non-English speakers in the past, and evidence that there were no alternatives to speaking Spanish. In response to the first question Employer argued without documentation that Alien would supervise 6 employees who speak Spanish always. Responding to the second request, Employer attached its application for employment, written in Spanish. In response to the fourth request, Employer submitted nothing. In response to the last request, Employer argued without documentation that hiring a Spanish-speaking supervisor would be the "only efficient way to supervise my Spanish-speaking employees..." The CO denied certification and the Board affirmed. Citing Gencorp , 87-INA-659 (Jan. 13, 1988) (en banc), the Board acknowledged that written assertions are documentation that it must consider. However, here, the Board noted, Employer offered only written assertions and an application in Spanish to justify the business necessity of Spanish and "bare assertions without supporting reasoning or evidence" does not carry Employer's burden. Metro Homes Services, Inc. , 95-INA-168 (Dec. 27, 1996).

A written assertion constitutes documentation that must be considered for the purposes of rebuttal. See Gencorp , 87-INA-659 (Jan. 13, 1988) (en banc). Addison Hall Farm , 94-INA-466 through 94-INA-469 (Mar. 28, 1996). Employer failed to demonstrate the business necessity of a 2 year experience requirement for the position of vegetable farmer where in rebuttal it stated that "it is a small operation that cannot compete with large scale farms, and seeks instead to grow particular lettuce, a special bean, to find a niche market of "immigrant families yearning for particular products from their days in the old country." Employer also offered a list partial list of vegetables that it grew and a list of middle eastern products organically grown and regularly sought and a statement concerning the difficulties in growing South American crops. The Board reasoned that the statements do not describe the relationship between business necessity and the 2 year experience requirement. Addison Hall Farm , 94-INA-466 (Mar. 28, 1996). See also Wong's Palace Chinese Restaurant , 94-INA-410 (Oct. 12, 1995).

Employer applied for certification for the position of cook - specialty Indian food in Employer's household. After the CO questioned whether the position was permanent and full-time, Employer rebutted, arguing that, "[b]ecause of our complex and busy work schedules, we have no time to cook for ourselves." Employer continued, arguing that the family is accustomed to Indian foods, does not eat fast food, and therefore has no choice but to hire a full-time cook. Employer last argued that her household has a "definite need for a full-time cook" and that, because they could afford it, there was nothing unusual in "hiring a suitable person for the position." The CO denied certification and the Board affirmed. Citing Gencorp , 87-INA-659 (Jan. 13, 1988) (en banc), the Board acknowledged that written assertions constitute documentation that must be considered. However, here, the Board reasoned that Employer had provided only general responses to some of the questions asked by the CO. It did not specify how many meals would be cooked daily and how many people would be eating. It appeared to the Board that Employer, her spouse, and the children were gone often during the day and that only the grandparents needed to be fed. Moreover, Employer had failed to document the entertainment schedule for the proceeding 12 months. Dr. Urvashi Kapoor , 95-INA-151 (Dec. 2, 1996).

Employer applied for certification for the position of Donut Baker and required 2 years in the job offered or 2 years experience as a baker apprentice. The CO issued a NOF proposing to deny certification on the grounds 2 years experience either in the job offered or as a baker apprentice is restrictive and unrealistic given the normal range was 6 months of experience. The CO noted among other things that Alien received 2 years of experience as a baker for Employer. After receiving a rebuttal, the CO denied certification. Affirming the denial of labor certification, the Board acknowledged that written assertions are documentation that the CO is required to consider. See Gencorp , 87-INA-659 (Jan. 13, 1988) (en banc). However, it reasoned that Employer had only provided a 1 sentence statement of business necessity with the rebuttal and failed to directly address this issue and provide documentation. Dunkin Donuts , 95-INA-192 (Jan. 22, 1997).

Where Employer's vice president asserted that an applicant "had a hard time understanding the interviewing officer and when he answered the questions he, could not bring out his knowledge...," and where the vice president further stated that the applicant "could not express ...[himself] in words...," although he was "academically intelligent," Employer's assertions concerning the applicant's ability were sufficiently detailed and reasoned, were not "inherently implausible or inconsistent, were not refuted," and were reasonably specific and supported by a reasoned analyses such that they constituted documentation that should have been considered. See Gencorp, 87-INA-659 (Jan. 13, 1988) (en banc). Testwell Craig Labs of N.J., Inc. , 94-INA-512 (Dec. 2, 1996).

In response to a NOF requesting substantial documentation supporting the need for a full-time chef, Employer submitted a proposed menu, a full explanation of why the current menu did not have Indian dishes (no one available who could prepare them), and a full history of the restaurant, a list of all current employees (something not requested by the CO). Although Employer did not submit a detailed, third party survey of the business prospects that would support a full-time chef, nonetheless Employer's intimate knowledge of the restaurant business, his own background in Indian cuisine and traditions and personal knowledge of the demographics of the area in which the business was located appeared to the Board to be more than adequate to determine whether or not a full-time chef would be necessary. The Board reversed the CO's denial of labor certification. Citing Gencorp , 87-INA-659 (Jan. 13, 1989) (en banc), the Board reasoned that Employer had provided reasonably specific written assertions that indicated their sources and their bases and they were documentation which should have been given the weight they rationally deserved in making the relevant determination. Hunter's Inn , 95-INA-278 (Feb. 19, 1997).

Employer rejected 4 U.S. applicants for the position of "housekeeper - live-in." One of these applicants was rejected because "she did not have the required experience" and another was rejected because "the applicant moved from the address given and no one at the address and telephone that was left could furnish us with any information as to her whereabouts." The former applicant reported that Employer had told her that she was overqualified. The latter applicant was reached by the CO via regular mail at the address given and noted that Employer never contacted her. In rebuttal to a NOF which required Employer to respond to these discrepancies, Employer stated that every number the former applicant "gave us was incorrect, and she could not, or would not give further telephone numbers to contact the people." Employer further stated that "[w]e made numerous attempts to contact the ...[latter applicant]...[s]he was not at the telephone listed and the people who answered the telephone indicated that she was seldom, if ever, there and that they would not take a telephone message for her..." The CO denied certification and the Board affirmed. Distinguishing Gencorp , 87-INA-659 (Jan. 13, 1988) (en banc) (holding that written assertions that are reasonably specific and indicate their sources and basis), the Board reasoned that, although written assertions constitute documentation, a bare assertion without supporting reasoning or evidence is generally insufficient to carry the Employer's burden of proof. Neil Clark , 95-INA-92 (Jan. 27, 1997).

Together, a menu listing Russian specialties, an unrefuted statement by the restaurant owner that Georgian dishes are daily specials and will be listed on a new menu, and a restaurant's name emphasizing Russian cuisine, adequately document the need for a "Russian/Georgian specialty cook". See also H.R. Enterprises, Inc. - 89-INA-279 (Jun. 2, 1990) (holding that Employer provided sufficient documentation of need for Argentinean chef based on restaurant owner's plan to include that country's cuisine). Russian Village Restaurant , 94-INA-00384, 94-INA-00385 (Dec. 17, 1996).

2. Weight and sufficiency

See Datum Environmental, Inc. , 95-INA-86 (Oct. 2, 1996).

II. Document requested by CO

A. Authority of CO to request document

The Board affirmed denial of labor certification where the CO had requested Employer to provide documentation of the business necessity for a Master's Degree because the documentation was relevant and reasonably obtainable. East Harlem Council for Community Improvement, Inc. , 94-INA-527 (Feb. 23, 1996). See also Glendale Family Medical Center , 95-INA-40 (Oct. 3, 1996) (remanding an application for the position of physician's assistant after the CO requested Employer to submit a statement from the state licensing board indicating either that the a license for the position was not required or that Alien had the license and after Employer refused to provide the statement because the CO was unreasonable in requiring Employer to prove that Alien had a license prior to certification and entry into the United States); Jessie Jewelry , 95-INA-13 (Sept 16, 1996) (denying certification where Employer failed to provide the one application it received during recruitment because the CO was unable to make any determination without it); O.K. Liquor , 95-INA-7 (Aug. 22, 1996) (denying certification where Employer failed to privde information questioning whether the Employer could pay the offered salary).

An employer must provide directly relevant and reasonable obtainable documentation sought by the CO. See Gencorp , 87-INA-659 (Jan. 13, 1988) (en banc). In the NOF the CO requested Employer to document the business necessity of German and French languages for the position of business operations manager. The CO requested that Employer provide the names and languages spoken by individuals previously hired and presently employed in occupation, including their date of hire, and a break down of their training and experience qualifications at the time of hire, and to document that Employer had not previously hired workers with less training and experience than what is required. Employer responded with mere assertions and therefore, the Board affirmed the CO's denial of labor certification. Shamp Plumbing and Building , 94-INA-530 (Feb. 23, 1996).

Where the CO requests a document or information which has a direct bearing on the resolution of the issue and is obtainable by reasonable effort, the employer must produce it. See Gencorp , 87-INA-659 (Jan. 13, 1988) (en banc). The CO requested Employer to provide inventory records which would indicate the types and amounts of food items sold in order to establish the business necessity of a full-time Arabic cook. The evidence actually presented by Employer suggested that the position was in a deli in a grocery store and that the Deli sold primarily carry out food and Employer did not provide inventory records. The Board denied certification because without data concerning the extent of ethnic food purchases, there was no way of demonstrating business necessity. Super Super, Inc ., 94-INA-604 (Aug. 29, 1995).

When the CO requests documentation that has a direct bearing on the resolution of an issue and is obtainable by reasonable efforts, an employer must produce it. See Gencorp , 87-INA-659 (Jan. 13, 1988) (en banc). In its recruitment report, the CO noted the rejection of 2 (among others) U.S. applicants on the basis that they lacked experience in air ticketing and hotel bookings. In the NOF the CO requested the documentation of the lawful rejection of the U.S. applicants. In rebuttal, Employer dropped 1 reason, lack of experience in hotel bookings, as a reason for rejection of 1 applicant. Employer also changed the reason for dropping the second applicant from lack of experience in air ticketing to lack of experience making car reservations. The Board affirmed the CO's denial of certification on the basis that instead of documenting the rejection as requested, Employer changed the reasons for rejection. Fourways Travel, Inc ., 94-INA-562 (Mar. 29, 1996).

The Board recently cited Gencorp , 87-INA-659 (Jan. 13, 1988) (en banc) and noted, "Where a document has a direct bearing on the resolution of an issue and is obtainable by reasonable efforts, the document, if requested by the CO, must be adduced." In upholding the CO's denial of certification for the position of wood carver, the Board reasoned that Employer had failed to provide requested information concerning Employer's total number of workers, number of carvers, number of months each carver worked per year, financial volume of business, and copies of contracts for hand carving. Had Employer provided the information, the Board further reasoned, the CO may have had other reasons for denying certification, such as the availability of U.S. workers (Employer in its Motion for Reconsideration had provided new information stating that Alien had worked as a wood carver for Employer since 1992. But see Judge Huddleston, dissenting. American Stair Builders, Inc. , 95-INA-269 (Feb. 6, 1997).

Employer sought alien labor certification for the position of "auto mechanic." The CO in the NOF requested Employer to justify the business necessity for requiring a combination of duties as both a refrigerator mechanic and an auto mechanic. The CO specifically requested that Employer document how many auto mechanics worked for Employer at the time Alien was trained, how many auto mechanics worked for Employer presently (besides Alien), who trained Alien, the change in the total work force and annual volume of business from the time Alien was hired and trained and present, and why a company that expanded considerably since Alien was trained had not proportionately developed the ability to train now (which the CO noted was customary with growth and development). In rebuttal to the NOF, Employer's counsel submitted a letter detailing why Employer needed Alien rather than a U.S. worker. The letter did not give the name of the person who trained Alien, the change in the total work force and annual volume of business from the time Alien was hired to present, and why a company which expanded has not developed proportionately the ability to train now. The CO denied certification on other grounds and the Board affirmed. It noted that, even though labor certification was properly denied on other grounds, labor certification would still be denied because Employer failed to submit documentation reasonably requested by the CO and this failure warrants denial of labor certification. See Edward Gerry , 93-INA-467 (June 13, 1994). Marina Ice Cream Company , 95-INA-93 (Jan. 27, 1997) (dictum).

Employers, apparel manufacturers, sought multiple certifications for the positions of "duplicate maker" or "sample stitcher." The CO issued a NOF questioning whether the work was permanent and full-time, given that there seemed to be periods in which workers were forced to take leave without pay. The NOF requested documents related to payroll to demonstrate whether there were end-of-year shutdowns and Employers failed to provide them. Denying certification, the CO was affirmed by the Board. Citing Bijan Azadi & Assoc. , 94-INA-382 (Oct. 4, 1995) and Collectors International , Ltd. , 94-INA-382 (Dec. 14, 1989) the Board reasoned that employers must provide information related to end-of-year shutdowns reasonably requested by the CO and they failed to do so here. Top Sewing, Inc. and Columbia Sportswear , 95-INA-563 and 96-INA-38 (Jan. 28, 1997).

Where the CO requests a document then it must be produced if it has a direct bearing on the issue and is obtainable by reasonable efforts. Employer, applying for certification for the position of "chef, Indian cuisine," adequately complied with the CO's request where, in response to a NOF requiring substantial documentation supporting the need for a full-time chef, Employer submitted a proposed menu, a full explanation of why the current menu did not have Indian dishes (no one available who could prepare them), a full history of the restaurant, and a list of all current employees that was not questioned by the CO. Although Employer did not submit a detailed, third party survey of the business prospects that would support a full-time chef, nonetheless Employer's intimate knowledge of the restaurant business, his own background in Indian cuisine and traditions and personal knowledge of the demographics of the area in which the business was located appeared more than adequate to determine whether or not a full-time chef would be necessary. Hunter's Inn , 95-INA-278 (Feb. 19, 1997).

B. Consequences of failure to produce document

An employer's failure to produce documentation reasonably requested by the CO will result in a denial of labor certification. Edward Gerry , 93-INA-467 (Jun. 13, 1994). See also Kata Contracting Corp. , 93-INA-190 (May 24, 1994); Kata Contracting Corp. , 93-INA-118 (May 24, 1994); John Tara Inc. , 93-INA-117 (May 24, 1994); Restaurant Equipment Co. , 93-INA-357 (Jul. 26, 1994); The Foot Works , 93-INA-464 (Nov. 30, 1994); The Dwight School , 93-INA-58 (Apr. 13, 1995). But see The Korean Women's Association of America , 93-INA-507 (Apr. 13, 1995) (remanding a case for the CO to review specific documentation belatedly submitted with the request for review where in rebuttal Employer provided reasonable general explanation indicating full-time employment).

Labor certification properly denied where: 1) CO requested specific data regarding Employer's workforce that would show that the required computer knowledge is normal and customary for Employer's business; 2) requested information is relevant; and 3) Employer did not provide this information in its rebuttal. Norwood Computer Services, Inc. , 93-INA-232 (Jul. 8, 1994).

Labor certification properly denied where the CO requested specific information to document full-time employment of household cook and Employer responded only with general objection to providing any such information. Ramsinh K. Asher , 93- INA-347 (Nov. 8, 1994).

Labor certification properly denied where Employer failed to provide specific documentation showing job of Artist/Painter is permanent and full-time as requested by the CO. Employer's rebuttal, statement that Alien would work in a rented studio for approximately 35-40 hours per week, does not constitute adequate documentation. Phyllis Kind Gallery, Inc. , 92-INA-423 (Oct. 11, 1994).

Employer's failure to supply documentation from Alien's visa file, regarding the circumstances of the alien's position with Employer's foreign based parent company, on the grounds that it could not locate the file was not persuasive since it had submitted portions previously. In light of the circumstances, the CO properly inferred that the documentation therein would have been detrimental to Employer's case and would have supported the finding of no bona fide job. Driessen Aircraft Interior Systems , 93-INA-82 (Jan. 11, 1995).

Labor certification properly denied where Employer failed to document business necessity for special requirements included for an accountant position by submitting documentation reasonably requested by the CO. Rather than submit specific documentation, including the number of accountants previously hired with the special requirements, Employer asserted that "it would be safe to say that they (the special requirements) are in common usage in a wide variety of industries and fields and are by no means unique to our organization." Kulmer, Inc. , 93- INA-235 (Apr. 13, 1995).

Labor certification properly denied where Employer failed to document business necessity for requirement that applicants provide a signed affidavit from previous employer and take a test/questionnaire. The CO reasonably required that Employer document business necessity with specific evidence, including a copy of the questionnaire, whether Alien had been similarly required to take questionnaire, whether it is common industry practice for employers to require affidavits, etc. Employer's failure to supply such documentation justified the denial. Esmay Assoc. , 94-INA-21 (Apr. 13, 1995).

Where the NOF requested unspecified "documentation" establishing that Employer's requirements were the actual minimum requirements and that Employer had not hired workers with less education , training and experience, Employer's sworn statement on rebuttal addressing all the issues raised in the NOF was sufficient for Employer to carry its burden of proof. Rak and Rak, Inc. , 94-INA-210 (Apr. 28, 1995).

An employer's failure to produce documentation reasonably requested by the CO will result in a denial of labor certification. John Hancock Financial Services , 91-INA-131 (June 4, 1992). See also D.F.F. Concrete Corp. , 92-INA-5 (Aug. 24, 1993); Michael Aquino Landscaping & Gardening , 92-INA-38 (Aug. 2, 1993) (Denying certification where Employer failed to submit requested payroll records to demonstrate that its landscapists worked year round); Rocco Parente , 92-INA-248 (Aug. 2, 1993) (denying certification where Employer failed to submit requested payroll records to demonstrate that landscapists worked year round); Ron M. Glazer , 91-INA-74 (July 22, 1993) (denying certification where Employer submitted no documentation to support business necessity for live-in requirement); The Salesman's Guide , 92-INA-44 (Mar. 8, 1993); Ben Forman & Sons, Inc. , 92-INA-45 (Mar. 8, 1993) (denying certification where Employer failed to submit resumes of applicants as requested by the CO); Victor Discount Stores, Inc. , 91-INA-320 (Dec. 1, 1992).

Labor certification was properly denied where Employer failed to submit a "Profit and Loss" statement as requested by the CO to establish its ability to pay the prevailing wage rate. Instead Employer submitted a financial statement which it qualified as being unaudited. The Whislers , 90-INA-569 (Jan. 31, 1992).

Where Employer failed to submit a letter from the California Board of Medical Assurances that the job offered did not require a license, as requested by the CO, labor certification was properly denied. Supercare Medical Group , 90-INA-245 (May 14, 1992). See also Mohammadi Hosein, M.D., Inc. , 93-INA-16 (Mar. 28, 1994) (denying certification where Employer only provided edical Board statement indicating that Employer's description of the job duties for the position of ophthalmologist assistant was too vague and ambiguous to base any opinion as to whether a medical license was needed).

Labor certification was properly denied where Employer failed to produce, as requested by the CO, evidence that it was in compliance with California's unemployment and disability insurance laws for a domestic worker. Laurie Wallace , 91-INA-389 (May 12, 1993).

Labor certification was properly denied where Employer failed to produce the results of the typing skills test upon which it based its rejection of five U.S. applicants. Vittorio Cavina , 92-INA-207 (June 2, 1993).

Labor certification properly denied where Employer did not provide requested phone bill receipts showing long distance calls allegedly made to applicant. Rouber International , 91-INA- 44 (Mar. 31, 1994); D Rose Linens , 93-INA-157 (Mar. 18, 1994) (denying certification for failure to provide requested documentation that Employer contacted qualified applicant).

But see Saga Transport (U.S.A.), Inc. , 91-INA-375 (Aug. 24, 1993) (reversing where the Board found Employer's failure to provide English translations of several documents as requested by the CO to be de minimus . In a split decision, the panel found that the NOF did not challenge the validity of the French language requirement and, as such was not at issue, failure to produce requested documents not grounds for denial of certification).

Conclusion is supported where CO requests documentation that is readily available, but employer fails to produce it. Edward Geny, 93-INA-467 (June 13, 1994). Eli's Trims, Inc., 94-INA-404 (Jan. 25, 1996).

Failure to provide relevant and reasonably available information requested by CO is grounds for denial. STLO Corp ., 90-INA-7 (Sept. 9, 1991). Universal Diesel Services , 94-INA-250 (Oct. 4, 1995).

California law requires employers to provide unemployment insurance and state disability insurance. Where CO requested documentation that these things had been done and Employer failed to produce the documents, certification was properly denied. See Gencorp. , 87-INA-659 (Jan. 13, 1988). STLO Corp ., 90-INA-7 (Sept. 9, 1991). Arjun Advani Mihinder , 94-INA-221 (Jan. 23, 1996).

California law requires employers to provide unemployment insurance and state disability insurance. Where the CO requested documentation that these things had been done and Employer failed to procedure the documents then certification was properly denied. See Gencorp , 87-INA-659 (Jan. 13, 1988); STLO Corp ., 90-INA-7 (Sept. 9, 1991). Arjun Advani Mihinder , 94-INA-221 (Jan. 23, 1996). See also Hybco U.S.A. , 95-INA-16 (July 18, 1996) (denying certification on the grounds that no bona fide job opportunity existed where the CO requested articles of incorporation, explain an apparent relationship between Alien and the company owners, explain why Alien was the highest paid employees, and why the signatory of the application for certification did not appear on the payroll records and where Employer only provided some of the documentation).

An employer's failure to produce a document reasonably requested by the CO is grounds for denial of labor certification. See Edward Gerry , 93-INA-467 (June 13, 1994). In the NOF the CO challenged the business necessity of requiring a B.A. in architecture with 2 years experience for the position of construction supervisor and instructed the Employer to provide an excerpt from the company personnel manual listing the requirements for the position in question. In rebuttal, Employer's sole justification for requiring a B.A. architecture with 2 years experience for the position of construction supervisor was a statement that the requirements were necessary for the position. Because Employer failed to provide the documentation, labor certification was properly denied. B.Q.E. Construction , 94-INA-589 (Feb. 26, 1996).

If the requested by the CO cannot be produced, the employer is obligated to justify its failure. See Vernon Taylor , 89-INA-258 (Mar. 12, 1991). In the NOF the CO challenged the business necessity of requiring a B.A. in architecture with 2 years experience for the position of construction supervisor and instructed Employer to provide an excerpt from the company personnel manual listing the requirements for the position in question. In rebuttal, Employer's sole justification for requiring a B.A. architecture with 2 years experience for the position of construction supervisor was a statement that the requirements were necessary for the position. Labor certification was properly denied because Employer neither justified business necessity nor explained the failure. B.Q.E. Construction , 94-INA-589 (Feb. 26, 1996).

Employer applied for certification for the position of machine technician/machine operator. The job duties included setting "up lathes and milling machines with CNC programming in order to operate..." machines, "[p]erform tool grinding,..." "test for hardness of metals; set up tooling, write test and analyze programs." The Employer listed several special requirements, including a "[t]echnichal high school diploma specializing in machine operations and technology of machine operations...trigonometry and mechanical drafting, CNC programming...and metric system of weights and measures." In the NOF the CO instructed Employer to provide specific information and documentation with regard to all special requirements. In rebuttal, Employer provided the requested information with regard to the metric system and trigonometry and mechanical drafting requirement. The CO denied certification and the Board affirmed. Citing John Hancock Financial Services , 91-INA-131 (June 4, 1992), the Board noted that an employer's failure to produce documentation reasonably requested by the CO results in the denial of labor certification. Here, the Board found that Employer offered written assertions as to the business necessity of some of the special requirements and therefore had inadequately documented the business necessity of the special requirements. Ridge Precision Products , 95-INA-149 (Nov. 22, 1996).

Labor Certification is properly denied where the CO requests specific data regarding employer's work force, the requested information is relevant and the employer fails to provide the information in rebuttal. See Norwood Computer Services, Inc. , 93-INA-232 (July 8, 1994). Employer failed to provide data with regard to factors set forth in Delitzer Corp. of Newton , 88-INA-482 (May 9, 1990) (en banc). P & P Contractors, Inc ., 94-INA-564 (Feb. 26, 1996).

An employer's failure to produce relevant and reasonably obtainable documents or information required by the CO is grounds for the denial of certification. See Edward Gerry , 93-INA-467 (June 13, 1994). In its recruitment report, the CO noted the rejection of 2 (among others) U.S. applicants on the basis that they lacked experience in air ticketing and hotel bookings. In the NOF the CO requested the documentation of the lawful rejection of the U.S. applicants. In rebuttal, Employer dropped 1 reason, lack of experience in hotel bookings, as a reason for rejection of 1 applicant. Employer also changed the reason for dropping the second applicant from lack of experience in air ticketing to lack of experience making car reservations. The Board affirmed the CO's denial of certification on the basis that instead of documenting the rejection as requested, Employer changed the reasons for rejection. Fourways Travel, Inc ., 94-INA-562 (Mar. 29, 1996).

Employer, a home cleaning service, applied for certification for the position of cleaning supervisor. Employer required ability speak Spanish and 2 years experience as a cleaner for the position. In the NOF proposing to deny certification on the grounds that the foreign language requirements was not a business necessity, the CO requested that Employer document the number of employees to be supervised and how many spoke no English, evidence to support the lack of English ability, the amount of time the employee would communicate in Spanish, whether Employer had ever hired non-English speakers in the past, and evidence that there were no alternatives to speaking Spanish. In response to the first question Employer argued without documentation that the Alien would supervise 6 employees who speak Spanish always. Responding to the second request, Employer attached its application for employment, written in Spanish. In response to the fourth request, Employer submitted nothing. In response to the last request, Employer argued without documentation that hiring a Spanish-speaking supervisor would be the "only efficient way to supervise my Spanish-speaking employees..." The CO denied certification and the Board affirmed. Citing John Hancock Financial Services , 91-INA-131 (June 4, 1992), the Board noted that labor certification is properly denied where an employer fails to provide documentation reasonably requested by the CO. In the instant case, the Board noted, Employer offered only written assertions and an application in Spanish to justify the business necessity of Spanish. Metro Homes Services, Inc. , 95-INA-168 (Dec. 27, 1996).

The Board recently cited Oconee Center-Mental Retardation Services , 88-INA-40 (denying certification where Employer failed to produce documentation having "direct bearing on the resolution of an issue and is obtainable by reasonable efforts"). In upholding the CO's denial of certification for the position of wood carver, the Board reasoned that Employer had failed to provide requested information concerning Employer's total number of workers, number of carvers, number of months each carver worked per year, financial volume of business, and copies of contracts for hand carving. Had Employer provided the information, the Board further reasoned, the CO may have had other reasons for denying certification, such as the availability of U.S. workers (Employer in its Motion for Reconsideration had provided new information stating that Alien had worked as a wood carver for Employer since 1992). But see Judge Huddleston, dissenting. American Stair Builders, Inc. , 95-INA-269 (Feb. 6, 1997).

Employer applied for certification for the position of mechanical engineer and required a master's degree in mechanical engineering plus two years of experience in the job offered. The CO denied certification both on the basis that the master's degree was unduly restrictive and on the basis that Employer had failed to provide information requested by the CO concerning the unlawful rejection of 1 applicant. Employer had rejected 1 applicant on the basis that he had no master's degree even though he was otherwise qualified. In rebuttal, Employer provided none of the information. On appeal, the Board cited John Hancock Financial Services , 91-INA-131 (June 4, 1992) and reasoned that "an employer's failure to produce documentation reasonably requested by the CO will result in a denial of labor certification." However, the Board remanded the case on another issue. Sidhu Assoc., Inc. , 95-INA-182 (Jan. 2, 1997).

Employer rejected 4 U.S. applicants for the position of "housekeeper - live-in." One of these applicants was rejected because "she did not have the required experience" and another was rejected because "the applicant moved from the address given and no one at the address and telephone that was left could furnish us with any information as to her whereabouts." The former applicant reported that Employer had told her that she was overqualified. The latter applicant was reached by the CO via regular mail at the address given and noted that Employer never contacted her. In rebuttal to a NOF which required Employer to respond to these discrepancies Employer stated that every number the former applicant "gave us was incorrect, and she could not, or would not give further telephone numbers to contact the people." Employer further stated that "[w]e made numerous attempts to contact the ...[latter applicant]...[s]he was not at the telephone listed and the people who answered the telephone indicated that she was seldom, if ever, there and that they would not take a telephone message for her..." The CO denied certification and the Board affirmed. The Board found that Employer's statements were not only inconsistent with the applicants' statements, but also inconsistent with Employer's own statements. Noting that it is well settled that an employer's failure to produce documentation reasonably requested by the CO will result in a denial of alien labor certification, the Board found Employer's response to be inadequate. See John Hancock Financial Services , 91-INA-131 (June 4, 1992). Neil Clark , 95-INA-92 (Jan. 27, 1997).

Employers, apparel manufacturers, sought multiple certifications for the position of "duplicate maker" or "sample stitcher." The CO issued a NOF questioning whether the work was permanent and full-time, given that there seemed to be periods in which workers were forced to take leave without pay. The NOF requested documents related to payroll to demonstrate whether there were end-of-year shutdowns and Employers failed to provide them. Denying certification, the CO was affirmed by the Board. Citing Bijan Azadi & Assoc. , 94-INA-382 (Oct. 4, 1995) and Collectors International , Ltd. , 94-INA-382 (Dec. 14, 1989) the Board reasoned that employers must provide information related to end-of-year shutdowns reasonably requested by the CO and they failed to do so here. Top Sewing, Inc. and Columbia Sportswear , 95-INA-563 and 96-INA-38 (Jan. 28, 1997).

For the position of travel agency manager, Employer required fluency in Hindu, Punjabi, Arabic, and Urdu and also some understanding of Bengali and Gujratee. The CO in the NOF required Employer to demonstrate the total number "of clients/people" he dealt with and the percentage of those people who speak no English, the percentage of business dependant on the languages, the adverse impact on the business of absence of the language ability would have, the percentage of time the worker would use each of the languages, how the business up until now dealt with the languages, the services provided to other ethnic groups and how the language problem was handled, and any other documentation to show the necessity of the language requirements to the business. In rebuttal Employer stated that 99% of his clients speak Punjabi, Urdu, Hindu, Bengali, Gujratee and Arabic, that he used to, but can no longer, deal with these clients, that the requirement of these foreign languages was a business necessity, and not simply for his convenience, and that "without a manager who has complete knowledge of these languages I shall lose my business." The CO denied certification and the Board affirmed. Citing Remington Products, Inc., 89-INA-173 (Jan. 9, 1991) (en banc), the Board reasoned that failure to produce documentation reasonably requested by the CO warrants denial of certification. Here, Employer did not document the adverse impact that lack of these language skills would have on the business and why 6 languages were crucial for the position. Peak Time Travel and Tour, Inc. 95-NA-95 (Feb. 5, 1997). Grand Panda , 95-INA-04 (Aug. 30, 1996). 's>

C. Documents not easily obtainable

no new casenotes

D. Ostensible compliance with request

no new casenotes

III. Admissibility of hearsay, generally

no new casenotes

IV. Weighing of evidence, generally

The CO properly credited a former employer's written positive reference for a U.S. worker over the petitioning Employer's assertion of a verbal, negative reference. Moreover, where contradictory references are received from two prior employers, the CO properly credited the positive reference as it covered a longer period of employment and it was completed by the owner/manager of the business. The negative written reference was properly discredited as it was completed by Employer's attorney and covered a short time of employment. The Little Mermaid Restaurant , 90-INA-347 (Feb. 5, 1992).

A. Unsupported assertions

Labor certification denied where Employer failed to establish business necessity for an M.S. in Physics for the position of process engineer with a letter from its manager of the field process section. The panel found that the letter which contained unsupported assertions that other M.S. degrees would not be satisfactory and that this requirement is "not atypical for this specific industry" was insufficient to establish business necessity. Watkins-Johnson Company , 93-INA-544 (April 10, 1993).

Where an employer's statements contradict one another, greater weight may be given to the applicant's statements that are not contradictory. Jersey Welding, 93-INA-43 (Oct. 13, 1993). Where an employer offers no proof to support his contentions, burden remains with him, and the applicant was unlawfully rejected. Don Carlos Jewelry , 94-INA-441 (Jan. 25, 1996).

See also Masoom Kandahari, M.D. , 94-INA-540 (Mar. 1, 1996) (denying certification where Employer's justification for the business necessity of an .D. degree for the position of a medical researcher were Employer's general statements that laboratory work is done on the premises for cost savings, that a M.D. is required to assure the highest quality work, and that Employer has found that persons with 2-4 years of experience were not sufficiently qualified to do the job); High Class , 95-INA-17 (July 17, 1996) (finding no business necessity for Armenian where Employer stated that 95% of its customers speak Armenian and most speak no English, where Employer submitted an invoice written in English that showed a purchase from Armenian Teletime, and a subscription renewal notice from Armenian Life Weekly written part in English and part in Armenian, as well 13 invoices written in English sold to individuals with Eastern European sounding names, because without some supporting documentation , the statements by Employer are merely unsupported assertions); U.S. Dyeing & Finishing, Inc. , 95-INA-10 (Sept. 4, 1996) (denying certification where Employer attempted to establish the business necessity for a combination of duties with bare unsubstantiated assertions to the effect that the position in question is not common, is unique but is common in the dyeing industry, and that the company has suffered severe economic losses where persons are hired for the position with less than 2 years of experience); Boris Shmulevich , 95-INA-19 (Aug. 16, 1996) (finding that Employer failed to establish the business necessity of a 2 year requirement for the position of a child tutor where Employer's rebuttal stated that the CO had approved a similar application for certification and that his child requires the utmost attention and care in regards to his educational needs such that the requirement is required, because vague and unsupported assertions are inadequate to demonstrate business necessity); Holly's Bakery , 95-INA-20 (Aug. 22, 1996) (denying certification for the position of baker where Employer documented that Alien had 3 and one half years of the 4 required years of experience but did not substantiate its assertion that Alien worked as a baker in Chihuahua for 2 years which would have made him qualified for the position if substantiated).

Employer, a home cleaning service, applied for certification for the position of cleaning supervisor. Employer required ability speak Spanish and 2 years experience as a cleaner for the position. In the NOF proposing to deny certification on the grounds that the foreign language requirements was not a business necessity, the CO requested that Employer document the number of employees to be supervised and how many spoke no English, evidence to support the lack of English ability, the amount of time the employee would communicate in Spanish, whether Employer had ever hired non-English speakers in the past, and evidence that there were no alternatives to speaking Spanish. In response to the first question Employer argued without documentation that Alien would supervise 6 employees who speak Spanish always. Responding to the second request, Employer attached its application for employment, written in Spanish. In response to the fourth request, Employer submitted nothing. In response to the last request, Employer argued without documentation that hiring a Spanish-speaking supervisor would be the "only efficient way to supervise my Spanish-speaking employees..." The CO denied certification and the Board affirmed. Citing International World Immigration Service , 88-INA-490 (Sept. 1, 1989), the Board reasoned that Employer offered only written assertions and an application in Spanish to justify the business necessity of Spanish and "bare assertions without supporting reasoning or evidence" fails to carry an employer's burden. Metro Homes Services, Inc. , 95-INA-168 (Dec. 27, 1996).

Although a written assertion constitutes documentation 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. See Our Lady of Guadalupe School , 88-INA-313 (June 2, 1989). For the position of oriental specialty cook, Employer required familiarity with Korean dishes. Employer argued that although no Korean dishes were on the menu, it offered about 10 dishes off the menu its Korean clientele. Labor certification was properly denied because Employer offered no proof in support of this argument. Kim, Oh, Cho, Inc ., 94-INA-490 (Mar. 26, 1996).

Unsupported conclusions are generally insufficient to demonstrate that job requirements are supported by business necessity. See Inter-world Immigration Service , 88-INA-490 (Sept. 1, 1989). Employer failed to demonstrate the business necessity of a 2 year experience requirement for the position of vegetable farmer where in rebuttal it stated that "it is a small operation that cannot compete with large scale farms, and seeks instead to grow particular lettuce, a special bean, to find a niche market of "immigrant families yearning for particular products from their days in the old country." Employer also offered a list partial list of vegetables that it grew and a list of middle eastern products organically grown and regularly sought and a statement concerning the difficulties in growing South American crops. The Board reasoned that the statements do not describe the relationship between business necessity and the 2 year experience requirement. Addison Hall Farm , 94-INA-466 (Mar. 28, 1996).

Although a written assertion is 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. See , Inter-World Immigration Service , 88-INA-490 (Sept. 1, 1989). Employer's evidence consisted of bare conclusions that were not supported by any evidence or reasoning specific to the position being offered. Analysts International Corp. , 95-INA-131 (May 28, 1996).

Employer applied for certification for the position of cook - specialty Indian food in Employer's household. After the CO questioned whether the position was permanent and full-time, Employer rebutted, arguing that, "[b]ecause of our complex and busy work schedules, we have no time to cook for ourselves." Employer continued, arguing that the family is accustomed to Indian foods, does not eat fast food, and therefore has no choice but to hire a full-time cook. Employer last argued that her household has a "definite need for a full-time cook" and that, because they could afford it, there was nothing unusual in in "hiring a suitable person for the position." The CO denied certification and the Board affirmed. Citing Our Lady of Guadalupe School , 88-INA-313 (June 2, 1989), the Board noted that bare assertions, unsupported by documentation, are insufficient to carry an employer's burden of proof. Here, the Board reasoned that Employer had provided only general responses to some of the questions asked by the CO. It did not specify how many meals would be cooked daily and how many people would be eating. It appeared to the Board that Employer, her spouse, and the children were gone often during the day and that only the grandparents needed to be fed. Moreover, Employer had failed to document the entertainment schedule for the proceeding 12 months. Dr. Urvashi Kapoor , 95-INA-151 (Dec. 2, 1996).

Employer applied for certification for the position of machine technician/machine operator. The job duties included setting "up lathes and milling machines with CNC programming in order to operate..." machines, "[p]erform tool grinding,..." "test for hardness of metals; set up tooling, write test and analyze programs." Employer listed several special requirements, including a "[t]echnichal high school diploma specializing in machine operations and technology of machine operations...trigonometry and mechanical drafting, CNC programming...and metric system of weights and measures." With regard to the metric system, Employer stated that familiarity with it was necessary because clients wrote the specifications for the orders in the metric system. Employer argued that the trigonometry and mechanical drafting requirements were necessary when customers needed parts to be designed. Employer justified the other requirements but without supporting documentation. The CO denied certification and the Board affirmed. Citing Inter-World Immigration Service , 88-INA-490 (Sept. 1, 1989), the Board noted that unsupported conclusions are generally insufficient to demonstrate that certain job requirements are normal for a position or supported by business necessity. Here, the Board found that Employer offered written assertions as to the business necessity of some of the special requirements and therefore had inadequately documented the business necessity of the special requirements. Ridge Precision Products , 95-INA-149 (Nov. 22, 1996).

Employer applied for certification for the position of systems analyst. It required a bachelor's degree in engineering or computer science but also required the completion of at least one graduate course in 1) advanced topics in computer aided design, 2) computer graphics, 3) computational geometry. The CO denied certification after finding that the educational requirements were unduly restrictive and the Board affirmed. Citing Inter-World Immigration Service , 88-INA-490 (Sept. 1, 1989) (holding that a bare assertion without supporting reasoning or evidence is insufficient to carry an employer's burden of proof), the Board found that Employer failed to establish that the graduate courses were essential to performing in a reasonable manner the position's duties as required by Information Industries, Inc. , 88-INA-82 (Feb. 9, 1989) (en banc) (holding that justify an unduly restrictive job requirement, employers must establish that it bears a reasonable relationship to the job duties in the context of the employers' business and the requirement is essential to performing in a reasonable manner the job duties described by the employers). Analysts International Corp ., 95-INA-131 (May 28, 1996).

Employer applied for certification for the position of donut baker and required two years in the job offered or 2 years experience as a baker apprentice. The CO issued a NOF proposing to deny certification on the grounds 2 years experience either in the job offered or as a baker apprentice is restrictive and unrealistic given the normal range was 6 months of experience. The CO noted among other things that Alien received 2 years of experience as a baker for Employer. After receiving a rebuttal, the CO denied certification. Affirming the denial of labor certification, the Board cited Inter-World Immigration Service , 88-INA-490 (Sept. 1, 1989) (holding that a bare assertion without supporting reasoning is insufficient to carry an employer's burden of proof). It reasoned that Employer had only provided a 1 sentence statement of business necessity with the rebuttal and failed to directly address this issue and provide documentation. Dunkin Donuts , 95-INA-192 (Jan. 22, 1997).

Employer applied for certification for the position of Donut Baker and required 2 years in the job offered or 2 years experience as a baker apprentice. The CO issued a NOF proposing to deny certification on the grounds 2 years experience either in the job offered or as a baker apprentice is restrictive and unrealistic given the normal range was six months of experience. The CO noted among other things that Alien received two years of experience as a baker for Employer. After receiving a rebuttal, the CO denied certification. Affirming the denial of labor certification, the Board cited Tri-P's Corp. , 88-INA-686 (Feb. 17, 1989) (en banc) (holding that unsupported conclusions (ie. statements without explanation or factual support) are insufficient to demonstrate that job requirements are normal for a position or supported by business necessity). It reasoned that Employer had only provided a one sentence statement of business necessity with the rebuttal and failed to directly address this issue and provide documentation. Dunkin Donuts , 95-INA-192 (Jan. 22, 1997).

Employer sought labor certification for the position of travel agent and required 2 years of experience in the job offered and fluency in Urdu and Punjabi. The CO issued a NOF proposing to deny certification because the DOT required only six months to one year of experience, and the requirement of two foreign languages was unduly restrictive and not supported by evidence of business necessity. In rebuttal, Employer contended that two years experience was required due to the travel agencies' specialization in Islamic pilgrimage tours which required knowledge, not obtainable in 6 months to 1 year, of Saudi Arabian visa and health requirements. As for the 2 language requirement Employer offered to delete Punjabi as a requirement but contended that, since, 80% of its 300 monthly customers could not speak or had difficulty speaking English, and 70% of its business depended on Urdu, and the worker would use Urdu 70% of the time, and the president but not the two other employees spoke Urdu, then business would suffer from the presence of non-Urdu speaking employees. Employer furthermore submitted a list of its clients "who were clearly dependant on their language." The CO denied certification and the Board affirmed. Citing Gencorp , 87-INA-659 (Jan. 13, 1988) (en banc) the Board noted that a bare assertion without supporting reasoning or evidence was generally insufficient to carry Employer's burden of proof. Alfa Travel , 95-INA-163 (Mar. 4, 1997).

One basis for the rejection of a U.S. applicant for the position of "manager, gourmet food restaurant" was that the previous gourmet shop where the applicant worked was an Italian rather that American gourmet shop that "does not carry specific gourmet food items that are routinely stocked in this position." Because of this difference in experience Employer argued that Employee failed to meet the requirement of "receive and inspect gourmet food products, supervise in coming and outgoing orders, one year experience with a gourmet food market." The CO denied certification and the Board affirmed. The Board reasoned that Employer did not state what person in what position was contacted or how or when the contact was made. See Gencorp, 87-INA-659 (Jan. 13, 1988) (en banc) (holding that reasonably specific written assertions indicating their sources or bases are to be considered documentation). Eastern Farm, Inc./Delmonico Gourmet Food arket , 95-INA-101 (Feb. 7, 1997).

One basis for the rejection of a U.S. applicant for the position of "manager, gourmet food restaurant" was that a person identified only as "Abdul" at a limousine service where the applicant supervised 80 drivers told Employer that the applicant's attitude towards a number of drivers was "hostile," and he exhibited "arrogance," and that he did not take instructions from superiors well. The Board affirmed the CO's denial of labor certification because Employer inadequately documented the contact by not providing "Abdul's" full name, his position and how, when and under what circumstances contact was made. See Gencorp, 87-INA-659 (Jan. 13, 1988) (en banc) (holding that reasonably specific written assertions indicating their sources or bases are to be considered documentation). Eastern Farm, Inc./Delmonico Gourmet Food Market , 95-INA-101 (Feb. 7, 1997).

Neither the employer's account nor that of the applicants should, without question, be given more weight. Upon investigation of Employer's rejection of 7 applicants, the Board found it more likely that Employer was misstating the facts than that all of the applicants had done so. Freyer Collaborative Architects , 94-INA-546 (Oct. 31, 1996).

Neither the employer's account nor that of the applicants should, without question, be given more weight. Upon investigation of Employer's rejection of 4 applicants, the Board found it more likely that Employer was misstating the facts than that all of the applicants had done so. Jerry Lebedowicz , 94-INA-547 (Nov. 14, 1996).

B. Statements not capable of support by independent documentation

no new cases

C. Contemporaneous documentation

Employer failed to clearly establish, pursuant to 20 C.F.R. §656.20(c)(1), that it could pay the prevailing wage rate. Employer's profit and loss statement as well as its balance sheet revealed that the liabilities exceeded the assets and income. Soybean Health Foods Corp. , 90-INA-587 (Mar. 31, 1992).

D. Motivations of source

no new cases

1. Inappropriateness of preconceptions

no new casenotes

2. Allegation of fraud or willful misconduct

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 inappropriate to to allege, whether directly or by implication, that Employer is engaged in fraudulent conduct in attempting to gain certification. International Software Designs , 94-INA-376 (June 5, 1995). See also Aero-Dyne achine Co. , 95-INA-53 (July 18, 1996).

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

no new cases

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

no new cases

V. Treatment of particular evidence

no new casenotes

A. Company policy

no new cases

B. Confidential records

no new cases

C. Findings of CO in similar case

Labor certification was properly denied where Employer required four years experience and foreign language ability for a secretary position. Employer maintained that the CO's determination that one to two years experience was the maximum acceptable was unreasonable and, as documentation, submitted a copy of an approved labor certification application for a bilingual secretary with three years experience. The panel dismissed this argument stating that each labor certification application involves its own set of facts and issues and, therefore, "submission of another employer's approved application does not set any precedent to which the CO [or the Board] is bound." Paralegal Priorities , 94-INA-117 (Feb. 1, 1995).

Where Employer requires 2 years of experience for the position of child tutor even though the DOT recommends just 6 months to 1 year and where Employer justifies the experience requirement on the basis that the CO has in the past allowed 2 years of experience, then labor certification was properly denied because employers should not rely on prior decisions of the CO and Board is not bound by those decisions either. See Tedmar's Oak Factory , 89-INA-62 (Feb. 26, 1990). Mary Ann Emmons , 94-INA-227 (May 25, 1995).

Employer required 2 years experience for the position of "child tutor" even though the DOT required 6 to 12 months for the position. Employer justified its requirement both on the basis that a "2 year experience requirement for the position of child tutor had been approved previously by the CO for another employer" (therefore, such precedents had to be followed, Employer argued), on the basis that her children were young and, "in all probability," a person with less than 2 years experience would not be able to perform the required duties. The CO denied certification and the Board affirmed. Citing Bantam Collections, Inc. , 88-INA-428 (Feb. 21, 1990) (denying labor certification to an employer whose job requirements exceed the SVP time listed for the position in the DOT unless the Employer justifies the business necessity of the requirements), the Board reasoned that "submission of another employer's approved application does not set any precedent to which the CO or the Board is bound." See Paralegal Priorities , 94-INA-117 (Feb. 1, 1995); Tedmar's Oak Factory , 89-INA-62 (Feb. 26, 1990). In addition the Board held that Employer's assertion that 2 years experience was necessary because of the age of her children fell "short of establishing business necessity" because the DOT for the position of "child tutor" specifies no particular age group (therefore it applies to children of all ages). Stacey Casaluci , 95-INA-105 (Jan. 29, 1997).

D. Questionnaire responses

1. Admissibility

no new cases

2. Authentication

no new cases

3. Response places burden on employer to substantiate its assertion

Where an employer's statement that applicant refused position because the company was too small is contradicted by the applicant's own statement, the burden is on the employer to substantiate its own initial statement. Employer failed to meet its burden by relying on its unsubstantiated assertions made originally in rebuttal. Kim Kyung Nam - "LaFamilia" , 93-INA-97 (Jun. 5, 1994).

4. Probative weight; illustrative cases

When confronted with conflicting statement by Employer and U.S. applicant, the panel found applicant's statement that Employer failed to set up the interview more credible where that statement was more complete, detailed and consistent. Employer's statement offered no details regarding the interview and was inconsistent with the applicant's uncontroverted statement of interest in the position. Dr. Valerie Williams , 93-INA-217 (Sept. 15, 1994).

Unlawful rejection of U.S. workers established where follow-up questionnaires to five U.S. applicant's for the position similarly contradict Employer's asserted grounds for rejecting U.S. applicants. Jomar's Lighting , 94-INA-13 (Nov. 22, 1994).

Although an applicant's response to a questionnaire from the CO is not automatically entitled to greater weight than the employer's recruitment report, the panel nevertheless concluded that such an applicant's questionnaire was more credible "because it is more complete and detailed" whereas Employer "offered no details regarding the telephone conversation" and offered "inconsistent statements" in its recruitment report. Joseph General Electrical Contractor , 91-INA-173 (July 14, 1992). See also Morris Cleaners, Inc. , 93-INA-120 (Feb. 7, 1994) (holding that where there is direct contradiction between statements neither automatically entitled to greater weight and holding, however, submission of applicant's statement contradicting Employer's assertion does place burden Employer to substantiate its original declaration and mere repetition of original assertion does not meet this burden).

Citing Cathay Carpet Mills, Inc. , a panel held that "[q]uestionnaire responses are not per se unreliable; rather, an assessment of their reliability must be made in light of the circumstances." Moreover, "the CO may not assume that greater weight is to be given to the (U.S.) applicant's response." The panel concluded that the questionnaire at issue was set forth in the NOF and "[was] detailed and [was] entirely in narrative form, thereby adding some indicia of reliability." Metro Lift Truck Service, Inc. , 91-INA-344 (Feb. 1, 1993).

Questionnaire response from a U.S. worker that he felt he was qualified for the job was entitled to greater weight where Employer made contradictory statements in its recruitment report and rebuttal. Indeed, the panel noted that "Employer's statements on rebuttal, that the applicant's experience was outdated, were inconsistent with its recruitment report, that (the applicant) 'showed no sign' of having experience in the required systems." Thus, labor certification was properly denied. Messina Music, Inc. , 92-INA-357 (July 20, 1993).

Where employers and U.S. applicant have conflicting views of what transpired, the Board "generally" affords weight to the applicant. Robert B. Fry, Jr. 89-INA-6, (Dec. 28, 1989). However, CO may not rely solely on applicant's statement on questionnaire where questionnaire was sent 4 months after the recruitment process and did not identify which job the CO was inquiring about, and where Employer's statements regarding efforts to contact applicant were consistent and supported. Certification granted. Ruberto & Remedios Agaton - 94-INA-206 (May 25, 1995).

See also Diamond Foods , 95-INA-42 (Oct. 2, 1996) (placing greater weight on applicants' statements than on Employer's statements where Employer contended in rebuttal that he told no applicants that the position was filled, but where 2 applicants stated in the questionnaire that they were told the position was filled, where Employer delayed interviewing 1 applicant who repeatedly contacted Employer, where Employer noted the rejection of an applicant on the basis of lack of qualifications, but where the applicant denied that he was unqualified); Re/Max Reality Group , 95-INA-15 (July 19, 1996) (denying certification where an applicant stated on her questionnaire that she had called Employer and requested a return call to clarify several questions about the job opportunity, ie., about the requirement of bringing work authorization to the interview, but where Employer's counsel denies that the applicant called and claims she was uninterested).

E. Statements of counsel

Counsel's assertion that Employer sent U.S. applicants a letter requesting interview not sufficient to document good faith recruitment. API Industries Inc. , 93-INA-159 (Aug. 16, 1994). See also Jin Han Food Products Inc. , 94-INA-20 (Apr. 13, 1995) (holding that assertions by attorney explaining why Employer required foreign language not considered evidence); Wilton Stationers, Inc. , 94-INA-232 (Apr. 20, 1995) ("An attorney cannot execute a certificate of service if he did not mail or personally serve the document. An attorney cannot authenticate the business records of a client unless he is the custodian thereof. An attorney cannot testify about events unless he was present.").

Assertions by the mployer's counsel do not constitute evidence: Michael S. Sussman , 93-INA-200 (Aug. 17, 1993) (recruitment report); E. Davis, Inc. , 92-INA-277 (Aug. 4, 1993) (rejection of U.S. workers); LA Dye & Print Works, Inc. , 91-INA-393 (May 26, 1993); Michael J. Blake , 91-INA-394 (May 26, 1993); The Denture Office , 92-INA-213 (May 26, 1993); LA Dye & Print Works, Inc. , 92-INA-201 (Apr. 14, 1993) (unsupported assertions of alien's qualifications); Eduardo Alvarex , 92-INA-2 (Apr. 27, 1993) (attorney asserted that business necessity for live-in established); Esther Russak , 93-INA-185 (Sept. 30, 1993) (agent's assertions on behalf of employer); Lord Michel Originals, Inc. , 92-INA-164 (Mar. 16, 1993) (attorney reported recruitment results); Jersey Welding & Fence Co. , 93-INA-43 (Oct. 13, 1993); Antonio Bongioanni , 91-INA-104 (Sept. 1, 1992) (attorney sought to establish business necessity for Italian language requirement); La Barca Restaurant , 91-INA-15 (June 8, 1992) (attorney asserted infeasibility to train); Telesca-Heyman, Inc. , 91-INA-140 (May 14, 1992) (Denying certification where attorney sought to rationalize Employer's refusal to contact U.S. applicant); Multi-Fineline Electronix, Inc. , 91-INA-42 (Apr. 30, 1992) (attorney attempted to justify rejection of U.S. applicant); Pak Trading Co. , 90-INA-251 (Apr. 8, 1992) (denying certification where an attorney attempted to justify the rejection of two U.S. applicants); Mark Austin , 91-INA-158 (Mar. 26, 1992); Panache Management & Consulting , 90-INA-484 (Mar. 4, 1992); Emerson Electric Co. , 90-INA-486 (Feb. 19, 1992) (attorney attempted to justify rejection of U.S. applicant).

The FD was reversed and labor certification was granted where the CO's only basis for denial was that counsel, not Employer, signed and submitted rebuttal evidence in violation of 656.25(d)(1). The panel concluded that as Employer's representative, counsel is entitled to present argument and evidence on Employer's behalf in response to the NOF. oreover, because the rebuttal evidence was supported by a recruitment letter signed by Employer, it was not an unsupported assertion. La Roma Pizza , 93-INA-229 (April 8, 1994).

Some qualifications, good references being one, are so inherently requisite for a job that they not be stated expressly in the job description. See Alfredo's Restaurant #2 , 90-INA-70 (June 12, 1991). Here, an applicant submitted what appeared to be a highly favorable reference. Nonetheless, Employer rejected him, saying in an unsigned document that he was unable to contact references. Employer's counsel additionally stated that one reference said he could not give a positive character reference for the applicant and stated that Employer "learned specifically that the applicant was not willing to take instructions" and "often performed his duties disregarding his employer's wishes." The Board held that Employer's counsel's statements were inadequate to overcome the written favorable reference submitted by the applicant. See Moda Linea, Inc. , 90-INA-424 (Dec. 11, 1991). Androscoggin Jr. - Sr. Camp for Boys , 94-INA-216 (Nov. 3, 1995).

Assertions by Employer's attorney that are not supported by the underlying statement of a person with knowledge of the facts, do not constitute evidence. See Moda Lina, Inc. , 90-INA-424 (Dec. 11, 1991). Employer's counsel questioned the authenticity of 2 reference letters submitted by an applicant. The letters had the numbers of the references. Labor certification was properly denied because the counsel could have called the references and because his concerns about the authenticity were pure speculation. Sarah and Norman Jaffe , 94-INA-513 (Oct. 30, 1995). See also Re/Max Reality Group , 95-INA-15 (July 19, 1996) (refusing to consider as evidence statements by counsel to the effect that an applicant never made a second call to Employer as claimed and that the applicant was not interested in the position because she already had lucrative employment); Cine Video Corp. , 95-INA-50 (Sept. 25, 1996) (denying certification where Employer's counsel stated the a position was full time and permanent but where Employer's president sent a note to the CO stating that Alien was offered a temporary, one year position which indicated lack of full-time employment because the president's statements are afforded greater weight because they were made by a person with knowledge); Lori Gusky , 94-INA-518 (Aug. 1, 1996); Livia Helmer Shechtman, M.D. , 94-INA-543 (Feb. 22, 1996); Holiday Restaurant and Club , 94-INA-390 (June 16, 1995); Wong's Palace Chinese Restaurant , 94-INA-410 (Oct. 12, 1995).

Post-application recruitment results written by the employer's attorney does not constitute evidence. See Hi Lume Corp. , 90-INA-444 (Mar. 4, 1992). The Board distinguished this case on the basis that the recruitment report was signed by Employer and thereby adopted by Employer as its own version of dealings with the U.S. applicants. Bimbo Bakery , 94-INA-436 & 437 (July 14, 1995).

An attorney cannot testify about events unless he was present. See Wilton Stationers, Inc. , 94-INA-232 (Apr. 20, 1995). The Board distinguished this case on the basis that the recruitment report was signed by Employer and thereby adopted by Employer as its own version of dealings with the U.S. applicants. Bimbo Bakery , 94-INA-436 & 437 (July 14, 1995).

Citing Modular Container Systems, Inc., 89-INA-228 (July 16, 1991) (en banc), a panel held that, absent extraordinary circumstances, employer's counsel cannot act as a fact witness to document the recruitment efforts of his or her client. Hi Lume Corp. , 90-INA-444 (Mar. 4, 1992).

Rebuttals provided by an attorney do not constitute evidence if they are not supported by underlying statements of a person with knowledge. See Hupp Electric otors, Inc. , 90-INA-478 (Jan. 30, 1992). Employer applied for certification for the position of import export agent. The CO challenged Employer's designation, instead calling the position a foreign clerk. Employer's counsel indicated in rebuttal that the job involves the supervision of approximately 15 other workers (which would prove that it is an import export agent). The application, however, indicated that the position involved supervising no workers. Lee International Corp. , 94-INA-413 (Oct. 12, 1995).

Employer sought certification for the position of live-in home attendant. Employer rejected 6 applicants either due to their alleged unwillingness to work or disqualification based on their citizenship/residence status. However, the CO independently contacted the six applicants, all of whom independently denied having been contacted by Employer. In addition, the six applicants denied Employer's factual basis for having rejected them. Employer rebutted with statements from its attorney. The CO denied certification on the basis of lack of good faith recruitment and the Board affirmed. Citing Modular Container Systems, Inc. , 89-INA-228 (July 16, 1991) (en banc), API Industries, Inc. , 93-INA-159 (Aug. 16, 1994), Michael S. Sussman , 93-INA-200 (Aug. 17, 1993), E. Davis, Inc. , 92-INA-277 (Aug. 4, 1993), Hupp Electric Motors, Inc. , 90-INA-478 (Jan. 30, 1992), and Modea Linea, Inc. , 90-INA-424 (Dec. 11, 1991), the Board noted that assertions by an employers' attorney unsupported by underlying statements made by a person with knowledge are not evidence. Here, the Board found sufficient documentation including reports of recruitment signed by Employer. Mrs. Marion Matros for Hilde Isreal , 95-INA-147 n.2 (Dec. 23, 1996) (dictum).

Employer, a bakery, applied for certification for the position of Master Jeweler/Engraver. Special requirements for the position were, among other things, fluency in Arabic and Turkish. The CO issued a NOF, questioning Employer's documentation of the business necessity of the foreign languages. In rebuttal, Employer's counsel stated that 50% of its clients spoke only Arabic or Turkish and in "a business such as ours..., it is a necessity to have a jeweler or jewelry designer who can communicate clearly with the client." The CO denied certification. Citing Modular Container Systems, Inc. , 89-INA-228 (July 16, 1991) (en banc) (holding that assertions by an employer's attorney that are not supported underlying by a person with knowledge of the facts, do not constitute evidence), the Board affirmed. The Board reasoned that rebuttal included no underlying statements of a person with knowledge. Nouri's Syrian Bakery, Inc. , 95-INA-191 (Dec. 19, 1996).

Employer sought alien labor certification for the position of "auto mechanic." The CO in the NOF requested Employer to justify the business necessity for requiring a combination of duties as both a refrigerator mechanic and an auto mechanic. The CO specifically requested that Employer document how many auto mechanics worked for Employer at the time Alien was trained, how many auto mechanics worked for Employer presently (besides Alien), who trained Alien, the change in the total work force and annual volume of business from the time Alien was hired and trained and present, and why a company that expanded considerably since Alien was trained had not proportionately developed the ability to train now (which the CO noted was customary with growth and development). In rebuttal to the NOF, Employer's counsel submitted a letter detailing why Employer needed Alien rather than a U.S. worker. The letter did not give the name of the person who trained Alien, the change in the total work force and annual volume of business from the time Alien was hired to present, and why a company which expanded has not developed proportionately the ability to train now. The CO denied certification and the Board affirmed. The Board reasoned that there was no underlying documentation to support the counsel's statements and it is well established that assertions by an employer's attorney that are not supported by the underlying statements by a person with knowledge of the facts do not constitute evidence. Marina Ice Cream Company , 95-INA-93 (Jan. 27, 1997).

Although rebuttal information must be provided by the employer, not his attorney, when the employer is totally physically disabled it is reasonable for the attorney to respond on behalf of the employer. Jacob Breakstone , 94-INA-534 (Aug. 1, 1996) .

F. Technical matters

If the job offered involves technical requirements, the employer carries the burden to present understandable evidence to the reviewing official. Emerson Electric Co. , 90-INA-486 (Feb. 19, 1992).