BALCA Benchbook - Chapter 27 Supplement (January 1997) | U.S. Department of Labor

Judges' Benchbook: Alien Labor Certification

Office of Administrative Law Judges
United States Department of Labor

Second Edition - May 1992

CHAPTER 27 - SUPPLEMENT

Supplement current through January 1997

SPECIAL HANDLING CASES

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TABLE OF CONTENTS

I. Occupations designated for special handling

A. College or university teachers; aliens represented to have exceptional ability in the performing arts
B. Aliens working as nonimmigrant sheepherders

II. Requirement that U.S. applicant be at least as qualified as the alien

A. Regulatory provision
B. Application of test to elementary and secondary school teachers

III. "More qualified" standard

A. Regulatory provision
B. Requirement that alien be more qualified than each U.S. applicant
C. Illustrative cases; alien not shown to be more qualified

IV. Option to seek certification under § 656.21

I. Occupations designated for special handling

A. College or university teachers; aliens represented to have exceptional ability in the performing arts

College or University Teachers Requirement that application for permanent alien labor certification for college/university teachers be filed within 18 months after a selection is made (656.21a(a)(1)(iii)(E)) is met when the employer files an application 18 months after the applicant receives H-1B status when the employer indicates that the applicant would not have been hired without receiving H-1B status. Montgomery College , 94-INA-584; 94-INA-585 (Jul. 18, 1996).

B. Aliens working as nonimmigrant sheepherders

II. Requirement that U.S. applicant be at least as qualified as the alien

A. Regulatory provision

B. Application of test to elementary and secondary school teachers

In a unanimous decision, the full Board held that the Special Handling provisions at 29 C.F.R. 656.21a and the "equally qualified" standard at 29 C.F.R. 656.24 apply only to college and university teaching positions. The Board found a conflict between the regulations and the Immigration and Nationality Act, which does not specifically limit application of these provisions to college and university teachers. Nonetheless, because the Board is a non-Article III court without express or implied authority to rule on the validity of a regulation, it is without authority to overrule a regulatory provision, and the Special Handling provisions must be given effect as written. Accordingly, the alien in this case, a secondary school teacher, cannot avail himself of the Special Handling provisions. Dearborn Public Schools , 91-INA-222 (Dec. 7, 1993) ( en banc ).

III. "More qualified" standard

A. Regulatory provision

B. Requirement that alien be more qualified than each U.S. applicant

C. Illustrative cases; alien not shown to be more qualified

An employer must document why the alien is more qualified than each U.S. applicant. This burden is not sustained merely through a showing that the alien is highly qualified. Moreover, the employer cannot select what it feels are the most qualified U.S. applicants and exclude the remaining applicants from consideration. Failure to address each U.S. applicant's qualifications precludes a meaningful review. Stanford University , 91-INA-40 (Mar. 10, 1991).

IV. Option to seek certification under § 656.21