Judges' Benchbook: Alien Labor Certification

Office of Administrative Law Judges
United States Department of Labor

Second Edition - May 1992

CHAPTER 32 - SUPPLEMENT

Supplement current through January 1997

UNDULY RESTRICTIVE JOB REQUIREMENTS/ BUSINESS NECESSITY

Return to Main Text I to VI .
Return to Main Text VII to VIII .
Return to Main Text IX to X .
TABLE OF CONTENTS

I. Overview and purpose

II. Regulatory provision

III. Preliminary finding that requirement is unduly restrictive

IV. Challenge to job itself

V. Business necessity, generally

VI. Foreign language requirements

VII. Combination of duties

VIII. Live-in requirements

IX. Other requirements

X. Employer's preference as a requirement

I. Overview and purpose

See Modern Medical Labs, Inc. , 94-INA-121 (Apr. 16, 1996); Francis Kellogg , 94-INA-465 (Jan. 13, 1997); Boris Shmulevich , 95-INA-19 (Aug. 16, 1996); High Class , 95-INA-17 (July 17, 1996); Kim, Oh, Cho, Inc ., 94-INA-490 (Mar. 26, 1996).

Employer required a split-shift and six-day work week which was normally not required for performance of the job in the United States which made the requirement unduly restrictive. The reason unduly restrictive requirements are prohibited is that they have a chilling effect on the number of U.S. workers who may apply for or qualify for the job opportunity. The purpose of § 656.21(b)(2) is to make the job opportunity available to U.S. workers. Rajwinder Kaur Mann , 95-INA-328 (Feb. 6, 1997).

The purpose of § 656.21(b)(2) is to make the job opportunity available to qualified U.S. workers. See Venture International Assoc., Ltd. , 87-INA-659 (Jan. 13, 1989) ( en banc ). Super Super, Inc ., 94-INA-604 (Aug. 29, 1995).

Employer had applied for certification for the position of live-in cook. In the NOF the CO requested Employer to demonstrate the need for the live-in requirement by documenting, among other things the Employer's entertainment schedule. The CO denied certification, and the Board affirmed. The Board reasoned that Employer had not provided the entertainment schedule but instead indicated that no entertaining during the week was contemplated. Employer also did not know how long the food preparation would take and did not justify the need for 3 meals a day, all of which (including breakfast) were described as needing soup and appetizers. Further, Employer failed to explain the need for lunch when both she and her husband would have to travel 60 blocks daily to eat at home; and the Employers work day ended at 6:00 p.m. "which would allow a cook adequate time to prepare supper even after arriving late in the afternoon." Mrs. Dana Embroz , 95-INA-293 (Dec. 2, 1996) ( citing Venture International Assoc., Ltd. , 87-INA-659 (Jan. 13, 1989) (explaining that the purpose of § 656.21(b)(2) is to prohibit unduly restrictive job requirements unless business necessity is found in order to make job opportunities available to U.S. workers)).

Employer applied for certification for the position of custom hand wood turner and required 3 years of experience. The CO issued a NOF questioning the business necessity of 3 years of experience when the normal requirement was 6 months to 1 year. In rebuttal, Employer argued that 6 months experience would be adequate for a lathe operator but not for the position offered. Affirming the CO's denial of labor certification, the Board compared the position for which certification was applied against that of a lathe operator found in the DOT. The Board noted that "virtually all the of the duties listed by the Employer are included in the job description ... for a lathe operator." Mohamad Wood Turning, Inc. , 95-INA-309 (Feb. 6, 1997).

II. Regulatory provision

no new cases

III. Preliminary finding that requirement is unduly restrictive

A. In general

Where Employer rejected qualified U.S. applicants for not meeting requirements that the CO determined to be unduly restrictive, then denial of certification was proper because Employer unlawfully rejected the applicants. Red Jacket Orchards, Inc ., 94-INA-133 (July 17, 1995).

See also Modern Medical Labs, Inc. , 94-INA-121 (Apr. 16, 1996); Francis Kellogg , 94-INA-465 (Jan. 13, 1997).

Employer may not require greater experience than is listed DOT unless it establishes the business necessity of such requirements. Here, Employer required 2 years of experience for the position of child tutor even though the DOT allowed for just 6 months to 1 year. Employer made no effort to document business necessity and failed to delete the requirements. Mary Ann Emmons , 94-INA-227 (May 25, 1995).

Employer may not require greater experience than is listed in the DOT for that job unless Employer is prepared to show business necessity. Where Employer does not delete requirements, does not establish business necessity, and does not show that such combination of duties is normal, then certification was properly denied. West Wilshire Medical Center , 94-INA-225 (June 27, 1995).

If the job requirement or duty falls within the DOT, then it is not unduly restrictive and no showing of business necessity is required. See Ivy Cheng , 93-INA-106 (June 28, 1994). For the position of bookkeeper, Employer required either 2 years of experience or a 4 year degree in business administration. The Board reversed the determination that the requirement was unduly restrictive because 4 years of college is considered the equivalent of 2 years of experience, because even though the 4 year alternative may be tailored to the Alien, it nonetheless broadens the pool of available applicants and because the alternative requirement was related to position at issue. Broadway Hats and Caps, Inc ., 94-INA-460 (Feb. 26, 1996).

If the job is contained in the DOT, the requirements cannot be more restrictive than those detailed therein for the position unless business necessity is established. See Approach, Inc. , 90-INA-293 (Oct. 30, 1991). Employer required 2 years of experience for the position of sewing machine operator even though the normal requirement was 3 to 6 months. Certification was denied because Employer argued only that the position was that of a tailor rather than a sewing machine operator, a contention rejected by the Board. H. Oritsky Inc ., 94-INA-95 through 102, (May 26, 1995).

Employer applied for certification for the position of mechanical engineer and required a Master's Degree in Mechanical Engineering plus 2 years of experience in the job offered. The CO issued a NOF proposing to deny certification on the basis that the Master's Degree was unduly restrictive. The NOF instructed Employer to either reduce the requirements and re-advertise or document the business necessity of the requirement by showing that the degree requirement was normal in the industry and with Employer. In rebuttal, Employer argued, inter alia , that the total years of preparation for the position, including the aster's Degree was 6 years while the SVP range was 4 to 10 years such that the its requirements cannot be seen as unduly restrictive under § 656.21(b)(2)(i)(B). See Polytechnic University , 88-INA-282 (Oct. 26, 1989); Ankitson Development Corp. , 88-INA-452 (Jan. 3, 1990); Ibes, Inc. , 89-INA-187 (July 23, 1990). The CO denied certification. On appeal, the Board held that a correct reading of § 656.21(b)(2)(i) reveals that employers must meet all subsections (A, B & C) and not just one of them in order not to be unduly restrictive. In the instant case, the Board interpreted the CO to have meant when labeling the M.A. requirement as unduly restrictive that the requirement "is not normally required for the job in the United States in violation of § 656.21(b)(2)(I)(A)." However, the Board noted that the CO should have allowed Employer to rebut by showing that the degree is normally required in the United States because, if so, no business necessity would need to be established. Moreover, the Board held that the CO's instruction to prove business necessity by showing that normalcy of the M.A. requirement in the U.S. "confuses the issue of whether the Employer is in compliance with § 656.21(b)(2)(I)(A)." The Board remanded the case to allow the CO to correct the errors. Sidhu Assoc., Inc. , 95-INA-182 (Jan. 2, 1997).

Where Employer required a M.S. degree in Computer Science for the position of systems analyst, and where Employer conceded that experience in the programming skills it required can be substituted for education, and where Employer required knowledge of IBM 36 , and where the Alien acquired knowledge of that system through a course offered by Employer that was not made available to U.S. workers, then the Alien labor certification was properly denied because Employer must document that its job requirements are those normally required for the performance of the position in the United States and as defined for the job in the DOT or document that the requirements arose from business necessity. Wings Manufacturing Corp. , 95-INA-98 (Jan. 27, 1997).

1. Normal requirement in the U.S.

The CO utilized an erroneous standard for determining whether job requirement was unduly restrictive. The panel remanded the case upon holding the following:

[A]n employer need only show that it requires normal qualifications for its job. The employer is not required to show that no other combination of education, training, and experience would qualify a worker for the job.

Babtech Enterprise Co. , 91-INA-228 (Oct. 5, 1992).

Denial of labor certification was proper where Employer's position required teaching Chinese language and literature combined with piano proficiency and teaching music and singing which were not requirements normally required for the job of tutor in the United States. Steven Yang , 94-INA-407 (June 7, 1996). See also Modern Medical Labs, Inc. , 94-INA-121 (Apr. 16, 1996); Basam & Fadia Waw , 94-INA-378 (June 22, 1995).

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 6 months to 1 year of experience, and the requirement of 2 foreign languages was unduly restrictive and not supported by evidence of business necessity. In rebuttal, Employer contended that 2 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 2 other employees spoke Urdu, then business would suffer from the presence of another non-Urdu speaking employee. Furthermore, Employer submitted a list of its clients "who were clearly dependant on their language." 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 insufficient to demonstrate that job requirements are supported by business necessity. It reasoned that while Employer's statement that it was different from other agencies in that it sold Islamic pilgrimage tours describes its business, it nonetheless failed to address the reasons for 2 years of experience when the normal requirement was 1 year or less. Alfa Travel , 95-INA-163 (Mar. 4, 1997).

2. DOT specifications

The CO's denial reversed and certification granted for the position of horse trainer/roper instructor. The panel found that the CO's classification of the position as "Farmworker, livestock" was incorrect. The more suitable classifications were either or both "Instructor, sports" and "horse trainer". Under both of these classifications, the job requirement of four years of experience is acceptable. WDC Corporation , 93-INA-457 (Jul. 26 1994).

Denial of labor certification affirmed where the CO correctly concluded that job duties described fall into the DOT category of Janitor, requiring one to three months experience. Employer's one year experience requirement was properly deemed unduly restrictive. Friendly Acres Motel , 93-INA-245 (Nov. 29, 1994).

The fact that Employer's classification under the DOT included two job duties was not controlling when another DOT classification matched the job description in every other way. Second classification controlled. J-Art Company, Inc ., 94-INA-230 (Aug. 29, 1995).

Employer may not require any more strict requirements than are listed in the DOT classification for the job. Approach, Inc. , 90-INA-293 (Oct.. 30, 1991). Artcraft Blazers , 94-INA-269 (Jul. 26, 1995).

Where DOT does not include one year of college in the requirements for a job, but Employer refuses to delete the requirement and does not establish business necessity for the requirement, certification was properly denies. Employer has duty to provide specific examples of how the requirement is tailored to or necessary to the job function. Berry Paving & Concrete Const. Co. , 94-INA- 464 (Mar. 6, 1996).

Where job duties actually reflect one job description rather than another, the first job will be considered the actual job position, and an employer cannot require experience that reaches the erroneous job listing, but not the true job position. Richard Lum , 94-INA-219 (June 27, 1995).

Where Employers's description of a job is most closely associated with another DOT title, the CO properly identified that job title as the new job in question. Where employer has been repeatedly advised that it was misclassifying its listed position, it will be held an unduly restrictive job requirement and certification will be denied. An employer may not require job restrictions that relate to the other , erroneous, DOT classification. Hardee's , 94-INA-218 (Jun 27, 1995).

Employer applied for certification for the position of Machine Repairer. The CO found that Employer's description of the position copied nearly verbatim the position description in the DOT. The CO reasoned that the DOT is merely intended as a guide and should not be "all encompassing." Instead, the CO stated that the job description should be reflective of the actual position as it is normally performed. After the CO denied certification, the Board reversed. Citing Section 656.21(b)(2), it noted that the regulations' requirements are satisfied so long as employers add no requirements to the specifications in the DOT. The Board noted that the regulations are concerned with the requirements being in accordance with what is normal for the occupation, and not what is normal for a particular employer's business. In general, the requirements for the actual position at issue in a matter come into play only to test requirements that differ from the requirements in the DOT. Imperial Foods, Inc. , 95-INA-120 (Jan. 28, 1997).

Employer applied for certification for the position of mechanical engineer and required a Master's Degree in Mechanical Engineering plus 2 years of experience in the job offered. The CO issued a NOF proposing to deny certification on the basis that the Master's Degree was unduly restrictive. The NOF instructed Employer to either reduce the requirements and re-advertise or document the business necessity of the requirement by showing that the degree requirement was normal in the industry and with Employer. In its rebuttal, Employer argued, inter alia , that the total years of preparation for the position, including the aster's Degree was 6 years while the SVP range was 4 to 10 years such that the its requirements cannot be seen as unduly restrictive under § 656.21(b)(2)(i)(B). See Polytechnic University , 88-INA-282 (Oct. 26, 1989); Ankitson Development Corp. , 88-INA-452 (Jan. 3, 1990); Ibes, Inc. , 89-INA-187 (July 23, 1990). The CO denied certification. On appeal, the Board held that a correct reading of § 656.21(b)(2)(i) reveals that employers must meet all subsections (A, B & C) and not just one of them in order not to be unduly restrictive. In the instant case, the Board interpreted what the CO meant when labeling the M.A. requirement as unduly restrictive, as meaning that the requirement "is not normally required for the job in the United States in violation of § 656.21(b)(2)(i)(A)." However, the Board noted that the CO should have allowed Employer to rebut by showing that the degree is normally required in the United States because, if so, no business necessity would need to be established. Moreover, the Board held that the CO's instruction to prove business necessity by showing the normalcy of the M.A. requirement in the U.S. "confuses the issue of whether the Employer is in compliance with § 656.21(b)(2)(i)(A)." The Board remanded the case to allow the CO to correct the errors. Sidhu Assoc., Inc. , 95-INA-182 (Jan. 2, 1997).

B. Evidentiary and procedural matters

1. Requirement that employer identify its requirements on ETA 750A

Where Employer rejects several U.S. applicant for the position of landscape gardener on the basis that they lack experience in tree pruning or in installation and maintenance of sprinkler systems, then labor certification was properly denied because Employer failed to list those requirements on the ETA 750A or in advertisements for the position and because the DOT for Landscape Gardener, on which the ETA 750A and advertisements were based verbatim, contained no requirement for such a position. Ernie Vejar Landscape aintenance , 94-INA-189 (July 19, 1995).

Where Employer for the position of sewing machine operator posted a job notice that required fluency in Korean but where this requirement was not listed on the ETA 750A, then labor certification was properly denied because Employer failed to comply with the posting requirements. Sung Sportswear , 94-INA-235 through 94-INA-239 (May 26, 1995).

Employer sought labor certification for the position of set designer for which Employer required an M.F.A. with "Technical Design and Production" as the major field of study. A U.S. applicant for the position possessed a B.A. with a concentration in Design and Technical Production and an M.F.A. in Theater Arts, with a concentration in scenic lighting and design, an advanced study master class in technical production with the Cologne Opera, had been the technical director of over 75 productions, and had won an award for technical excellence on 2 separate occasions. Employer rejected the applicant, arguing that he did not have the "required engineering education to prepare the necessary working drawings, ... that the set designer position we are looking to fill is in stage automation design and not in scenery and lighting design, ...[and that] the job opportunity requires specific technical design and production knowledge." The CO denied labor certification and the Board affirmed. It reasoned that Employer did not recruit in good faith since Employer did not list any "specific engineering education in its requirements stated on the ETA 750 form..." and did not list any "specific technical design and production knowledge" as a requirement for the job opportunity. Instead, Employer "specifically lists in the duties, `provide technical support for theatrical set designs,' and therefore his statement that the position is `for stage automation design and not scenery and lighting design' appears disingenuous." See Jeffrey Sandler, M.D. , 89-INA-316 (Feb. 11, 1991) ( en banc ). Showtech, Inc., 95-INA-315 (Feb. 11, 1997).

For the position of vice president and general manager a marketing and management consulting firm required an MBA and 10 years of experience. Employer on the ETA 750A required only a high school education but in its advertisement for the position it required an BA. The Board found that certification was improperly denied because "it [is] difficult to understand why any employer for a position of the level in the instant case would want applicants to have only a high school education," and it "is obvious that the omission of the MBA requirement was a harmless error." Merchantmen International , 95-INA-106 (Sept. 25, 1996).

Employer rejected a U.S. applicant because he lacked knowledge of "hydraulic power pack water recycle [sic] system," and its rebuttal to the NOF failed to address the issue of why this requirement was not stated in the original application or advertising. Instead Employer asserted that it had the applicant interviewed by an outside party who found the applicant unqualified. The Board found that the applicant was rejected unlawfully because Employer failed to state all of its requirements in the original application for labor certification or the advertising for the position. Valley Gas Company , 95-INA-291 (Dec. 19, 1996).

2. Correction of restrictive requirement during rebuttal

no new cases

3. Rejection on lawful grounds does not cure unduly restrictive requirement

no new cases

IV. Challenge to job itself

no new cases

V. Business necessity, generally

A. The regulation

Once a job requirement is challenged by the CO as not being normally required for the job or within the DOT, the burden shifts to the employer to establish business necessity. See Escalen Institute Soviet American Exchange Program , 92-INA-401 (Dec. 28, 1994) ( en banc ). Employer, in the textile business, required 2 years of experience in children's clothing for the position of sample maker, children's clothing. Although the DOT listed 2 years of experience as an acceptable requirement for the position of sample maker, it had no classification for sample maker, children's clothing. The Board affirmed the CO's denial of labor certification. Florinda Fashions, Inc ., 94-INA-458 (Oct. 13, 1995). See also Wong's Palace Chinese Restaurant , 94-INA-410 (Oct. 12, 1995).

B. Information Industries test

Failure to establish business necessity for an unduly restrictive job requirement will result in the denial of labor certification. Robert Paige & Associates, Inc. , 91-INA-72 (Feb. 3, 1993); Shaolin Buddhist Meditation Center , 90-INA-395 (June 30, 1992).

Certifying Officer's determination that Employer's requirement that a housekeeper have three months experience in preparing Filipino food was unduly restrictive was sustained because Employer failed to establish a business necessity for such a requirement. The Information Industries standard was applied. Since the family was from the Philippines, and only wished to eat their native food, there was a reasonable relationship to the occupation. However, the three months experience requirement was not shown to be essential to the performance of the job. No arguments were made or evidence provided regarding the nature or complexity of Filipino cooking. Employer did not show why it could not train a person to cook Filipino food. Teresita Tecson , 94-INA-14 (May 30, 1995).

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 the experience is required because the child requires the utmost attention and care in regards to his educational needs); Modern Medical Labs, Inc. , 94-INA-121 (Apr. 16, 1996).

The Board held that Employer failed to establish business necessity for a live-in requirement for the position of live-in domestic when Employer stated in rebuttal that they have "lengthy and irregular work schedules, frequently entertain business associates/prospective buyers in the evening `at home and away from home,' regularly travel, and have experienced problems with day workers failing to report for various reasons including fear of traveling late in the evening, the live-in requirement is necessary `in order to continue putting in the long hours required by our occupations with the assurance that out home is properly being taken care of..." Employer failed to provide any specific entertainment and volunteer work schedules, giving details, even though Employer did submit some material with the request for review and after the rebuttal deadline passed. Mr. and Mrs. Robert H. Blumberg , 94-INA-244, (July 19, 1995).

The Board established the standard for business necessity in Information Industries, Inc. , 88-INA-82 (Feb. 9, 1989) ( en banc ) (holding that to establish business necessity an employer must establish that the requirement bears a reasonable relationship to the occupation in the context of the employer's business and that the requirement is essential to performing in a reasonable manner the job duties as described by the employer). Employer's evidence consisted of bare conclusions that were not supported by any evidence or reasoning specific to the position being offered such that business necessity was not established. Analysts International Corp. , 95-INA-131 (May 28, 1996).

Employer has the burden of proof to provide requested documentation to establish that a business necessity exists for job requirements that are not usual for the occupation. Millenium Construction, Inc. , 94-INA-557 (Aug. 5, 1995).

Where Employer fails to show that a requirement is essential to performing the job in a reasonable manner, Employer has failed to prove that the requirements are not unduly restrictive. See Information Industries , 88-INA-82 (Feb. 9, 1989). Employer required experience in either metallurigal engineering or energy for the position of quality control supervisor but failed to demonstrate their necessity, given that those requirements were not listed in the ETA 750A or the advertising for the position. Sharp Screen Supply, Inc. , 94-INA-214, (May 24, 1995).

The business necessity standard enunciated in Information Industries , 88-INA-82 (Feb. 9, 1989) ( en banc ), is applicable to foreign language requirements when an employer contends that a foreign language requirement is justified by its plan to expand into new foreign markets. Trim Aire Aviation, Inc. , 95-INA-396 (Dec. 4, 1996).

The Board established the standard for business necessity in Information Industries, Inc. , 88-INA-82 (Feb. 9, 1989) ( en banc ) (holding that to establish business necessity an employer must establish that the requirement bears a reasonable relationship to the occupation in the context of the employer's business and that the requirement is essential to performing in a reasonable manner the job duties as described by the employer). Employer required 2 years of experience for the position of sewing machine operator even though the normal requirement was 3 to 6 months. Certification was denied where Employer's only argument was that the position was that of a tailor rather than a sewing machine operator, a contention rejected by the Board. H. Oritsky Inc ., 94-INA-95 through 102, (May 26, 1995).

Employer failed to sustain its burden of proving business necessity for a 2 year experience requirement for the position of import clerk. See Information Industries, Inc. , 88-INA-82 (Feb. 9, 1990) ( en banc ). Employer had filed originally for import agent but the Board rejected this classification and labeled the position as an import clerk. The 2 year experience requirement was therefore unduly restrictive and its business necessity not established. Lee International Corp. , 94-INA-413 (Oct. 12, 1995).

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 or 3) computational geometry. The CO denied certification after finding that the educational requirements were unduly restrictive and the Board affirmed. It noted that the SVP range found in the DOT for a systems analyst was 2 to 4 years. Given this range, requiring course work at a level higher than the 4 year bachelor's degree was unduly restrictive. Continuing, the Board cited Information Industries, Inc. , 88-INA-82 (Feb. 9, 1989) ( en banc ) (holding that to justify an unduly restrictive job requirement, employers must establish that it bears a reasonable relationship to the job duties in the context of the employer's business and the requirement is essential to performing in a reasonable manner the job duties described by the employer). The Board found that the graduate courses bore a reasonable relationship to Employer's business, however, Employer failed to establish that the graduate courses were essential to performing, in a reasonable manner, the position's duties. The Board noted that Employer merely provided general background information about itself and failed to justify the need for the course work. Analysts International Corp ., 95-INA-131 (May 28, 1996).

The Board defined how an employer can show business necessity in Information Industries, Inc. , 88-INA-82 (Feb. 9, 1989) ( en banc ) (mandating that employers show that a requirement bears a reasonable relationship to the occupation in the context of the employers business and that the requirement is essential to performing in a reasonable manners the job duties as described by the employer). 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).

In order to establish business necessity an employer must demonstrate that the job requirements bear a reasonable relationship to the occupation in the context of the employer's business and are essential to perform in a reasonable manner the job duties as described by the employer. See Information Industries, Inc. , 88-INA-82 (Feb. 8, 1989) ( en banc ). Employer, in the textile business, required 2 years of experience in children's clothing for the position of sample maker, children's clothing. Although the DOT listed 2 years of experience as an acceptable requirement for the position of sample maker, it had no classification for sample maker, children's clothing. The Board affirmed the CO's denial of labor certification. Florinda Fashions, Inc ., 94-INA-458 (Oct. 13, 1995).

The Board defined how an employer can show business necessity in Information Industries, Inc. , 88-INA-82 (Feb. 9, 1989) ( en banc ) (requiring that the employer show that the requirement bears a reasonable relationship to the occupation in the context of the employer's business, and that the requirement is essential to performing in a reasonable manner the job duties as described by the employer). For the position of oriental specialty cook, Employer required knowledge of Korean dishes. Employer argued that although no Korean dishes were on the menu, it offered about 10 dishes off the menu to its Korean clientele. Employer further asserted that it would expand its menu to include Korean cuisine. Labor certification was properly denied because Employer offered no proof in support of its argument that it serves Korean food off the menu and no evidence establishing a specific expansion plan. Kim, Oh, Cho, Inc ., 94-INA-490 (Mar. 26, 1996).

The standards for establishing business necessity are set forth in Information Industries, Inc. , 88-INA-82 (Feb. 9, 1989) ( en banc ) (mandating that job requirements bear a reasonable relationship to the occupation in the context of the employer's business and that requirements are essential to performing in a reasonable manner, the job duties as described by an employer). 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. Accordingly, labor certification was properly denied. B.Q.E. Construction , 94-INA-589 (Feb. 26, 1996).

Employer, a home cleaning service, applied for certification for the position of cleaning supervisor. Employer required the ability to 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 requirement 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 Alien 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 Raul Garcia, M.D. , 89-INA-211 (Feb. 4, 1991) (holding that in the context of foreign languages, the first prong of Information Industries requires employers to establish that a significant percentage of its business requires speaking the foreign language), the Board reasoned that the undocumented assertions and the application written in Spanish were inadequate to establish business necessity. Metro Homes Services, Inc. , 95-INA-168 (Dec. 27, 1996).

An employer may establish the business necessity of a particular restrictive requirement by showing that the requirement bears a reasonable relationship to the occupation in the context of the employer's business and the requirement is essential to performing in a reasonable manner, the job duties as described by the employer. See Sharp Screen Supply, Inc. , 94-INA-214 (May 25, 1995). Employer required a B.A. in computer science for the position of importer. The Board affirmed the CO's denial of certification on the basis that Employer had not shown that the requirement was essential to performing in a reasonable manner the job duties as described by Employer. The Board reasoned that Employer failed to show why someone with a B.A. in business administration, international business management or other fields could not perform the job duties. Universal Medical System, Inc ., 94-INA-458 (Feb. 23, 1996).

The Board defined how an employer can show business necessity in Information Industries, Inc. , 88-INA-82 (Feb. 9, 1989) ( en banc ) (requiring that the employer show that the requirement bears a reasonable relationship to the occupation in the context of the employer's business, and that the requirement is essential to performing in a reasonable manner the job duties as described by the employer). For the position of oriental specialty cook, Employer required knowledge of Chinese dishes. It offered 2 to 3 Chinese items on the menu daily including chicken chop suey, sweet and sour chicken, and chicken teriyaki. Certification was properly denied because the Chinese dishes offered by Employer were sufficiently common in the U.S. that they could not be considered Chinese specialties. Kim, Oh, Cho, Inc ., 94-INA-490 (Mar. 26, 1996).

Failure to establish business necessity for an unduly restrictive job requirement will result in a denial of labor certification. See Robert Paige & Assoc., Inc. , 91-INA-72 (Feb. 3, 1993). For the position of oriental specialty cook, Employer required knowledge of Chinese dishes. It offered 2 to 3 Chinese items on the menu daily including chicken chop suey, sweet and sour chicken, and chicken teriyaki. Certification was properly denied because the Chinese dishes offered by Employer were sufficiently common in the U.S. that they could not be considered Chinese specialties. Kim, Oh, Cho, Inc ., 94-INA-490 (Mar. 26, 1996).

The Board recently cited Information Industries, Inc. , 88-INA-82 (Feb. 9, 1989) ( en banc ) and noted "To show business necessity, ... the Employer ... must document that the `job requirements bear a reasonable relationship to the occupation in the context of the employer's business and are essential to perform, in a reasonable manner, the job duties." Employer applied for certification for the position of Custom Hand Wood Turner and required 3 years of experience. The CO issued a NOF questioning the business necessity of three years of experience when the normal requirement was 6 months to 1 year. In rebuttal, Employer submitted a 2 page pamphlet illustrating work his company performed. The pamphlet was submitted to demonstrate "that his business performs custom wood turning as opposed to basic lathe turning." In addition, Employer argued that the position offered can "only be learned from practice and experience" and that his company, unlike others, does not operate machine chisels. In affirming the CO's denial of certification, the Board reasoned both that the showing that a more experienced worker would be better for the company is insufficient to establish the business necessity that and that "business necessity cannot be established by an employer's assertion that the business is highly specialized." Mohamad Wood Turning, Inc. , 95-INA-309 (Feb. 6, 1997).

Employer applied for certification for the position of master jeweler/engraver. Special requirements for the position were, among other things, knowledge of Middle Eastern religion and culture. The CO issued a NOF proposing to deny certification, questioning, among other things, the business necessity of the special requirements. In rebuttal, Employer argued, among other things, that the "employee must be knowledgeable in the customer's culture and religions in order to answer customer's questions and make engravings in Arabic or Turkish." The CO denied certification. Citing Information Industries, Inc. , 88-INA-82 (Feb.9, 1989) ( en banc ) (requiring employers attempting to establish business necessity to demonstrate that the requirement bears a reasonable relationship to the occupation in the context of Employer's business and that the requirement is essential to performing in a reasonable manner the job duties as described by Employer), the Board affirmed the CO. It reasoned that certification was correctly denied because the CO informed Employer that it had to document the necessity of knowing Middle Eastern religion and culture, and although the CO did not specify the kind of documentation needed, Employer failed to provide any, even though it knew that some was required. Nouri's Syrian Bakery, Inc. , 95-INA-191 (Dec. 19, 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 basis that 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 the Alien received 2 years of experience as a baker for Employer. After receiving a rebuttal, the CO denied certification. Citing Information Industries , 88-INA-82 (Feb. 9, 1989) ( en banc ) (requiring employers attempting to establish business necessity to demonstrate that the requirement bears a reasonable relationship to the occupation in the context of Employer's business and that the requirement is essential to performing in a reasonable manner the job duties as described by Employer) , the Board affirmed the CO. 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 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 the 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 noted that employers face denial of labor certification where they fail to document business necessity. See Robert Paige & Associates , 91-INA-72 (Feb. 3, 1993); Shaolin Buddhist Mediation Center , 90-INA-395 (June 30, 1992). 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).

Section 656.21 proscribes the use of unduly restrictive job requirements where an employer cannot document that the job requirements are listed in the DOT classifications or involves a combination of duties, employer must establish business necessity. Business necessity must attach to job duties and job requirements. The CO must consider job duties in the analysis of the essential nature of a job requirement. Information Industries , 88-INA-82 (Feb. 9, 1989) ( en banc ). Best Western Downtown-Capitol Hill , 94-INA-424 (July 19, 1995).

Employers, apparel manufacturers, sought multiple certifications for the position of "duplicate maker" or "sample stitcher." The CO issued a NOF questioning both 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) and whether, in view of the number of previous certifications for the same or like positions, Employer had sufficient volume of business to guarantee work for the positions. In regard to the first question, the CO requested documents related to payroll which Employers failed to provide. In regard to the second, Employer was required to provide business contracts that would justify the hiring of more workers. Employers did not provide contracts but did provide tax returns, invoices, contractor agreements and purchase orders. Employers further noted that they had idle sewing machines. The CO denied certification and Employers appealed, contending, inter alia , that the CO had improperly questioned the business necessity of the position offered. The Board disagreed, noting that, although employers are not required to prove the business necessity of jobs themselves, they may be required to show that the volume, needs and consistency, and future needs of Employers' businesses support the need for full-time workers. See Gerata Systems , 88-INA-344 (Dec. 16, 1988). Top Sewing, Inc. and Columbia Sportswear , 95-INA-563 and 96-INA-38 (Jan. 28, 1997).

Where Employer has not met burden of showing reasonable need for cook with two years experience in Middle Eastern cooking in shop that otherwise looks just like a deli/carry-out foods, business necessity is not shown and certification was properly denied. Why Not, Inc ., 94-INA-603 (Aug. 31, 1995).

In its application for labor certification for the position of "Flight Engineer of B747s," Employer required at a minimum, inter alia, "current flight engineer time within 1 year with B747 aircraft." Although Employer conceded that the requirement was stricter than normally found in the United States, it argued that the requirement was not its own mandate, but that of Japan Airlines (J.A.), Japan Air Charter Co., Ltd. (a subsidiary of J.A. and a company with whom Employer has a contract, J.A.C.C.) and the Japan Civil Aeronautics Bureau (J.C.A.B.) regulations. Employer submitted a supporting affidavit from the vice president of J.A.C.C. stating that these requirements have proven affective over the years with cost analyses of safety considerations and training procedures. In addition, Employer provided portions of the Japan Airline Operations Manual and J.C.A.O. regulations. The Board affirmed the CO's denial of alien labor certification. It reasoned that Employer had failed to establish business necessity because the qualifications list attached to the case only listed the above requirement as a preference and, although the terms of the pilot contract required Aliens to certify that they were qualified in accordance with the specification of the Japan Airlines Operations Manual (which incorporates by reference the requirements of the J.C.A.B.), Employer did not include the pertinent regulations of the J.C.A.B. Moreover, the International Conference of Airline Operators regulations that were submitted did not set forth the requirements that Employer argued to be mandatory. Hawaii Aviation Contract Services, Inc. , 95-INA-469, -648, -650 to -656, -666, -667, and 95-INA-125 (Jan. 29, 1997).

C. Evidentiary and procedural matters

1. Weight and admissibility of evidence

a. Vague and incomplete documentation

Where employer's rebuttal purportedly showing business necessity for experience requirement beyond that listed in the DOT consists only of unsubstantiated assertion, labor certification properly denied. "In as much as the DOT standard is a comprehensive collection of occupational data which provides a wide range of information regarding tasks to be performed and the levels of education and experience required in order to perform them, Employer's unsubstantiated assertion is not sufficient to establish business necessity. Devera Gilden , 93-INA-196 (Jun. 9, 1994).

Labor certification properly denied where Employer's contention that two years experience as a housekeeper was necessary to ensure that employee will not engage in criminal activity is not documented. Employer failed to establish business necessity for the requirement in part since he failed to establish how an individual with two years experience will necessarily be less inclined towards criminal activity. Ramzi K. Maalouf , 93- INA-344 (Jul. 14, 1994).

Labor certification properly denied where requirement of law degree and special knowledge of particular foreign legislation exceeded the normal standard in U.S. for a paralegal and Employer only made unsupported assertions to document business necessity. Maceda, Tolentino Assoc. , 93-INA-264 (Jun. 28, 1994).

Labor certification properly denied where CO reasonably requested specific readily obtainable documentation to establish the business necessity of a foreign language requirement and Employer instead only asserted that foreign language required since employee is assisted by workers who only speak Spanish and that the owner is the only English speaking person at business. Bewise Ranch , 93-INA-553, 566 (Sep. 27, 1994).

Denial of labor certification reversed where Employer complied with CO's requests that it document business necessity for the requirement that applicants be able to perform certain diagnostic tests. The panel found employer's rebuttal documenting that it consistently required this ability of previous hires and that deleting these requirements would jeopardize its state accreditation adequate rebuttal to the CO's broad request for documentation. Adelphi Laboratories, Inc. , 93-INA-285 (Oct. 4, 1994).

Labor certification properly denied where CO correctly found M.D. requirement for Physiologist position unduly restrictive. Further, Employer's bare assertion that the M.D. requirement was necessary because the position requires competence and knowledge beyond a college degree, and because an M.D. implies a professionally trained person with a substantial base of modern medical and surgical knowledge, is insufficient to document business necessity. New York University Medical Center , 93-INA-353 (Nov. 16, 1994).

Labor certification properly denied where the CO found job requirements of personal knowledge in soviet psychology, knowledge of historical relationship between the soviet government and psychology, etc., unduly restrictive. The panel found that Employer's rebuttal evidence vague and incomplete and, therefore, inadequate to explain how its requirements are essential to performing the job duties in the context of Employer's business. In dissent, Judge Litt stated that since Employer's business requires a comparison of psychological methods in the U.S. and former Soviet Union and education on the role of psychology in Soviet society, "obviously, knowledge of Soviet psychology and history is related to the job duties", and the requirements are not unduly restrictive. Esalen Institute Soviet American Exchange Program , 92-INA- 401 (Dec. 28, 1994).

In order to demonstrate business necessity employer must show factual support or a compelling explanation. Employer must also show that the requirements are not more strict for U.S. worker than for the Alien. ERF, Inc., 89-INA-105 (Feb. 14, 1990). If employer does not carry his burden, certification is properly denied. Alan Moss Ltd ., 93-INA-329 (Oct. 4, 1995).

Denial of labor certification affirmed where Employer contends that since it is offering a weekly salary beyond the norm for the position, it has demonstrated business necessity. The panel agreed with the CO that, standing alone, the offer of a higher salary does not establish business necessity. Instead, business necessity is shown by documentation establishing that the skills needed to perform the job justify the higher level of experience. Paralegal Priorities , 94-INA-117 (Feb. 1, 1995).

Employer applied for alien labor certification for the position of "dance instructor," the job duties including, "instruct dance participants in ethnic polish dances, ballroom and Latin American dances...[e]xplain and demonstrate techniques and methods...coach beginners and advanced dancers." Employer required that applicants speak Polish and it argued in its rebuttal to the NOF that "many ethnic (folk) dances ... involve singing along with dancing, ..." and that therefore it was necessary to speak Polish in order to teach the dances with "confidence." Employer further argued that Employer's other workers speak no English and that therefore their supervisor needed to speak Polish. The CO denied certification and the Board affirmed, reasoning that Employer failed to demonstrate that the language requirement was adequately documented as arising from business necessity because "[the conclusory statement that the Polish workers who have been in the United States for 2 years cannot communicate at all in English so that their supervisor must be fluent in Polish is not sufficiently credible to satisfy Employer's burden of proof without additional supporting documentation." Holy Trinity Polish ission , 95-INA-288 (Dec. 24, 1996).

Employer applied for certification for the position of master jeweler/engraver. Special requirements for the position were, among other things, knowledge of iddle Eastern religion and culture. The CO issued a NOF proposing to deny certification, questioning, among other things, the business necessity of the special requirements. In rebuttal, Employer argued, among other things, that the "employee must be knowledgeable in the customer's culture and religions in order to answer customer's questions and make engravings in Arabic or Turkish." The CO denied certification. Citing Maceda, Tolentino Assoc. , 93-INA-264 (Jan. 28, 1994) (holding that unsupported assertions were inadequate to establish the business necessity for a paralegal position of familiarity with agrarian reform law in the Philippines), the Board affirmed the CO. It reasoned that certification was correctly denied because the CO informed Employer that it had to document the necessity of knowing Middle Eastern religion and culture, and although the CO did not specify the kind of documentation needed, Employer failed to provide any, even though it knew that some was required. Nouri's Syrian Bakery, Inc. , 95-INA-191 (Dec. 19, 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 that requiring 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 the 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 noted that "vague and incomplete rebuttal documentation will not meet Employer's burden of establishing business necessity. See Analysts International Corp. , 90-INA-387 (July 30, 1991). Employer's one sentence statement of business necessity with its rebuttal and failure to directly address this issue and provide documentation is insufficient. Dunkin Donuts , 95-INA-192 (Jan. 22, 1997).

b. Employer's written statements

Employer, who required experience in a specific combination of computer languages (where there are an infinite number of combinations), failed to provide independent documentation that establishes the business necessity for the particular combination of computer language. (A letter merely stating that the items listed in the 750 Form are "critical," without supportive documentation, is insufficient). Princeton Information Ltd ., 94-INA-57 (July 5, 1995).

Where Employer applied for alien labor certification for the position of "dance instructor" for ethnic Polish dances, and where Employer submitted an extensive list of the surnames of the students enrolled in the dance classes that obviously reflected their Polish roots, then Employer established the existence of a significant foreign language speaking clientele because written assertions that are reasonably specific and indicate their sources or bases are considered to be "documentation" within the meaning of the regulations. Holy Trinity Polish Mission , 95-INA-288 (Dec. 24, 1996).

c. Disinterested third-party evidence

Employer has burden to establish that unrelated job duties are in fact a business necessity in the listed position. Where an employer submits unsigned assertions only to support business necessity such assertions are inadequate, Wilton Stationer's Inc. , 94-INA-544 (April 10, 1993), and labor certification was properly denied. Washington Center of Aeronautics , 94-INA-500 (Jan. 25, 1996).

Where Employer provides technical specific, scientific data, especially from disinterested third parties who are in the same line of business and experience, and where each of the third parties testifies, in sworn statements, to reasonableness of Employer's requirement, Employer has established business necessity. Arco Oil, 89-INA-295 (May 22, 1991). Academic Press , 94-INA-397 (Mar. 28, 1996).

Where Employer provides technical, specific, scientific data, especially from disinterested third parties who are in the same line of business and experience, and where each of the parties testify, in sworn statements, to the reasonableness of Employer's requirements, then Employer has established business necessity. Academic Press , 94-INA-397 (June 27, 1995).

For the position of "Flight Engineer of B747s," Employer required at a minimum, inter alia , "current flight engineer time within one year with B747 aircraft." Although Employer conceded that the requirement was stricter than normally found in the United States, it argued that the requirement was not its own mandate, but those of Japan Airlines (J.A.), Japan Air Charter Co., Ltd. (a subsidiary of J.A. and a company with whom Employer has a contract, J.A.C.C.) and the Japan Civil Aeronautics Bureau (J.C.A.B.) regulations. Employer submitted a supporting affidavit from the vice president of J.A.C.C. stating that these requirements have proven affective over the years with cost analyses of safety considerations and training procedures. The CO denied certification and the Board affirmed. The Board reasoned that the vice president's affidavit did not come from a disinterested third party and his statement only attempted to justify J.C.A.B. regulations requiring 1 year flight experience in B747s rather than justifying Employer's adoption of such requirements. Hawaii Aviation Contract Services, Inc. , 95-INA-469, -648, -650 to -656, -666, -667, and 95-INA-125 (Jan. 29, 1997).

d. Relevancy of alien's skills

no new cases

e. Deference to employer's judgment

no new cases

f. Essence or enhancement of business

no new cases

2. Requirement that NOF clearly identify violations and required submissions

Denial of labor certification vacated and case remanded where the CO's challenge to Employer's foreign language requirement as unduly restrictive was not sufficiently clear to give Employer adequate notice and did not properly afford Employer opportunity to show that the requirement arises from business necessity. Minaret , 93-INA-257 (Nov. 16, 1994).

3. Obligation of CO to address rebuttal evidence

no new cases

4. Timely building of record

no new cases

5. Admission based on failure to address NOF

Labor certification properly denied where Employer failed to address business necessity for required educational specialty in Urban Economic Development. United Cerebral Palsy Association , 93-INA-216 (Jul. 6, 1994).

6. Offer to acquiesce if justification not accepted

Panel held that if an employer attempts to justify a requirement deemed "unduly restrictive" by the CO, and also expresses a willingness to delete the restriction and readvertise, and the CO is not persuaded by the justification, then the CO must offer Employer the opportunity to readvertise. E.M. Warburg, Pincus Co., Inc. , 93-INA-343 (Jan. 26, 1995)(citing A. Smile, Inc. , 89-INA-1 (Mar. 6, 1990).

VI. Foreign language requirements

A. The regulation

The job opportunity shall not include a requirement for a language other than English unless Employer documents that the foreign language requirements arises from business necessity. See Advanced Digital Corp. , 90-INA-137 (May 21, 1991).

Where the evidence could have been submitted with the rebuttal, the CO is not required to accept the validity of evidence submitted on reconsideration and change the outcome of the case. See Harry Tancredi , 88-INA-441 (Dec. 1, 1988) ( en banc ). Employer submitted a certified statement from its President. The Board did not believe the evidence to be strong enough to change the outcome of the case. Florinda Fashions, Inc ., 94-INA-458 (Oct. 13, 1995).

B. Information Industries applied

The employer bears burden of showing that for language is restricted by business necessity. The employer may show this by demonstrating that he/she plans to expand their business into certain areas in near future. Remington , 88-INA-82 (Feb. 8, 1989) ( en banc ). The C.O. will apply "strict scrutiny" to these determinations. The employer has the burden to demonstrate that it is not "speculating," Time EnergySystems 92-INA-200 (Feb. 3, 1994), or business necessity will not attach. Ommy Imports Intern., Inc ., 94-INA-457 (Oct. 13, 1995).

Where fluency in Mandarin was a certified job necessity, and where applicant did not challenge Employer's conclusion that applicant could not speak Mandarin, alien certification was properly granted as U.S. applicant was rejected for solely job related reasons. Tanforan Dental Group , 94-INA-409 (July 27, 1995).

Where Employer fails to document that use of foreign language is essential to successfully complete the job, and where the materials to prove this were readily available to Employer, certification was properly denied. Employer may not rely on descriptions of another job position where for language is a necessity to prove that it is also a necessity is this job. Supreme Printing & Graphics , 94-INA-208 (June 27, 1995).

Two-prong business necessity standard of Information Industries is applicable to a foreign language requirement. Employer stated that he has been missing business opportunities to expand into the Russian Jewish community and submitted a newspaper article that stated that 40,000 Russian Jews have immigrated to the Los Angeles area in the last five years, many of whom do not speak English.. The Board found that this evidence did not adequately document that Employer's clients are Russian-speaking and non-English speaking. There is no record of the cost of an interpreter, no evidence of "frequent and constant" need for Russian. Requirement for a foreign language is not established by showing that it "tends to contribute or to enhance the efficiency and quality of the business." No current loss of business shown. Evidence that Russian/Jewish community has expanded is not evidence that Employer's business requires a Russian-speaking band leader to expand and/or continue to inspire. Denial of labor certification affirmed. Simcha Productions , 93-INA-545 (July 17, 1995); See also Tacc International Corp. , 95-INA-72 (Oct. 31, 1996); Washington Clinic , 95-INA-75 (Nov. 5, 1996).

Employer's mere assertions as to the need for a foreign language requirement is not sufficient documentation. See Lamplighter Travel Tours , 90-INA-64 (Sept. 11, 1991). Employer failed to establish the business necessity of Hebrew for the position of manger in a children's clothing store because, since Hebrew is primarily a liturgical language for non-Isreali Jewish immigrants, Employer has not documented it is used in conversation by Jews immigrating from other countries. In addition, The Board reasoned that Employer failed to document that there is a significant population of recent Isreali immigrants living in proximity to and shopping in its store (neighborhoods near the store have a significant Jewish population as distinguished from an immigrant Isreali population). Raquel Discount Store , 94-INA-473 (Aug. 8, 1995).

When applying the Information Industries test to foreign language requirements, the evidence must establish that Employer's business includes clients, co-workers or contractors who speak a foreign language and that a substantial percentage of the Employer's business involves the foreign language, and the employee's job duties require communication or reading in a foreign language. See Coker's Pedigreed Seed Co. , 88-INA-48 (Apr. 19, 1989) ( en banc ). Employer justified a Spanish requirement with unsupported assertions that it mainly hires Hispanics, that it would not be able to continue without a Hispanic work force, and that the work has always been done with Spanish speaking supervisors. The rebuttal also contained a list of Hispanic surnames of workers to be supervised by the Alien. Labor certification was properly denied because business necessity could not be found with unsupported assertions, because a list of surnames was insufficient to prove that the employees cannot communicate in English, and because the brief submitted by counsel contained no substantive legal arguments. Harlan Sprague Dawley Inc ., 94-INA-484 (May 28, 1996).

When applying the Information Industries test to foreign language requirements, the evidence must establish that Employer's business includes clients, co-workers or contractors who speak a foreign language and that a substantial percentage of the Employer's business involves the foreign language, and the employee's job duties require communication or reading in a foreign language. See Coker's Pedigreed Seed Co. , 88-INA-48 (Apr. 19, 1989) ( en banc ). Employer supported a Spanish language requirement by merely providing a list of 6 Hispanic surnames and labor certification was accordingly denied. Pacific Southwest Landscape , 94-INA-483 (Apr. 11, 1996).

In response to the CO's request to Employer to document the business necessity of Spanish and French and English for the position of teacher, Employer submitted a letter from the school principal stating that the trilingual language requirement is required because of parent's complaints regarding the absence of foreign languages from the curriculum. Employer stated that they determined the need for the foreign languages as early as 1988 and the Alien was the only applicant who met the criteria. The Board found that the rebuttal demonstrated more of an employer preference for the requirement then business necessity. Montessori Children's Home at Trinity (Santa Barbara Montessori School) , 94-INA-405 (Aug. 23, 1995).

Employer 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 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 and the Board affirmed. Citing Coker's Pedigreed Seed Co. , 88-INA-48 (Apr. 19, 1989) ( en banc ) (holding that the Information Industries test is applicable to foreign languages), the Board noted that in the context of foreign languages, the "first prong...involves whether Employer's business includes clients, co-workers, or contractors who speak a foreign language, and what percentage of the business involves a foreign language" and the 2d prong "focuses on whether the employee's job duties require communicating or reading in a foreign language." 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, an aircraft support business, applied for certification for the position of president. The CO issued a NOF proposing to deny certification, questioning Employer's language requirement of fluency in German and conversational ability in French. In rebuttal the Employer submitted documentation from the corporate secretary, stating that "a large percentage of the company's business is conducted in German, as expressed in the daily telephone contacts between the Alien and the parent corporation and Germany..." Attached was a large telephone bill. The CO denied certification and the Board affirmed. Citing Details Sportswear , 90-INA-25 (Nov. 30, 1990) and Hildago Truck Parts, Inc. , 89-INA-155 (Mar. 15, 1990), the Board noted that the "first prong of the business necessity test for a foreign language requirement is met if Employer establishes the existence of a significant foreign language speaking clientele; the second prong is met if the evidence establishes that Employer's job duties require communicating in that language." The Board reasoned that, absent from the rebuttal, was a discussion of how a previous president and American national, who had no foreign language ability, performed in the position. The Board reasoned that Employer had "not established anything inherent in the nature of Employer's aircraft business that requires fluency in German or...any other language than English..." The Board reasoned that Employer inadequately documented the need for fluency in German or French. Plane Tooling, Inc. , 95-INA-236 (Dec. 24, 1996).

C. Communication with clients

no new cases

1. Number of clients who speak the foreign language

a. Requirement that percentage be "significant"

Employer failed to establish business necessity for the requirement of fluency in both German and Farsi where it stated that 20 percent of its business contacts do not speak any English and that, between the two languages, the Alien would spend "125 percent" of his time speaking the foreign languages. Royal Prestige International , 93-INA-356 (Nov. 16, 1994).

Where only 5% of Employer's business shows need for Hindi language requirement, Employer has not shown sufficient business necessity for language requirement, and certification was properly denied. Sabtex (N.Y.) Ltd., Inc ., 94-INA-304 (Aug. 23, 1995).

Where Employer can establish a significant foreign language speaking clientele, and that a large percentage of the business would be conducted in a foreign language, Employer has established business necessity for a foreign language. Human Resources & Technology Institute, Inc ., 94-INA-295 (Oct.. 19, 1995).

Foreign language requirements must be accompanied by business necessity where the Employer states only that 98% of 100 employees speak Spanish, but does not state that they do not also speak English, Employer has not established business necessity. McKowski's , 94-INA-266 (June 22, 1995).

See Tacc International Corp. , 95-INA-72 (Oct. 31, 1996); Washington Clinic , 95-INA-75 (Nov. 5, 1996); High Class , 95-INA-17 (July 17, 1996) (finding no business necessity for Armenian in where Employer stated that 95% of its customers speak Armenian and most speak no English, where the 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 Englsih sold to individuals with Eastern European sounding names); Cesar Diosa , 95-INA-25 (July 24, 1996) (denying certification for the position of milk driver where Employer attempted to justify the business necessity of a Spanish language requirement by stating that 25% of the households and businesses on the milk route speak Spanish only and many more use Spanish as a first language because Employer's statement was vague and not supported by documentation).

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 forth 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 Raul Garcia, .D. , 89-INA-211 (Feb. 4, 1991) (holding that in the context of foreign languages, the first prong of Information Industries requires Employers to establish that a significant percentage of its business requires speaking the foreign language), the Board reasoned that the undocumented assertions and the application written in Spanish was inadequate to establish business necessity. Metro Homes Services, Inc. , 95-INA-168 (Dec. 27, 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 forth 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 Mr. Isak Sakai , 90-INA-330 (Oct. 31, 1991) (holding that where 20 to 30% of someone's business is dependant on a language, that is significant) and Washington International Consulting Group , 87-INA-625 (June 3, 1988) (holding that percentage of business is insignificant where 23% of clientele speak foreign language), the Board reasoned that the undocumented assertions and the application written in Spanish was inadequate to establish business necessity. Metro Homes Services, Inc. , 95-INA-168 (Dec. 27, 1996).

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 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 and the Board affirmed. Citing Tel-Ko Electronics , 88-INA-416 (July 30, 1990), Chris and Cary Enterprises , 88-INA-134 (Sept. 3, 1991) and Mr. Isak Sakai , 90-INA-330 (Oct. 31, 1991), the Board noted that a foreign-speaking clientele of 80-90% usually justifies business necessity "although it has been as low as 20 to 30%." However, it reasoned that, in this case, Employer's rebuttal included no underlying statements of a person with knowledge such that business necessity was not established. Nouri's Syrian Bakery, Inc. , 95-INA-191 (Dec. 19, 1996).

For the position of travel agency manager Employer required fluency in Hindu, Punjabi, Arabic, and Urdu and also some understanding of Bengali and Gujratee. Employer justified the language requirements, arguing that the "the worker shall devote full-time to deal with these clients such as 70% with Punjabi-speaking clients, 20% with Urdu-speaking clients, 5% with Hindu-speaking clients, 2% with Bangali-speaking clients, 1% with Arabic Speaking clients and the remaining 1% with English-speaking clients." The CO denied certification and the Board affirmed. The Board reasoned that, even assuming that none of the 99% of the foreign-language speaking clients could communicate in English, this does not establish the business necessity for all 6 foreign languages required. It reasoned further that, even assuming that the percentages of foreign languages used correspond to the volume of business generated in each of the foreign languages, Employer, at most, provided a rational for the business necessity of Punjabi and possibly Urdu. However, the percentage of clients who speak the other languages was "clearly" too small to not be unduly restrictive. Peak Time Travel and Tour, Inc. 95-INA-95 (Feb. 5, 1997).

Where Employer applied for alien labor certification for the position of "dance instructor" for ethnic Polish dances, and where Employer submitted an extensive list of the surnames of the students enrolled in the dance classes that obviously reflected their Polish roots, then Employer established the existence of a significant foreign language speaking clientele. Holy Trinity Polish Mission , 95-INA-288 (Dec. 24, 1996).

2. Extent to which language is necessary in the transaction of business

a. Frequent and constant

The panel concluded that business necessity for the requirement that applicants know Italian, French, Spanish, and English was established where the essence of the job offered as International Sales Representative involved selling Employer's films in foreign markets and the ability to communicate was essential. The panel noted that an applicant "would be severely handicapped in performing his job if he were unable to communicate with the prospective buyers." Cinetel Films, Inc. , 90-INA-282 (Feb. 21, 1992).

Business necessity for a bilingual secretary at a restaurant was established where the Employer documented that its newsletter of "the most-seasonal food being served" had to be compiled by the applicant in both Chinese and English. Moreover, reservations for dinners and banquets would be made in both languages "as well as contacts with community groups and food critics." New Canton Restaurant , 91-INA-37 (June 1, 1992).

Where 98 percent of Employer's clientele spoke Chinese, Employer advertised exclusively in Chinese newspapers, and "the Chinese-speaking customers sometimes need to communicate directly with the Accountant to resolve billing, credit, and pricing questions or problems" the panel concluded that business necessity was established for the Chinese language requirement. Dixie Food Co. , 91-INA-276 (Aug. 19, 1992).

The first prong of the Tel-ko Electronics test was met where Employer documented that 60% of its business was conducted in Korean. The panel noted that the second inquiry was whether "fluency in Korean is in fact necessary for the specific incumbent's performance of the duties of (the) job in a reasonable manner." Finding that the incumbent's use of the language would be frequent and constant, the panel concluded that business necessity was established. Tae Ok Park , 92-INA-55 (Mar. 24, 1993).

Business necessity for a foreign language was not established where Employer merely submitted documentation that it made phone calls to Israel and received merchandising order summaries in Hebrew without further explanation. Scala Furniture , 91-INA-282 (Nov. 30, 1992).

A frequent and constant need to communicate in Mandarin for sophisticated business transactions as a research chemist is sufficient to establish business necessity for the language requirement where 99% of Employer's clients could not speak fluent English. Bestech Group of America, Inc. , 91-INA-381 (Dec. 28, 1992) (emphasis added).

Employer failed to establish business necessity for a foreign language requirement where, although requested by the CO, it "submitted no evidence addressing the number or percentage of clients who are dependent on the Korean language and cannot communicate in English, how absence of the language would adversely impact on its business, nor how Employer has dealt with and handled Korean speaking clients previously." Hudson Development & Construction Corp. , 92-INA-33 (Feb. 16, 1993).

Labor certification was granted where Employer established business necessity for its requirement that the applicant know English, Mandarin, and Cantonese for the job of manufacturing test engineering manager. Employer submitted "extensive documentation" in the Chinese languages and "credibly explained that most of the component parts used in the computer monitor manufacturing process are designed and manufactured in Asia." Employer also demonstrated that the position would require "constant communication with Chinese-speaking engineers." Capetronic USA Manufacturing, Inc. , 92-INA-18 (Apr. 12, 1993).

Labor certification was properly denied where Employer failed to document its assertion that the applicant would spend 80% of an eight hour day communicating in Hebrew. The seven service receipts submitted, which were written in English and translated into Hebrew, did not indicate "what percentage of Employer's existing business (was) represented by these receipts." Moreover, Employer submitted no evidence "as to the ethnic nature of the community or whether there are significant numbers of potential clients who speak Hebrew and do not speak English." Alon Auto Service , 92-INA-69 (Mar. 31, 1993).

Labor certification was granted where Employer, a U.S. based subsidiary of a Taiwanese corporation, established business necessity for the Chinese language requirement for the position of banking auditor. By showing frequent contacts between the accounting department and the parent company in Chinese, as well as other contacts requiring use of Chinese, Employer reasonably documented that the proposed requirement bore a reasonable relationship to the occupation. Moreover, Employer reasonably documented that upper level management personnel, such as a banking auditor, must be personally knowledgeable in Chinese in order to exercise individual judgment during transactions. Accordingly, Employer also documented that the foreign language requirement is essential to the reasonable performance of the job. Tatung Co. of America , 92-INA-269 (Sept. 30, 1993).

Labor certification properly denied where Employer failed to establish business necessity of Spanish language requirement for bilingual secretary position. Employer submitted a list of eight clients who allegedly only spoke Spanish. However, upon investigation by the CO, it was apparent that two of the eight spoke English. Moreover, three of the phone numbers for the remaining six clients were incorrect and, accordingly, they could not be reached. Miller Termite and Pest Control , 93-INA-8 (Dec. 15, 1993). See also Q.S.T. Inc. , 92- INA-74 (Jan. 4, 1994) (Employer's statements that "some" of its employees only speak Spanish and that applicant would "sometimes" be required to receive orders from Latin America insufficient to document business necessity).

Employer, an aircraft support business, applied for certification for the position of president. The CO issued a NOF proposing to deny certification, Employer's language requirement of fluency in German and conversational ability in French. In rebuttal Employer submitted documentation from the corporate secretary, stating that "a large percentage of the company's business is conducted in German, as expressed in the daily telephone contacts between the Alien and the parent corporation and Germany..." Attached was a large telephone bill. The CO denied certification and the Board affirmed. Citing Capetronic USA Manufacturing , 92-INA-18 (Apr. 12, 1993), Bestech Group of America, Inc. , 91-INA-381 (Dec. 28, 1992) and Sysco Intermountain Food Services , 88-INA-138 (May 31, 1989) (holding that business necessity was established for Cantonese and Mandarin due to business contacts owners and suppliers of restaurants), the Board noted that a "foreign language requirement may...be justified when Employer's business requires frequent and constant communication with foreign-speaking personnel." The Board reasoned that, absent from the rebuttal, was a discussion of how a previous president and American national, who had no foreign language ability, performed in the position. The Board reasoned that Employer had "not established anything inherent in the nature of Employer's aircraft business that requires fluency in German or...any other language than English..." The Board reasoned that Employer inadequately documented the need for fluency in German or French. Plane Tooling, Inc. , 95-INA-236 (Dec. 24, 1996).

Employer sought labor certification for the position of "Dance Instructor," the job duties including, "instruct dance participants in ethnic polish dances, ballroom and Latin American dances...[e]xplain and demonstrate techniques and methods...coach beginners and advanced dancers...." Employer required applicants to speak Polish and it justified this requirement in its rebuttal on the grounds that "`...many ethnic (folk) dances...involve singing along with dancing...," and that therefore it is necessary to speak Polish in order to teach the dances with "confidence." Employer further argued that Employer's other workers do not speak any English, and that therefore their supervisor must speak Polish. The CO denied certification and the Board affirmed. The Board reasoned that the Employer's evidence failed to show that the business required frequent and constant communication with foreign speaking personnel such that business necessity was established because "[the conclusory statement that the Polish workers who have been in the United States for two years cannot communicate at all in English so that their supervisor must be fluent in Polish is not sufficiently credible to satisfy Employer's burden of proof without additional supporting documentation." Holy Trinity Polish Mission , 95-INA-288, (Dec. 24, 1996).

b. Relationship to the job duties

no new cases

c. Potential loss of customers

no new cases

d. Client preference

Where Employer seeking to employ a Polish dance instructor fluent in Polish submitted a statement which shows that clients taking lessons in Polish dance would prefer to take classes in Polish, then Employer has not shown business necessity but rather client preference and therefore labor certification was properly denied. Holy Trinity Polish ission , 95-INA-288, (Dec. 24, 1996). See also 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 do not speak any Englsih, 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).

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 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 and the Board affirmed. Citing Mr. Isak Sakai , 90-INA-330 (Oct. 31, 1991), the Board acknowledged that "an Employer's client's preference to do business in a foreign language supports a finding of business necessity where Employer has established that it would lose a significant portion of its business." See also Raul Garcia, M.D. , 89-INA-211 (Feb. 4, 1991); Jung Gill Choi, C.P.A. , 88-INA-254 (Mar. 27, 1990). However, the Board distinguished the cited cases on the basis that, in those cases, the foreign language "had a direct bearing on the nature of their respective businesses. Moreover, it reasoned that rebuttal included no underlying statements of a person with knowledge. Nouri's Syrian Bakery, Inc. , 95-INA-191 (Dec. 19, 1996).

e. Employer preference

Where Employer demonstrated that speaking Polish would assist a dance instructor in communicating with recently arrived immigrants to teach them dancing, and thus would be a preference, he has not demonstrated that it is a necessity because, for example, he has failed to explain why workers, who have been in the United States working for Employer for the past 2 years, are unable to assist a dance instructor in communicating with students. Holy Trinity Polish Mission , 95-INA-288, (Dec. 24, 1996).

D. Communication with work force or suppliers

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 forth 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 Golden City Chinese Restaurant , 89-INA-176 (Jan. 4, 1990) and Hollytron , 88-INA-316 (Sept. 28, 1989), the Board acknowledged that the business necessity of foreign languages can be established by a need to communicate with co-workers. In the instant case, however, the Board noted that 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).

E. Expansion into new markets

Because of the danger for abuse by Employers simply tailoring their job requirements to an Alien's foreign language capabilities, documentation presented in cases involving a proposed expansion into foreign markets must be thorough. Trim Aire Aviation, Inc. , 95-INA-396 (Dec. 4, 1996).

1. Applicability of Information Industries test

no new cases

2. Loss to existing business not required

no new cases

3. Strict scrutiny

Employer's planned expansion of its business into Bulgaria was a valid basis for requiring fluency in a foreign language of prospective employees. The panel acknowledged that there is a potential for abuse in this regard and therefore, citing to Cable Car Photo and Electronics , 90-INA-141 (June 5, 1991), applied a strict scrutiny analysis for documenting Employer's proposed plan for expansion into a foreign market. A majority of the panel concluded that Employer did document a realistic, credible expectation of doing business in Bulgaria although it does not yet have a record of sales in Eastern Europe, an office there or a formal documentary "plan" identifying specific targeted customers. The majority relied on Employer's recent record of aggressively seeking out and breaking into new markets. Accordingly, the majority did not find that Employer's proposal was "speculative" in "any sense that would lead to adverse consequences for the wages or working conditions of U.S. workers." Judge Clarke dissented, indicating that Employer provided only generalized information about the business climate in Bulgaria without a definite business operation plan, and, accordingly, failed to meet its burden of documentation. Time Energy Systems, Inc. , 92-INA-220 (Feb. 3, 1994).

Labor certification denied where Employer sought to hire a "Financial Records Examiner" for a proposed expansion of business into the Philippines and Puerto Rico. Among the minimum requirements listed was fluency in Spanish and Tagalog. The panel, applying the strict scrutiny analysis of Advanced Digital Corporation , 90-INA-137 (May 21, 1991), affirmed the CO's denial because Employer currently does not have a business in the Philippines or Puerto Rico, nor has Employer established that such an expansion will occur. Washington, Accounting Group , 93-INA-197 (May 24, 1994); Creative Fine Arts, Inc. , 94-INA-27 (Apr. 25, 1995) (Employer's self-serving and vague statements regarding proposed expansion do not establish expansion into new market under strict scrutiny analysis).

F. Domestic service workers

no new cases

G. Evidentiary and procedural matters

Employer failed to establish business necessity for foreign language requirement where instead of submitting documentation specifically requested by the CO, it only submitted various foreign language advertisements and asserted that it intends to extend its foreign business. Citing to Remington Products, Inc. , 89-INA-173 (Jan. 9, 1991) ( en banc ) and Advanced Digital Corp. , 90-INA-137 (May 21, 1991), the panel affirmed the denial of certification. Dixon & Parcels Assoc., Inc. , 93-INA-213 (Oct. 25, 1994).

Assertion that company president and the Alien, the president's brother, prefer doing business in Portuguese is insufficient to document business necessity. Wheel's Unlimited Auto Exchange , 93-INA-501 (Dec. 13, 1994).

Employer failed to establish business necessity for foreign language requirement Employer only indicated that it has Spanish speaking customers with Spanish surnames who prefer speaking Spanish. Employer did not establish that a considerable portion of its business is dependant on hiring someone who speaks Spanish or that the requirement is essential to performing the job duties in a reasonable manner. California Silk , 93-INA-291 (Jan. 20, 1995).

Employer failed to establish either prong of Information Industries test to establish business necessity for Korean language requirement. First, Employer failed to specify the percent of clients, co-workers or contractors who speak Korean. Second, Employer's undocumented assertion that the employee will speak Korean 60% of the time is insufficient to establish business necessity. Paul Hahm Accounting Co. , 93-INA-89 (May 17, 1994). See also Bonetto Corp., Soko Enterprise , 93-INA-513 (Nov. 22, 1994) (business necessity not established where Employer only asserted that 50% of business primarily in Korean and that a great majority of those use Korean as their only language; that employee would use Korean 50% of time; that 50% of business is dependent on Korean language; and that the absence of foreign language would adversely affect business).

Employer failed to document business necessity for Polish language requirement for position of painter supervisor. Assertion on rebuttal that a large number of subcontractors speak Polish and that safety concerns require ability to communicate with subcontractors in Polish fails to document business necessity in light of the CO's request for specific documentation pertaining to percent of employees or clients requiring Polish and amount of time employee would need to use language. Urban Property Management, Inc. , 93-INA-248 (Jul. 6, 1994). See also Ruby Malva, M.D. , 94-INA-116 (Feb. 13, 1995) (failure to provide specific information requested by CO showing business necessity for foreign language requirement); Mill-Run Tours, Inc. , 94-INA-127 (Apr. 7, 1995); New Maha Corp. , 94-INA-118 (Apr. 6, 1995) (counsel's assertion that %80 of Employer's clientele speak only Korean and one untranslated order form in Korean does not document business necessity); Friends of the Polish-American Assistance Corporation , 94-INA-191 (May 8, 1995); Chariot Apparel LTD , 94-INA-196 (May 8, 1995); Metro Pharmacy, Inc. , 94-INA-33 (May 9, 1995) (unsupported assertion that most of Employer's business is derived from the Spanish-speaking population is insufficient to document foreign language requirement).

Employer failed to document business necessity for Korean language requirement where the only documentation submitted was assertion that the majority of its business was conducted in Korean and a list of clients, the majority of which had Korean surnames. Ace-Tech Auto , 93-INA-484 (Jul. 26, 1994).

Employer failed to establish that regional manager would have significant contact with Spanish speaking on-line employees. Therefore, business necessity not met. Red Coats, Inc. , 93-INA-476 (Sep. 26, 1994).

Employer failed to establish business necessity for Spanish and French language requirement merely by asserting that the "average daily number of people speaking Spanish or French is 500 to 700 clients". Ray Department Stores, Inc. , 93-INA-183 (Sep. 23, 1994).

Employer's unsupported assertion that his restaurant appeals to a largely upscale Polish clientele is not sufficient to establish business necessity for Polish language requirement. Lutnia Continental Cafe , 93-INA-345 (Sep. 26, 1994).

1. Requirement that documentation be translated into English

no new cases

2. Documentation written in English

no new cases

3. Persuasiveness of evidence documenting essential nature of communication

Employer met the first prong of the business necessity test where it submitted a list of customers with Hispanic surnames, along with transcribed statements in Spanish from some of these customers is probative and compelling evidence that a Spanish speaking clientele exists. Leao & Ferris, Inc. , 94-INA-004 (June 27, 1995).

Employer's requirement that a vice president, international marketing & sales, be fluent in four languages was unduly restrictive especially in light of Employer's failure to decide which language requirement was necessary in rebuttal. M.I.E. Corp. , 93-INA-231 (May 30, 1995).

Where Employer fails to document that use of foreign language is essential to successfully complete the job, and where the materials to prove this were readily available to Employer, certification was properly denied. Employer may not rely on descriptions of another job position where for language is a necessity to prove that it is also a necessity is this job. Supreme Printing & Graphics , 94-INA-208 (June 27, 1995).

See also Tacc International Corp. , 95-INA-72 (Oct. 31, 1996); High Class , 95-INA-17 (July 17, 1996) (finding no business necessity for Armenian in where Employer in rebuttal inter alia submitted 13 invoices written in Englsih sold to individuals with Eastern European sounding names).

A finding of business necessity cannot be based on unsupported assertions made by the Employer. See Lamplighter Travel Tours , 90-INA-64 (Sept. 10, 1991). Employer justified a Spanish requirement with unsupported assertions that it mainly hires Hispanics, that it would not be able to continue without a Hispanic work force, and that the work has always been done with Spanish speaking supervisors. Labor certification was properly denied because business necessity could not be found with unsupported assertions and because the brief submitted by counsel contained no substantive legal arguments. Harlan Sprague Dawley Inc ., 94-INA-484 (May 28, 1996).

An unsupported assertion that a certain percentage of an Employer's business is derived from a foreign speaking population is insufficient to document the foreign language requirement. See Metro Pharmacy, Inc. , 94-INA-33 (May 9, 1995). Certification was properly denied where Employer tried to demonstrate the necessity of a foreign language requirement by submitting a list of 14 clients with Indian or Pakistani surnames and an unsworn statement by Employer that 30% percent of his clients speak only Hindi or Urdu. Artesia Animal Hospital, Inc. , 94-INA-623 (Apr. 17, 1996).

To meet its burden of proof, an Employer must submit evidence to support its claim that fluency in a language other than English is essential. Splashware Co. , 90-INA-38 (Nov. 26, 1990). Certification was properly denied where Employer tried to meet its burden by submitting a list of 14 clients with Indian or Pakistani surnames and an unsworn statement by Employer that 30% percent of his clients speak only Hindi or Urdu. Artesia Animal Hospital, Inc. , 94-INA-623 (Apr. 17, 1996).

To meet its burden of proof, an Employer must submit evidence to support its assertion that fluency in a foreign language other than English is essential. Splashware Co. , 90-INA-38 (Nov. 26, 1990). Employer supported a Spanish language requirement by merely providing a list of 6 Hispanic surnames and labor certification was accordingly denied. Pacific Southwest Landscape , 94-INA-483 (Apr. 11, 1996).

To meet its burden of proof, an Employer must submit evidence to support its assertion that fluency in a foreign language other than English is essential. Splashware Co. , 90-INA-38 (Nov. 26, 1990). Employer attempted to justify a Spanish requirement with unsupported assertions that it mainly hires Hispanics, that it would not be able to continue without a Hispanic work force, and that the work has always been done with Spanish speaking supervisors. The rebuttal also contained a list of Hispanic surnames of workers to be supervised by the Alien. Labor certification was properly denied because business necessity could not be found with unsupported assertions, because a list of surnames was insufficient to prove that the employees cannot communicate in English, and because the brief submitted by counsel contained no substantive legal arguments. Harlan Sprague Dawley Inc ., 94-INA-484 (May 28, 1996).

A finding of business necessity cannot be based on unsupported assertions made by the employer. See Lamplighter Travel Tours , 90-INA-64 (Sept. 10, 1991). Employer supported a Spanish language requirement by merely providing a list of 6 Hispanic surnames and labor certification was accordingly denied. Pacific Southwest Landscape , 94-INA-483 (Apr. 11, 1996).

Mere statements by Employer that the foreign language is necessary are inadequate documentation of that fact. See Lamplighter Travel and Tours , 90-INA-64 (Sept. 10, 1991). Certification was properly denied where Employer tried to demonstrate the necessity of a foreign language requirement by submitting a list of 14 clients with Indian or Pakistani surnames and an unsworn statement by Employer that 30% percent of his clients speak only Hindi or Urdu. Artesia Animal Hospital, Inc. , 94-INA-623 (Apr. 17, 1996).

Employer, a home cleaning service, applied for certification for the position of cleaning supervisor. Employer required ability speak Spanish and 2 years experience. 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 forth 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 Splashware Co. , 90-INA-38 (Nov. 26, 1990), the Board noted that in order to establish the business necessity of a foreign language, Employer must submit evidence. In the instant case, the Board noted that 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).

Employer, a bakery, applied for certification for the position of master jeweler/engraver. Special requirements for the position were, among other things, knowledge of iddle Eastern religion and culture. The CO issued a NOF proposing to deny certification, questioning, among other things, the business necessity of the special requirements. In rebuttal, Employer argued, among other things, that the "employee must be knowledgeable in the customer's culture and religions in order to answer customer's questions and make engravings in Arabic or Turkish." The CO denied certification and the Board affirmed. Citing Lamplighter Travel Tours , 90-INA-64 (Sept. 10, 1991), the Board noted that business necessity "is not established where documentation does not support the Employer's assertion." It reasoned that certification was correctly denied because the CO instructed Employer to document the necessity of knowing Middle Eastern religion and culture, and although the CO did not specify the kind of documentation needed, Employer failed to provide any, even though it knew that some was required. Nouri's Syrian Bakery, Inc. , 95-INA-191 (Dec. 19, 1996).

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 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 and the Board affirmed. Citing Raul Garcia, M.D. , 89-INA-211 (Feb. 4, 1991), the Board noted that "where Employer is credible and offers evidence that at least a `significant' portion of its clients are foreign speaking, it need not document that they comprise a particular percentage." However, it reasoned that, in this case, Employer's rebuttal included no underlying statements of a person with knowledge. Accordingly, business necessity was not established. Nouri's Syrian Bakery, Inc. , 95-INA-191 (Dec. 19, 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 only speak Spanish. Responding to the second request, Employer attached its application for employment, written in Spanish. In response to the forth 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 Advanced Digital Corporation , 90-INA-137 (May 21, 1991), the Board reasoned that business necessity cannot be found where documentation does not support Employer's assertion that a high level of communication or interaction is required in the position offered. In the instant case, the Board noted that 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).

VII. Combination of duties

A. The regulation

If a job opportunity is not defined in the DOT because it involves a combination of duties, an Employer must document it has normally employed persons for such combination, workers customarily perform the combination in the area of intended employment and/or the combination is based on business necessity. See 20 C.F.R. § 656.21(b) (2). Employer argued that one of the duties it listed for the position of hair stylist, make and maintain custom wigs, was misinterpreted by the CO to mean fabrication of hair pieces. The Board upheld the CO, reasoning that according to the DOT, a hair stylist cleans and styles wigs and hair pieces. Employer, reasoned the Board, should have used the phrase, "styles and maintains custom wigs, hair pieces, and toupees" rather "making wigs and hairpieces." Head Above the Rest , 94-INA-431 (July 20, 1995).

B. Identification of combination of duties by CO

See U.S. Dyeing & Finishing, Inc. , 95-INA-10 (Sept. 4, 1996) (finding that the DOT indicated that the CO correctly determined that Employer's application for the position of set maker involved a combination of duties because it fell within the positions of Greige-goods maker and sewing machine operator and not a dye matcher or color maker as Employer argued); Pioneer Balloon , 95-INA-54 (July 24, 1996).

1. Combination of duties required must be clearly identified

no new cases

C. Employer bears the burden of establishing the customary duties for an occupation

Where Employer seeks to hire someone with dual job classifications under the DOT listing, Employer has burden to show that they have hired other applicants with the same combination of credentials and/or established business necessity for that combination. Where Employer fails that burden, certification was properly denied. J. Abouchar & Sons, Inc. , 94-INA-475 (July 20, 1995); Head Above the Rest , 94-INA-431 (July 20, 1995).

Where job listed is combination of two separate classifications, burden is on Employer to show that Employer has hired such persons in the past and has such need. Failure to so indicate is grounds for denial. Amikam , 94-INA-474 (Aug. 17, 1995).

1. Establishing customariness precludes requirement of establishing business necessity

D. Employer bears the burden of establishing the business necessity of a combination of duties

1. Business necessity standard for a combination of duties

Employer sought labor certification for the position of "Computer Administrator and Purchasing Agent," the job duties including, "operate computer to process business, manage system, run reports, input orders, purchase orders, receiving and general office work." In the NOF, the CO challenged Employer's showing of a business necessity for combining duties in the position. Employer argued that the combination of duties was "an unfortunate misinterpretation," and that the proper title was "Purchasing Agent using in his work a main frame computer as his prime tool." Employer also submitted a letter from the vice president of a similar company which stated that operating a computer was an indispensable part of the job. The CO denied certification and the Board affirmed. The Board noted that the position of "Purchasing Agent and Computer Administrator" does not appear in the DOT which means it is a combination of duties. Citing the business necessity standard in Robert L. Lippert Theatres , 88-INA-433 (May 30, 1990) ( en banc ), the Board found Employer's rebuttal assertions did not meet the business necessity standard. K&D Export Import Company, 95-INA-275 (Jan. 29, 1997).

2. Mere assertion is not sufficient to show business necessity

a. Assertion of convenience or practicality

no new cases

b. Assertion regarding size of business

A mere assertion that Employer's business was too small to hire separate accountants coupled with the fact that Employer did not consider alternatives was insufficient to establish business necessity for a combination of positions to one accountant for both the construction company and the accounting business. Max Majidi & Assoc. , 91-INA-198 (July 20, 1992). See also The Luxton Group , 93-INA-214 (May 14, 1993) (Employer failed to document that, based on its "small to medium size," the Plant Manager must also be responsible for purchasing supplies from Taiwan and know Mandarin).

Employer applied for alien labor certification for the position of "Computer Administrator and Purchasing Agent," the job duties including, "operate computer to process business, manage system, run reports, input orders, purchase orders, receiving and general office work." In the NOF, the CO challenged Employer's showing of a business necessity for combining duties in the position. Employer claimed that it had to combine duties because it was a small business. The CO denied certification and the Board affirmed. It reasoned that an assertion regarding the small size of the business cannot alone establish business necessity. See Max Majidi & Assoc. , 91-INA-198 (July 20, 1992). K&D Export Import Company, 95-INA-275 (Jan. 29, 1997).

c. Assertion regarding financial savings

no new cases

3. Reasonable, specific argument of business necessity may be persuasive

Employer established business necessity for vice president position requiring combination of duties including directing commercial lending transactions plus directing legal/banking affairs. In rebuttal, Employer described the position as banking officer primarily charged with protecting the bank's interests by reviewing documentation prepared by lawyers. Employer justified the combination by documenting the changed nature of the position over the years and specifying that business oriented employees are interested and experienced only in business promotion, unable to properly review legal documents. Moreover, Employer noted specific areas of its business, such as student loan's and increased litigation in that area, that required a combination of legal and traditional banking experience. Accordingly, the panel concluded that Employer documenting business necessity for combination of duties pursuant to Information Industries, Inc. , 88-INA-82 (Feb. 9, 1989) ( en banc ). The Sumitomo Trust & Banking Co., Ltd. , 93-INA-78 (Jul. 6, 1994).

The combination of duties of horse trainer, roping instructor and ranch manager were found acceptable where Employer, a fledgling business trying to expand and unable to support tow separate full time positions, documented business necessity for requirement. WDC Corporation , 93-INA-457 (Jul. 26, 1994).

Where Employer asserts that job is "Group Leader, Technical Engineer", which does not exist in the DOT, position required a combination of duties and Employer must show: 1) that it normally employs workers to perform that combination of duties; or 2) that workers normally perform that combination of duties in the area of intended employment; or 3) that the combination of duties is based on business necessity. Employer's rebuttal consisting of an expert's letter describing the complicated nature of the position and stating that the position appears to be "consistent with company practice" was found insufficient to establish that the combination of duties is customary. DTK, Computer, Inc. , 93-INA-201 (Sep. 15, 1994).

Employer documented business necessity for combining the duties of a sales manager and a market research analyst for the job of marketing representative where Employer submitted a letter from its vice president specifically outlining the training and knowledge required of its other marketing representative. Barton Beers, Ltd ., 90-INA-356 (Aug. 14, 1992).

The provisions at 20 C.F.R. §656.21(b) (2) (ii) create a rebuttable presumption that a combination of duties is unduly restrictive. The panel noted that, although the requirement that a Financial Analyst have knowledge of computer hardware or software is not state in the 1977 edition of the DOT, "[i]t seems self-evident that this description would be somewhat outdated given the vast changes in technology and computerization that have occurred throughout society in the ensuing 14 years." The panel concluded that the job requirements did not constitute a combination of duties. Bear Stearns & Co. , 91-INA-248 (Apr. 13, 1992).

Citing Bear Stearns & Co. , 91-INA-248 (Apr. 13, 1992), a panel concluded that Employer established business necessity for its requirements that a financial analyst possess familiarity with certain computer hardware and software given technological changes and Employer's uncontradicted assertions regarding the role of Employer's financial analyst in its business. Kraft General Foods International , 90-INA-209 (Aug. 4, 1992).

4. Evidence of narrow tailoring may undercut argument of business necessity

Where three U.S. applicants for position of coordinator of research exceeded Employer's educational requirements but were rejected for backing proficiency or experience in LISREL programming language or Rasch analysis, these special requirements appeared namely tailored to the Alien's resume, designed to exclude qualified U.S. workers and therefore indicated lack of a bona fide job opening. Dr. Bruce Marchiafava ,93- INA-64 (July 17, 1995).

E. CO must consider Employer's rebuttal evidence and arguments

no new cases

F. Failure to prove customariness or business necessity results in denial of certification

Labor certification was properly denied where Employer failed to establish business necessity for its requirement that an accounting clerk be able to also judge the quality, grades, colors, sizing, and pricing of leather goods. There was no evidence to demonstrate that the two functions were essentially related "or that the accounting function reasonably can be performed only by an employee with training and experience in judging material quality, color, grading, etc. . . ." Empire State Leather Corp. , 90-INA-448 (Nov. 12, 1992).

Labor certification properly denied where Employer failed to establish business necessity for its requirement that applicants have completed Novell Systems Manager instruction course. Employer's documentation showing improved company earnings over past six years and its assertion that hiring an otherwise qualified applicant without this experience would be detrimental to business is insufficient to show business necessity for the requirement. Fiduciary Communications Company, Inc. , 92- INA-348 (Nov. 9, 1993).

G. Scope of rules regarding combination of duties

no new cases

VIII. Live-in requirements

A. The regulation

no new cases

B. Business necessity standard ( Graham test)

Employer has burden of showing necessity for worker that will "manage the household and household's personal affairs." Factors include Employer's occupation, commercial activities outside the home, and the circumstances of the house itself. Employer has burden to document whether there are cost effective alternatives to live-in and whether need for live-in is genuine. Richard Esposito , 89-INA-222 (Feb. 19, 1991). Maria L. Francisco , 94-INA-456 (Oct. 13, 1995) .

To establish business necessity Employer must show that the requirements are essential to performing the job. Marion Graham, 88-INA-102 (Mar. 14, 1990). For live-in, Employer must provide written assertions for CO to determine if there are cost-effective alternatives. Id. Where Employer lists only a desire "to return to work" she has not established business necessity for a "live-in." Julie Johnston Molino , 94-INA-241 (July 26, 1995)

Employer must establish business necessity where the job requirement is for a live-in worker. Where the CO denied alien labor certification for, inter alia , allegedly mistaking a suite number for a post office box, where the CO believed that it had uncovered Employer's use of a fictitious address but where Employer caused this error by inadvertently omitting the numbers of the street address given, then remand would be helpful to allow Employer to explain why it could not be contacted and whether business necessity existed. Frank Basilicata , 95-INA-283 (Feb. 6, 1997).

Employer "clearly established" that a live-in requirement was essential to perform in a reasonable manner the duties of the job where he indicated that his work schedule runs from 6:00 A.M. to 10:00 P.M., that his wife works unpredictable twelve hour shifts as a nurse, and that in the past, his children have attended school from 8:00 A.M. to 4:00 P.M., and after school activities from 4:00 P.M. to 8:00 P.M. Frank Basilicata , 95-INA-283 (Feb. 6, 1997) (Huddleston, J. dissenting).

See Dr. & Mrs. Neil Ratner , 94-INA-521 (Aug. 1, 1996).

The Board recently cited Marion Graham , 88-INA-102 (Feb 2, 1990) (en banc) (holding that "the business necessity of a live-in requirement is reached if the requirement is necessary to get the job done"), in upholding the CO's denial of labor certification. Employer applied for certification for the position of Nurse Assistant in a residential care home and required the successful applicant to live on the premises. The Board upheld the CO for several reasons. First, Employer's rebuttal that "stressed a requirement of availability" contradicts contract terms to the effect that the worker would be able to leave after work. Second, the Board reasoned that a statement Employer had made (that having a live-in worker would obviate the need for a night worker) was inconsistent with another statement it had made ("The only duty of a night worker is to be available if and when called upon by a resident.") because the former statement implies that the "worker must remain alert to hear the call for a resident" and this night watch "necessarily precludes sleep for the worker on duty..." Last, the Board reasoned that hours listed for the employment were from 7:00 A.M. to 4:00 P.M. Given the hours of employment, there was no reason for the applicant to live on the premises. Ryanrae Residential Care Home , 95-INA-259 (Jan. 30, 1997).

The Board recently cited Information Industries, Inc. , 82-INA-82 (Feb 9, 1989) ( en banc ) and noted "Where an employer cannot document that a job requirement is normal to the occupation, ... Employer [must] establish the business necessity for the requirement. The Requirement must bear a reasonable relationship to the occupation in the context of Employer's business and be essential, in a reasonable manner, to performing the job duties as described by Employer." Employer had applied for certification for the position of live-in cook. In the NOF the CO requested Employer to demonstrate the need for the live-in requirement by documenting, among other things Employer's entertainment schedule. After the CO denied certification the Board affirmed. It reasoned that Employer had not provided the entertainment schedule but instead indicated that no entertaining during the week was contemplated; Employer did not know how long the food preparation would take and justify the need for 3 meals; all 3 meals (including breakfast) were described as needing soup and appetizers; Employer failed to explain the need for lunch when both she and her husband would have to travel 60 blocks daily to eat at home; and Employers work day ended at 6:00 p.m. "which would allow a cook adequate time to prepare supper even after arriving late in the afternoon." Mrs. Dana Embroz , 95-INA-293 (Dec. 2, 1996).

C. Evidentiary and procedural matters, generally

Labor certification properly denied where Employer failed to document business necessity for live-in requirement. Instead, Employer incorrectly only asserted that it does not need to show business necessity for the requirement. Anna Dorfman , 93- INA-149 (Sep. 26, 1994).

Labor certification properly denied where the CO challenged Employer's live-in requirement and Employer only responded by stating that the requirement is reasonable and cost effective. George Mack , 93-INA-184 (Nov. 29, 1994).

1. Statements by Employer as evidence

Employer sought labor certification for the position of live-in cook. The CO issued a NOF proposing to deny certification due to an unduly restrictive live-in requirement. The CO instructed Employer to either amend the application for certification or show business necessity by documenting the number and length of meals prepared daily and weekly. If any of the need for a cook was due to entertaining, Employer was instructed to document the current schedule for entertaining and any previous schedule for entertaining. Last, Employer was instructed to document any job duties other than cooking, evidence of the prior employment of cooks, any other pertinent information, the children's school schedule, and the parent's schedule. Employer responded by documenting a meal schedule, the children's situation and the husband and wife's irregular schedule caused by their joint ownership of a business. Although unable to document a full year's entertainment schedule, Employer did provide specific instances of entertainment from May though July, 1994. Furthermore, Employer noted that part time workers had not sufficiently met their dining needs. The CO denied certification, noting that Employer did not document the number of meals prepared daily and weekly, the length of time required for each meal, a twelve month entertainment schedule, evidence of former full-time cooks, and a detailed study of the parent's work schedule. The Board affirmed the CO's denial of labor certification. Citing Marion Graham , 88-INA-102 (Mar. 14, 1990) ( en banc ) (holding that an Employer's statement justifying a live-in requirement should be specific enough to enable the CO to determine whether there are cost-effective alternatives to the live-in requirement, whether Employer genuinely needs a live-in worker, and, if a reason given for the live-in requirement is absence from home, whether the statements show the length and frequency of the absences), the Board noted that, although standing alone the request for documentation of a full year's entertaining may not be enough to deny certification, Employer's failure to provide that and other significant information was sufficient cause. The Board further noted that, self-employed, Employer had a flexible schedule and it failed to demonstrate why a live-in requirement was necessary given the flexibility. Guida Marie Santos Silva , 95-INA-286 (Feb. 6, 1997).

Even though Employer's explanation was not as complete as it could have been, it was a satisfactory explanation for a live-in requirement because it was specific enough to enable the CO to determine that there were no cost effective alternatives to a live-in requirement and that the needs for the household for a live-in worker were genuine. Employer, in rebuttal to the NOF, indicated that his work schedule runs from 6:00 A.M. to 10:00 P.M., that Employer's wife worked unpredictable twelve hour shifts as a nurse, and that in the past Employer's children have attended school from 8:00 A.M. to 4:00 P.M., and after school activities from 4:00 P.M. to 8:00 P.M. Frank Basilicata , 95-INA-283 (Feb. 6, 1997) (Huddleston, J. dissenting).

2. Statements by counsel as evidence

Business necessity is not established by the generalized assertions of Employer's agent. Esther Russak , 93-INA-185 (Sept. 30, 1993); Hing P. Yan , 93-INA-33 (Nov. 26, 1993).

Employer must respond specifically to a request for proof of the business necessity of a foreign language requirement. Stating that "most students are Polish" and that the "Polish language is the quintessence of the teaching" are too general to prove the business necessity of a Polish speaking teacher. St. Frances De Chantal RC Church , 94-INA-578 (Aug. 30, 1996).

3. CO's request for specific documentation

no new cases

4. Record for review

a. CO's failure to challenge live-in requirement

no new cases

b. Limitation to record upon which denial by CO was based

no new cases

c. Remands to permit amendment of record

no new cases

d. Remand to permit amendment to application

no new cases

5. Obligation of CO to address rebuttal

no new cases

6. CO must provide opportunity to readvertise without the restrictive requirement

no new cases

D. Factors supporting business necessity of live-on-the-premises requirement; persuasiveness of evidence

1. Duties that require living on the premises

Labor certification for live-in housekeeper denied where Employer failed to demonstrate why meal preparation and cleaning could not be performed by a live-out housekeeper. The panel cited to Cynthia Bartky , 90-INA-440 (May 9, 1991), in holding that "in the absence of a necessity for care of a chile or other dependent, a need only for cleaning the house and preparation of meals, as is the case here, could be satisfied by a live-out worker, even if the worker's schedule does not coincide with Employer's." Nandita Chowdhury , 93- INA-181 (Apr. 19, 1994). See also Rose Marie Ricks , 93-INA-192 (Apr. 19, 1994); Edwin Calvo , 93- INA-208 (Jul. 25, 1994).

Employer failed to establish business necessity for a live-in requirement of a gardener. The panel members stated that they were hard pressed to imagine a situation where a gardener would be required to work on a live-in basis. Employer's statements that it was easier to have the gardener live-in because he could work when the weather was good without paying overtime and that Employer's tenants also needed the gardener's services were not found convincing. Edward Smolinski , 93-INA-275 (Sep. 21, 1994).

Employer failed to establish business necessity for a Housekeeper where the CO correctly determined that the job as described was that of a Home Attendant. Consequently, Employer failed to document business necessity for a live-in Housekeeper by citing her physical needs caused by her medical problems. The panel noted that the CO allowed Employer to refile the application as a Home Attendant, but Employer rejected that alternative. Hannah Komanoff , 93-INA-177 (Mar. 29, 1995).

Employer failed to establish business necessity for a live-in housekeeper based on alleged security concerns since duties of a live-in housekeeper do not include serving as home security guard and alternatives, such as alarm systems, exist. Because the household includes no children or other dependents requiring during the day, no reason given why a live-out housekeeper could not perform the job. Helena Zawada , 93-INA-280 (Oct. 27, 1994).

Employer did not establish business necessity for the live-in requirement for the position of "Houseworker, General, Live- in" where the household members included the husband, wife and two college age sons who "like only freshly cooked meals" and "do not accept heated food." Moreover, the fact that the husband and wife wake up earlier than the sons and do not have time to prepare breakfast for them only establishes the convenience of the live-in requirement, not its business necessity. Janet Reda , 93-INA-191 (Apr. 28, 1995).

Business necessity is not established where the job duties described can reasonably be performed without an employee living on the premises. Alan Squitieri , 90-INA-570 (Apr. 9, 1992).

Employers established business necessity for a live-in child monitor and housekeeper requirement where Employers "submitted a statement explaining that severe weather conditions and the rural setting of their home" demonstrated the need for a live-in requirement. Mr. and Mrs. Langle , 91-INA-189 (June 30, 1992).

Business necessity was not established where the Employer asserted that a live-in was needed to walk his dog in the evening and feed a fish and bird. Employer failed to demonstrate that alternatives would not be as feasible. Jack Friedman , 91-INA-288 (Dec. 11, 1992).

Employer failed to establish business necessity for a live-in requirement where the panel noted that "[t]he duties assigned do not appear more daunting for a 9-to-5 live-out worker than for a forty-hour-a-week live-in." Elaine Zeh , 91-INA-303 (Feb. 11, 1993).

Where a job offer included child care duties which, if substantiated, could be used to establish the business necessity of a live-in requirement for the position of "Housekeeper," where Employer indicated that his work schedule ran from 6:00 A.M. to 10:00 P.M., where Employer's wife worked unpredictable twelve hour shifts as a nurse, and where, in the past, Employer's children have attended school from 8:00 A.M. to 4:00 P.M., and after school activities from 4:00 P.M. to 8:00 P.M. , then business necessity was established because those duties cannot reasonably be performed by an employee who does not live on the premises. Frank Basilicata , 95-INA-283 (Feb. 6, 1997) (Huddleston, J. dissenting).

Dr. & Mrs. Neil Ratner , 94-INA-521 (Aug. 1, 1996); Dr. & Mrs. Neil Ratner , 94-INA-521 (Aug. 1, 1996).

The Board recently distinguished 1 case from cases where the Board found the business necessity of live-in requirements. Citing Stephan Hendel , 93-INA-41 (Feb. 23, 1994), the Board noted that business necessity was found for live-in requirements based on "special dietary needs and/or assistance in other domestic chores. Employer had applied for certification for the position of live-in cook. In the NOF the CO requested the Employer to demonstrate the need for the live-in requirement by documenting, among other things Employer's entertainment schedule. After the CO denied certification the Board affirmed. It reasoned that Employer had not provided the entertainment schedule but instead indicated that no entertaining during the week was contemplated; Employer did not know how long the food preparation would take and justify the need for 3 meals; all 3 meals (including breakfast) were described as needing soup and appetizers; Employer failed to explain the need for lunch when both she and her husband would have to travel 60 blocks daily to eat at home; Employers work day ended at 6:00 p.m. "which would allow a cook adequate time to prepare supper even after arriving late in the afternoon;" and Employer conceded that "other...duties such as cleaning and vacuuming is already done by another lade [sic]..." Mrs. Dana Embroz , 95-INA-293 (Dec. 2, 1996).

The Board recently cited Alan Squitieri , 90-INA-570 (Apr. 9, 1992), and noted that "Business necessity is not established where those duties can be reasonably performed by an employee who does not live on the premises." Employer had applied for certification for the position of live-in cook. In the NOF the CO requested Employer to demonstrate the need for the live-in requirement by documenting, among other things the Employer's entertainment schedule. After the CO denied certification the Board affirmed. It reasoned that Employer had not provided the entertainment schedule but instead indicated that no entertaining during the week was contemplated; Employer did not know how long the food preparation would take and justify the need for 3 meals; all 3 meals (including breakfast) were described as needing soup and appetizers; Employer failed to explain the need for lunch when both she and her husband would have to travel 60 blocks daily to eat at home; the Employers work day ended at 6:00 p.m. "which would allow a cook adequate time to prepare supper even after arriving late in the afternoon;" and Employer conceded that "other...duties such as cleaning and vacuuming is already done by another lade [sic]..." Mrs. Dana Embroz , 95-INA-293 (Dec. 2, 1996).

a. Cleaning and meal preparation

Employer failed to establish business necessity for a live-in requirement where she documented that she was frequently absent from the home but failed to demonstrate that a live-in was needed to care for young children, an ailing spouse, or other dependents. In so holding, the panel rejected assertions that the preparation of meals, household cleaning, and irregular work hours required a live-in worker. Hortensia Vargas , 91-INA-26 (Apr. 21, 1992).

Business necessity for a live-in was not established where the "Employers did clearly demonstrate Mr. Abello's medical need for a private cook, (but) they did not demonstrate that a daily worker living-out would be unable to prepare meals to Mr. Abello's medical and schedule requirements." Marcelino and Ana Abello , 90-INA-490 (May 14, 1992).

b. Home entertainment

Employer sought labor certification for the position of live-in cook. The CO issued a NOF Proposing to deny certification due to an unduly restrictive live-in requirement. The CO instructed Employer to either amend the application for certification or show business necessity by documenting, inter alia , Employer's current schedule for entertaining and any previous schedule for the same. Employer in rebuttal submitted a entertainment schedule running over a 3 month period from May to July that showed entertaining 5 to 7 times per month. The CO denied certification and the CO affirmed because, although "standing alone, the CO's requirement of documentation for a full year might be unwarranted and a basis of for remand to permit Employer to remedy the matter, the Employer's failure to furnish this and other significant documentation is sufficient grounds to affirm the CO." Guida Marie Santos Silva , 95-INA-286 (Feb. 6, 1997)

c. Corporate residence

no new cases

d. Screening of telephone calls

no new cases

e. Need for trustworthy employee

no new cases

f. Home security

no new cases

g. Health care

no new cases

h. Child care

no new cases

2. Absence from home

Labor certification was properly denied where Employer failed to document a frequent and unexpected absence from home. Ira S. & Roberta Silver , 91-INA-147 (July 22, 1993). See also Ron M. Glazer , 91-INA-74 (July 22, 1993).

Business necessity for a live-in requirement was established where there were two young children at home and Employers submitted a detailed work schedule for a 30 day period which demonstrated very irregular hours of absence from the home. Considering the "extreme and haphazard range of their early and late hours," the panel concluded that business necessity for a live-in worker was established. Joanne and David Fields , 91-INA-2 (Nov. 23, 1992).

Business necessity for a live-in requirement was not established where Employer did not "specify the length or frequency of her business travels." Linda Smith , 90-INA-468 (Apr. 30, 1992). See also Michael J. Blake , 91-INA-394 (May 26, 1993) (Employer did not submit a detailed schedule, as requested by the CO, to document the need for a live-in).

Business necessity for a live-in was not established where Employer submitted no evidence to demonstrate that her "schedule is erratic with unforeseeable circumstances, unplanned events or unexpected schedule changes or conflicts which would necessitate a live-in worker." Bobby & Dale Papadogonas , 92-INA-25 (Mar. 2, 1993).

Business necessity for a live-in requirement was not established where the CO required a detailed travel schedule and Employer furnished only three hotel confirmations. Mr. and Mrs. Brian Kazinec , 90-INA-580 (July 23, 1992). See also Carmine & Phyllis Pizzariello , 91-INA-314 (Dec. 11, 1992) (Employer submitted two sets of conflicting work schedules); Steven Krause , 91-INA-58 (Dec. 9, 1992) (Mr. Krause provided the CO only with a copy of his bar membership card and a document "purportedly evidencing Mr. Krause's membership in the Screen Actors Guild and AFTRA").

Business necessity for a live-in requirement was not established where Employers merely asserted that they had three young children at home and needed to attend car races, trade shows, seminars, and work at their gasoline station. The record did not indicate the frequency of the seminars, trade shows, or car races nor that attendance at the gasoline station for extended hours was necessary. Jean Louis and Ester LeBretor , 90-INA-233 (Dec. 20, 1991).

Business necessity for a live-in was not established where "the parties' three-month calendar schedule showed one overnight absence for him in April and one in June, and one each for her in April (not the same night) and May. There were no occasions during the three month period when at least one of the couple was not at home by 6:30 p.m." Shimon Amir , 92-INA-13 (Jan. 29, 1993).

However, a detailed and credible account of the frequency of absences from home will support a finding of business necessity for the live-in requirement. Catherine M. Schuster and Kim Border , 90-INA-503 (Mar. 31, 1992).

Labor certification was properly denied where the panel noted that "Employers have not suggested that their hours away from home are erratic or unpredictable" and there was no documentation to indicate that Employer considered "alternative employment modalities." Henry & Clarisse Arnhold , 92-INA-14 (Feb. 11, 1993).

A divided panel granted certification for a live-in housekeeper, holding that the CO placed too much emphasis on how often both parents would be out of town without considering such factors as the parents erratic work schedule, the father's course work "that may well be crucial to his professional and economic advancement in his profession," and the mother's community activity. In his dissent, J. Clarke specifically stated that non-income producing activity, such as church activity and non-work related course work are not legitimate factors for establishing business necessity. Paul and Yuchen Chang , 91-INA-396 (Sept. 1, 1993).

Employer sought labor certification for the position of live-in cook. The CO issued a NOF proposing to deny certification due to an unduly restrictive live-in requirement. The CO instructed Employer to either amend the application for certification or show business necessity. Employer was instructed to document the number and length of meals prepared daily and weekly. If any of the need for a cook was due to entertaining, Employer was instructed to document the current schedule for entertaining and any previous schedule for entertaining. Also, Employer was instructed to list any of the job duties other than cooking, evidence of the prior employment of cooks, any other pertinent information, the children's school schedule, and the parent's schedule. Employer responded by documenting a meal schedule, the children's situation and the husband and wife's irregular schedule caused by their joint ownership of a business. Although unable to document a full year's entertainment schedule, Employer did provide specific instances of entertainment from May though July of 1994. Furthermore, Employer noted that part time workers had not sufficiently met the family's dining needs. The CO denied certification, noting that Employer did not document the number of daily meals prepared daily and weekly and the length of time required for each, a twelve month entertainment schedule, evidence of former full-time cooks, and a detailed study of the parent's work schedule. The Board affirmed the CO's denial of labor certification. Citing Marion Graham , 88-INA-102 (Mar. 14, 1990) ( en banc ) ("To establish business necessity for a live-on-the-premises requirement, Employer must demonstrate that the requirement is necessary to perform in a reasonable manner the job duties as described by the Employer."), the Board noted that, although standing alone the request for documentation of a full year's entertaining may not be enough to deny certification, Employer's failure to provide that and other significant information was sufficient cause to deny it. The Board further noted that, self-employed, Employer had a flexible schedule and it failed to demonstrate why a live-in requirement was necessary given the flexibility. Guida Marie Santos Silva , 95-INA-286 (Feb. 6, 1997).

3. Difficulty finding live-out worker

no new cases

E. Applicability of Graham test to requirement of excessive hours, occasional stay-overs or split shifts

One panel has held that "there is no per se bar to a split-shift arrangement". As a result it remanded a case where the CO concluded that the requirement had an adverse impact on wages and working conditions and required that Employer delete the requirement without providing an opportunity to establish business necessity for the split-shift. The panel directed the CO to "clearly enunciate his standard for review and allow Employer to submit relevant evidence before determining whether Employer has established business necessity for the requirement under the standard enunciated in Marion Graham , 88-INA-102 (Feb. 2, 1990)". Hossein Rostam , 91-INA-185 (May 21, 1985).

An Employer failed to establish business necessity for a live-in domestic to work the unusual hours of 2:00 p.m. to 10:00 p.m. as there was "no showing why the job could not be done in a normal workday, with occasional overtime for special events." Louis Rosen , 90-INA-488 (Aug. 21, 1992). See also Cheri Rosenthal , 90-INA-487 (Aug. 21, 1992).

Employer established a need for unusual hours of 11:00 a.m. to 7:00 p.m. where the children were in school during the day and it was not "unreasonable to require the tutor to work to the hours the children are available and to work until 7:00 p.m., especially since meal-time instruction is one of her job duties." Julie C.L. Yuen Chin , 91-INA-321 (Feb. 19, 1993).

Business necessity for a 9:00 a.m. to 6:00 p.m. (with one hour for lunch) shift was established where Employer noted that the live-out position involved a long commute and "the extension of one hour until 6 p.m. allows the worker to be available during the breakfast and dinner periods." Mr. & Mrs. Jerome Kohlberg , 92-INA-273 (July 20, 1993).

The panel reversed the CO's denial and granted certification where Employer documented business necessity for a live-out housekeeper. The CO denied certification on the ground that Employer's listed work schedule of 8:30 to 6:00 for the position was unduly restrictive. The panel, however, found that Employer had shown business necessity by documenting that both the husband and wife worked long hours beyond the normal 9:00 to 5:00 or 8:00 to 4:00 and that the Alien was needed to care for small children. Stephen Hendel , 93-INA-41 (Feb. 23, 1994).

IX. Other requirements

A. Credit availability

no new cases

B. Education

1. Determination whether requirement is unduly restrictive

Where Employer's minimum requirements included not only a Master of Science degree in Industrial Engineering but completion of six particular undergraduate courses, the CO correctly determined the latter requirements to be unduly restrictive and certification was correctly denied. Minnesota Mining & Manufacturing Co., (3M) , 92-INA-255 (Oct. 27, 1994).

The CO reviewed the job offer and stated job duties and, considering both, appropriately challenged Employer's particular Master's degree requirement. Council on International Education , 93-INA-136 (Nov. 10, 1994).

Labor certification denied where Employer did not document business necessity for its particular requirement of a Bachelor's Degree in Hotel and Restaurant Management. Employer's statement that it and other companies require this particular degree was not found adequate since it fails to indicate the base or source of the conclusion, such as showing the number of managers in the company possessing this degree or documenting in some fashion that the particular degree is the norm industry wide. Jana Corporation , 94-INA-5 (Dec. 21, 1994). See also Drake College 94-INA-125 (Mar. 31, 1995) (Employer failed to document business necessity for acceptance of only a B.S. in Education by asserting that it would be economically infeasible to train a U.S. worker with an alternative degree in the field of intended employment); The Dwight School , 93-INA-58 (Apr. 13, 1995) (certification denied where Employer did not adequately explain why it required a degree in Physical Education, but would not accept a degree in English, for the position of secondary school English/phys. ed. teacher); Friends of the Polish- American Assistance Corporation , 94-INA-191 (May 8, 1995) (failure to document business necessity for asters degree).

CO properly found that educational requirements were unduly restrictive where Employer failed to establish why an employee having experience in the job skills could not perform the job as well as a person with the educational degree sought. Bankers Trust Company , 94-INA-265 (May 30, 1995).

a. Proper classification under the DOT

no new cases

2. Determination whether requirement is justified by business necessity

Denial of labor certification reversed where Employer attempted to amend its requirements to meet the objections for the CO at each stage of the process. The panel concluded that Employer adequately demonstrated the need for a degree or its equivalent given its documentation that the industry norm is to require at a minimum a Bachelors degree with preference for a Masters in the position of Senior Systems Analyst and that virtually all of its approximately 600 employees that perform the duties of a Systems Analyst have at least three years of university education and three years of experience as Systems Analysts. Syntel, Inc. , 94-INA-103 (Apr. 7, 1995).

Employer failed to document business necessity for a requirement of Master's Degree in Construction Management for the position of Construction Management Engineer. The Employer did not provide documentation bearing on the question of why an applicant holding a similar degree could not perform the job duties as listed; rather Employer's statements and documentation on rebuttal merely reiterated its original position. Decoma Industries , 93-INA-296 (May 9, 1995).

Where Employer's requirement of one year of education and one year of experience exceeded the SVP maximum requirement for Child Tutor, rebuttal showing the demand for child care providers who have completed one year and two year programs was insufficient to establish business necessity for the requirement, especially where there was no evidence that an applicant with one year of training could not competently perform the job duties. Teresa Yancey Crane , 94-INA-28 (Apr. 28, 1995).

Business necessity for a restrictive degree requirement was not established where the Employer failed to provide any supporting documentation. John Hancock Financial Services , 91-INA-131 (June 14, 1992).

Employer failed to establish business necessity for a medical degree requirement where it offered only "general statements favoring effective utilization of the time and skills of physicians, the need for specialized medical administrators, (and) cost effectiveness in medicine." An, Inc. , 90-INA-505 (Jan. 19, 1993) (Judge Romano dissented and stated that the CO never afforded Employer the opportunity to establish that the requirement was customary for the job).

A panel concluded that the specific degree requirement in International Relations bore a reasonable relationship to the job of International Public Relations Specialist, but that the Employer failed to document that it was essential to the performance of the job's duties. The panel noted that "Employer provides no basis for its assertion that a Master's degree in another program such as International Management or International Business is not relevant to the performance of the job duties." Law Offices of Denise Breakman & Assoc. , 92-INA-265 (May 25, 1993). In Coopers & Lybrand , 92-INA-302 (May 26, 1993), the same panel affirmed the denial of labor certification where the Employer advertised the job as requiring a bachelor's degree in information systems in the ETA-750A but conceded that a degree in computer science would also have been acceptable. The panel concluded that "[s]ince Employer has suggested . . . that another major, such as computer science would be acceptable, it has not justified limiting its bachelor's degree requirement to one in information systems."

Employer established business necessity for its requirement that the Manager/Chief Consulting Engineer have a bachelor's degree in marketing. The panel noted that the job included marketing responsibilities and Employer had "documented the highly sophisticated and competitive nature of its business" in the factory trawler industry which warranted the bachelor's degree. Rena Box Packaging, Inc ., 91-INA-197 (July 16, 1992).

Taking official notice of the Department of Labor's Occupational Outlook Handbook (1990) pursuant to 29 C.F.R. § 18.201(b) (3), a panel concluded that Employer's requirement of a Master's Degree for the position of Chief Accountant was a business necessity as Employer was "a sizeable corporation" and the applicant would supervise six other accountants. The Cherokee Group , 91-INA-280 (Nov. 4, 1992).

Initially noting that Employer's degree requirement did not exceed the SVP for a consultant, the panel further held that business necessity for the requirement of a Master's degree for the job of System Consultant was established where:

The context of Employer's business is that it furnishes consultants to its clients in accordance with the client's specifications. Consequently, the Master's degree requirement bears a reasonable relationship to such business as it is being required by the client. It follows that it is essential to the performance of the consulting position that the employee have the required degree.

Princeton Information, Ltd. , 91-INA-116 (Nov. 24, 1992).

Employer failed to establish business necessity for its "two-year secretarial school education" requirement and, although Employer did not reject any applicants for lack of this requirement, labor certification was properly denied because "the requirement has the effect of discouraging experienced secretaries from applying for the job." Wells Laboratories, Inc. , 92-INA-162 (Mar. 12, 1992).

Business necessity for a medical degree requirement was not established where the Employer merely asserted that it was a necessity without any evidential support. Pars edical Clinic , 91-INA-241 (Apr. 7, 1993).

Employer failed to establish business necessity for its requirement that applicants possess "200 units of credit towards Apprenticeship in the Society of Actuaries" as it did not provide the CO with a survey of other companies regarding the number of units normally required for the position of Assistant Actuary. Indeed, the panel noted that "Employer does concede, at least, that there is no set norm, no exact standard." Heritage utual Insurance Co. , 92-INA-37 (Apr. 2, 1993).

Employer's requirement that applicant have a college degree for a restaurant food service manager position was found unduly restrictive where the Alien's college degree concentration was in philosophy which is neither a preferred nor a related degree under the Directory of Occupational Titles standard for this occupation and where Employer has not shown business necessity for requiring U.S. applicants to have such a degree. Kew Gardens , 92-INA-406 (Oct. 29, 1993)

Employer failed to document business necessity for its requirement that an applicant for the position of Teacher- Director of Tennis Development possess a college degree in Vocational Adult Education. Employer provided only broad generalizations regarding its objectives, rather than a specific discussion of the job duties requiring vocational expertise. The panel noted that it could only speculate what type of vocational counseling would be given both adult and junior tennis players once they decided to embark on a professional tennis career. Cherokee Town & Country Club, Inc. , 92-INA-148 (Dec. 8, 1993).

Labor certification properly denied where the specific vocational preparation (SVP) level for the job is between 2 to 4 years but where Employer's minimum stated requirements are a asters Degree plus 2 years of experience, equivalent to 5 years SVP. The panel found the Employer's Personnel Director's statements that the requirements are necessary and that it would be difficult to train an unqualified person to be opinion and not adequate documentation for establishing business necessity. Environmental Innovations Corp , 93-INA-91 (Jan. 4, 1994).

Labor certification was properly denied where, in response to the CO's request that the Employer document the business necessity of a Real Estate Broker's license for the position of Real Estate Appraiser, Employer only submits a signed statement by Employer's principal that the license "is not necessary, but is recommended". GAO Assoc. , 93-INA-83.

Business necessity for a restrictive job requirement is not established where an Employer fails to provide supporting documentation. See John Hancock Financial Services , 91-INA-131 (June 4, 1992). For the position of transportation specialist the Employer required a bachelor's degree in transportation management. Justifying this, the Employer stated in rebuttal that the degree was a requirement of upmost importance. DNT International, Inc ., 93-INA-463 (Mar. 15, 1996).

3. Grade point average [NEW]

Labor certification was properly denied where Employer required a certain grade point average but failed to document that similar firms generally required such an average. The panel also noted that the job offered was an entry level position and the fact that "[t]here is no reasonable obvious connection between a 3.5 GPA in actuarial studies and the mastery of the skill of communication that Employer says it needs . . .." A. Foster Higgins & Co. , 92-INA-390 (July 29, 1993).

4. Research paper [NEW]

Labor certification properly denied where Employer failed to establish business necessity for the requirement of a research paper on "progressive education" for the position of archivist at a "progressive school." The panel maintained that the job duties as stated appear general in nature and that it is reasonable that an individual with a degree and background in education would be capable of performing the general functions within the specialized "subarea". The City and Country School , 93-INA-114 (Aug. 23, 1994).

C. Experience

1. Determination whether requirement is unduly restrictive

Employer's requirement that the position of audit clerk be filled by an applicant with two years experience as an actual audit clerk was unduly restrictive and excluded other applicants with similar experience. Holiday Lodge , 94-INA-400 (June 9, 1995).

a. Determination whether requirement falls within SVP standard

no new cases

b. Experience in related field or job offered

i. Consideration of whether related experience could be qualifying

Where Employer fails to demonstrate that experience in another, related job, would also be sufficient instead of only requiring experience in the listed job, the prior employment requirement is unduly restrictive and certification was properly denied. Colortex , 94-INA-429 (Jan. 10, 1996).

ii. Experience in job offered includes experience in duties

Citing to Integrated Software Systems, Inc. , 88-INA-200 (July 6, 1988), the panel specified that "with respect to Employer's requirement of one year experience in the job itself, what is required to satisfy this qualification is experience in actually performing the duties of the job, not merely in having its title." The Pacific Club , 93- INA-25 (Jan. 24, 1994).

When experience in the job itself is required, what is meant is experience in the job duties, not the job title. See Pacific Club , 93-INA-25 (Jan. 24, 1994). For the position of sample maker, children's clothing, Employer required 2 years of experience in the job offered. The DOT had no listing for sample maker, children's clothing even though it listed the position of sample maker (in general). Employer listed duties that did not relate to children's clothing but merely to sample making in general. Florinda Fashions, Inc ., 94-INA-458 (Oct. 13, 1995).

The first prong of the Information Industries test is always satisfied with with respect to a requirement that there be experience in the job offered, but the second prong requires a determination to be made. See National Institute for Petroleum and Energy Research , 88-INA-535 (Mar. 17, 1989). Employer, in the textile business, required 2 years of experience in children's clothing for the position of sample maker, children's clothing. Although the DOT listed 2 years of experience as an acceptable requirement for the position of sample maker, it had no classification for sample maker, children's clothing. The Board affirmed the CO's denial of labor certification. Florinda Fashions, Inc ., 94-INA-458 (Oct. 13, 1995).

iii. Alternative experience requirement

Labor certification granted for position of "Cook" where Employer's primary minimum requirement, 2 years experience in the job, was within the DOT standards, but where alternate experience requirement of 2 years as "Housekeeper" with cooking duties. The CO denied certification because the alternative requirement exceeded the DOT The panel, however, reasoned that so long as secondary requirement only an alternate requirement, not unduly restrictive. Henry L. Malloy (Mr. & Mrs.) , 93-INA-355 (Oct. 5, 1994). See also Avanti Restaurant & Club , 93-INA-320 (Sep. 27, 1994) (where request of 9 months training in "Hotel Management" is merely an alternate experience requirement and it is appropriate to and related to the job, such requirement is not unduly restrictive).

Although Employer's description of its alternative job qualifications raises significant and unnecessary risks of confusion, delay, and conflicting interpretations, that description ultimately does not present unduly restrictive job requirements within the meaning of 656.21 (b) (2) since the primary requirements are entirely straightforward, not unduly restrictive and a careful reading of the alternative requirements shows them to be expansive rather than restrictive. Systems International, Inc. , 92-INA-60 (Aug. 24, 1993).

The Alien qualified for the position of Garde Manger by virtue of the alternative experience requirement of two years experience in the position of Salad Maker. The panel acknowledged that the alternative experience requirement could not be challenged as unduly restrictive under the rationale of an earlier panel decision, Best Luggage, Inc. , 88-INA-553 (Nov. 1, 1989). Nonetheless, where, as here, the Alien qualifies for the position solely under the alternative requirement and there are other equally related occupations, the holding of Best Luggage is overbroad and the CO may require Employer to document why experience in other similarly related occupations, such as a chef or cook, are not equally qualifying. Such an inquiry does not constitute an impermissible substitution of the CO's judgement for Employer's as prohibited in Bronx Medical , 90-INA- 478 (Oct. 30, 1992) ( en banc ). Because Employer did not document any of its assertions why experience in other related occupations would not qualify an applicant for the position, certification was properly denied. Third Choice, Inc., T/A Eppes Essen , 93-INA-529 (Dec. 30, 1994).

Denial of certification reversed and certification granted where advertisement clearly stated that the minimum requirements for the position of Medical Assistant were either two years experience as a respiratory technician, or two years experience as a physician's assistant, or qualification as a physician. Because alternate experience requirements were acceptable, the CO incorrectly concluded that the option of qualifying as a physician was unduly restrictive and tailored to the Alien. Miroslaw Kielak (M.D.) , 94-INA-67 (Nov. 30, 1994).

Requirement that applicant possess either four years experience in the job (cook), or equal alternative experience as a kitchen helper was found unduly restrictive where the Alien qualified for the job by virtue of the alternative requirement. Employer maintained that allowing applicants to qualify for the position of cook with experience of a kitchen helper expanded the universe of potential applicants. The panel, however, concluded that because Employer did not show that the duties of a kitchen helper related to the duties of a cook, Employer essentially hired the Alien as a cook without any related experience whatsoever. Because Employer did not document that it is not presently feasible to offer the same opportunity to a U.S. applicant, denial of certification was proper. Inexmezzo, Inc., t/a Ristorante Portofino (a/k/a Portofino Restaurant , 94-INA-25 (Mar. 8, 1995); Tres Amigos Mexican Restaurant , 94-INA-30 (April 10, 1995) (Employer did not demonstrate that kitchen helper as alternate experience was sufficiently related to specialty cook and Alien had qualified by virtue of alternate experience requirement).

Where Employer's alternative experience requirement allows an applicant to qualify for the position through a combination of lesser formal education and experience in the job, that alternative experience requirement was not deemed restrictive to the Alien; rather such alternative requirement was expansive and increased the pool of potentially available applicants. Syntel, Inc. , 94-INA-103 (Apr. 7, 1995).

Dr. Jerard Hurwitz , 94-INA-587 (July 24, 1996) (reversing the CO who denied certification solely on the basis of an excessive alternative requirement because the Employer's use of alternative requirements "does not chill but expands the universe of potentially qualified U.S. applicants"); Gail Bratman , 94-INA-568 (Aug. 30, 1996).

The addition of an alternative requirement may be restrictive rather than expansive when the alternative requirement is tailored to the Alien's background and bears no relationship to the job offered. See Intermezzo, Inc. t/a Ristorante Portofino , 94-INA-25 (Mar. 8, 1995). The Winner's Circle , 94-INA-544 (Oct. 31, 1996) ( en banc review pending) (reversing the CO and granting certification for the position of Italian specialty cook where the CO's sole basis of denial was that 2 years experience in the related occupation of salad maker was unduly restrictive because the specific vocational preparation for the position of salad maker was irrelevant).

Where the primary requirements are entirely straightforward, not unduly restrictive and a careful reading of the alternative requirements shows them to be responsive rather than restrictive, the alternative requirements are not unduly restrictive. See Systems International, Inc. , 92-INA-60 (Aug. 24, 1993); Best Luggage, Inc. , 88-INA-553 (Nov. 1, 1989). The CO mistakenly labeled an alternative experience requirement of 2 experience for the position as housekeeper as unduly restrictive because anyone with 2 years of experience as a housekeeper could apply whether or not they had experience as a cook. CO affirmed on other grounds. Francis Kellogg , 94-INA-465 (Jan. 13, 1997).

Employer applied for certification for the position of live-in cook. Employer required at a minimum 2 years experience in the job offered or 2 years in the related position of live-in housekeeper. The CO denied certification because, according to the DOT, the normal requirements for the related position of houseworker, general, is a maximum of 3 months training or experience. According to the CO, Employer's requirement of 2 years experience was unduly restrictive. The Board reversed the CO. Citing Henry L. Malloy ( Mr. & Mrs. ), 93-INA-355 (Oct. 5, 1994) (holding that requiring 2 years of experience as a housekeeper was not unduly restrictive as an alternative to 2 years experience as a cook for the position of cook because, since housekeeper was only alternative experience, it was not unduly restrictive to require more than the SVP in the DOT for "Houseworker.") and Avanti Restaurant & Club , 93-INA-320 (Sept. 27, 1994) ("[A]n experience requirement is not unduly restrictive where it is merely an alternative to experience in the job offered, and it is appropriate and related to the job."), the Board reasoned the job opportunity at issue in this case was for a "Household Cook" and not a "Houseworker, General." The SVP range, the Board noted, was 2 years for the former and not 3 months. Susan Sarandon , 95-INA-118 (Oct. 29, 1996).

The addition of an alternative requirement may be restrictive rather than expansive when the alternative requirement is tailored to the Alien's backgropund and bears no relationship to the job offered. See Intermezzo, Inc. t/a Ristorante Portofino , 94-INA-25 (Mar. 8, 1995). The Board reversed the determination that the requirement was unduly restrictive because 4 years of college is considered the equivilant of 2 years of experience, because even though the 4 year alternative mat be taylored to the Alien, it nonetheless broadens the pool of available applicants and because the alternative requirement was related to position at issue. Broadway Hats and Caps, Inc ., 94-INA-460 (Feb. 26, 1996).

As long as an Employer is willing to accept applicants whose training and or experience corresponds to that provided for the position in the DOT an alternative experience in a related field which Employer is willing also to accept cannot be considered excessive. For the position of home attendant Employer required 3 months experience in the job offered or 3 months experience as a nurse. The CO considered the requirement unduly restrictive but the Board reversed the CO. Mr. & Mrs. Wenelin Janowiak , 94-INA-317 (May 25, 1995).

2. Determination whether requirement is justified by business necessity

Denial of certification affirmed where Employer did not establish that the garment industry now required two years of experience for sewing machine operators as opposed to the three month experience requirement specified in the DOT Although the documents submitted addressed a change in the industry, none of the evidence specifically supported a finding that two years of experience is the minimum required for a qualified sewing machine operator. Accordingly, business necessity was not established for the two year requirement. Juniata Garment Company, Inc. , 93-INA-358 through 93-INA-417 and 93-INA-565 (Oct. 31, 1994). See also Sung Sportswear, Inc. , 94-INA-491 through 94-INA-497 (Apr. 7, 1995); Pawnee Pants Mfg. Co., Inc. , 94-INA-148 through 94-INA-167 & 94- INA-252 through 94-INA-261 (Apr. 7, 1995); F.M.G., Inc. , 94-INA-72 through 94-INA-94 (Apr. 7, 1994); Villa Fashions , 93-INA-418 through 93-INA-425, Kang's Fashions International, Inc. , 93-INA-426 through 93-INA-430 and Diane Fashion, Inc. , 93-INA-431 through 93-INA-456 (Apr. 7, 1995).

Labor certification properly denied where Employer required one and a half year experience as a Pharmacist but it was apparent that the position was actually for a Pharmacy Intern. Under state regulations, qualification as a Pharmacy Intern does not require experience as a Pharmacist; indeed, it would be illogical for someone to apply for an internship position if they already possessed experience as a Pharmacist. Accordingly the panel agreed with the CO that the minimum requirements as stated were unduly restrictive and tailored to the Alien's background. Nevins Pharmacy, Inc. , 94-INA-119 (Apr. 6, 1995).

a. Factors supporting business necessity

no new cases

b. Factors not supporting business necessity

i. Enhancement of the business

Employer failed to document business necessity for special requirement that job applicant for position of Artist be from the unofficial group of Russian artists during the years before perestroika. Employer's statement that the Alien's paintings are in demand and can be sold at a profit is not sufficient to document business necessity. Phyllis Kind Gallery, Inc. , 92-INA-423 (Oct. 11, 1994).

Where Employer required 12 to 18 months of experience as a travel agent, while conceding that only three to six months was customary, business necessity was not established where Employer asserted that "a more experienced worker would be better, and would enhance the quality of the business." Likewise, Employer's assertion that "valuable contracts available through the Alien" would not be available through a U.S. worker did not constitute business necessity for the requirement. Broman Travco International, Inc. , 90-INA-388 (May 21, 1992).

Employer failed to establish business necessity for requiring Bahamian cooking experience. In support of this finding, the panel noted the following:

[T]his restaurant had not previously offered this type of cooking; the restaurant seemed to offer a distinct cooking style of its own; there was no evidence of planning for the new service; the job requirements though special, were minimal and mirrored those of the Alien worker; and Employer had rejected a U.S. worker with 5 years' experience as a cook.

The Lighthouse Restaurant , 90-INA-518 (July 14, 1992).

No business necessity was established for a requirement of 10 months of experience as a teaching assistant in computer aided design and microprocessing design in that the record evidenced that the Alien obtained this experience after being hired by Employer. Intersystems Corp. , 92-INA-15 (Dec. 28, 1992).

No business necessity for knowledge of the Wordstar word processing program was established where Employer offered no basis for a requirement of training in this area other than "broad statements about the difficulty of becoming proficient in new word processing packages in general." Midtown Legal Bureau, P.C. , 92-INA-35 (Dec. 23, 1992).

Business necessity established where Employer, an Indian restaurant, provided a reasonable and specific showing that speciality restaurant tandoori style cooking requires a sufficiently unique level of training and experience to meet the Information Industries business necessity standard. Samrat Indian Cuisine , 92-INA-87 (Dec. 22, 1993).

Employer's requirement that applicant have experience working with handicapped students was restrictive for position of elementary school classroom teacher. Further, in its rebuttal the Employer failed to explain how experience assisting handicapped persons was used in the job opportunity provided. The panel agreed with the CO that Employer's rebuttal, that such experience is necessary because the school has handicap access and handicapped students and teachers, was vague and unresponsive and did not establish business necessity. Sacred Heart School , 92-INA-318 (Jan. 4, 1994).

The Board recently cited Venture International Assoc., Ltd. , 87-INA-569 (Jan. 13, 1989) ( en banc ) and noted that the "fact that a more experienced worker...would enhance the quality of the business is insufficient to establish business necessity." The Employer applied for certification for the position of Custom Hand Wood Turner and required 3 years of experience. The CO issued a NOF questioning the business necessity of 3 years of experience when the normal requirement was 6 months to 1 year. In rebuttal, Employer submitted a 2 page pamphlet illustrating work his company performed. The pamphlet was submitted to demonstrate the "that his business performs custom wood turning as opposed to basic lathe turning." In addition, Employer argued that the position offered can "only be learned from practice and experience" and that his company, unlike others, does not operate machine chisels. The Board affirmed the CO's denial of certification. Mohamad Wood Turning, Inc. , 95-INA-309 (Feb. 6, 1997).

ii. Alien gained experience on the job

no new cases

c. Undocumented assertions

i. In general

Employer failed to establish the business necessity for a requirement of two years of experience for the position of Children's Tutor/Houseworker where on rebuttal she asserted the that the requirement was based on her experience as a grade school teacher, but where she did not elaborate on how that experience permitted her to evaluate those requirements. The panel also found as unpersuasive Employer's argument that the two year experience requirement was proper because the position also involved cooking spanish food and the DOT permits that requirement for cooking in a commercial capacity. The panel distinguished the duties in the commercial context, finding that they are not normally required of a Children's Tutor/Houseworker. Reuben Rodriguez , 94-INA-63 (Apr. 28, 1995) Seealso Badri Khosroabadi , 94-INA-201 (May 15, 1995) (undocumented assertion that restrictive two year requirement for Child Tutor necessary because children are gifted insufficient to establish business necessity).

Employer failed to establish business necessity for a banking experience requirement as the job involved "the development of equipment to manufacture hi-tech electronic products" and the record did not yield evidence that the applicant would be principally or preeminently engaged in such activity. Gaard Automation , 90-INA-582 (Jan. 31, 1992).

Employer failed to establish business necessity for a requirement of two years of specialized experience in gourmet foods where its "bare assertions" were "unsupported by any probative evidence." ATCO Trading, Inc. , 91-INA-102 (May 4, 1992). See also Garden Manor Retirement anor , 92-INA-380 (July 28, 1993) (requirement of three months of dishwashing experience for the job of dishwasher not supported); Narver Associates, Inc. ,91-INA-154 (Mar. 30, 1993).

Business necessity for "labpack experience" was not established where the Employer merely asserted that the two days of required experience was necessary "to provide our customers with our full scope of professional labpacking service with a minimal amount of supervision." Moreover, the panel held that a requirement of only two days of such experience was not a valid prerequisite "since it comes under the category of a normal new job orientation of short duration." Chemical Processors, Inc. , 92-INA-219 (July 19, 1993).

Employer failed to establish business necessity for a requirement that the Accountant "be familiar with the technical terminology relating to freight shipping." Although supporting documentation in the form of "accounts receivable reports to shipping invoices" demonstrated that the requirement bears a reasonable relationship to the job, there is no persuasive evidence that the requirement is essential to the performance of the job duties. Indeed, Employer did not establish that "the terminology and abbreviations customarily used in the freight forwarding industry are so difficult or complex that an otherwise competent accountant can be brought up to speed in a relatively short period of time with a minimal amount of orientation training." Morrison Express Corp. , 91-INA-77 (Apr. 30, 1992).

The Employer failed to demonstrate business necessity for its requirement of three years of experience in "designing and developing certain application systems" and "using specific computer languages." On rebuttal, Employer merely asserted that it worked "under a contract with a major client (which) involves such high technology that only 'seasoned' workers are qualified to perform the work." The panel noted that Employer's preference or a mere assertion of "business enhancement" is insufficient to establish business necessity for the requirement. Sequel Concepts, Inc. , 91-INA-329 (Mar. 12, 1993). See also North Shore Hebrew Academy , 92-INA-313 (Dec. 17, 1993) (Employer's assertion that restrictive three year experience requirement is "good for the position" insufficient to establish business necessity); Paragon Computer Professions, Inc. , 92-INA-306 (Nov. 18, 1993); Phyllis Kind Gallery, Inc. , 93-INA-56 (Oct. 13, 1993) (restatement of Alien's qualifications and experience upon rebuttal does not constitute documentation of business necessity for the unduly restrictive requirements).

Labor certification was properly denied where Employer failed to document "business necessity for the eleven different software/hardware duties incorporated in the requirements of experience in the job offered." An assertion that Employer's "client is happy with the job being performed by the Alien" is insufficient. ST Systems, Inc. , 92-INA-279 (Sept. 2, 1993).

Labor certification was properly denied where Employer asserted required knowledge of eight specific computer languages and additional special requirement of two years experience in Adabas and Natural applications. The CO properly found these requirements unduly restrictive. In addition Employer's rebuttal evidence, showing that its other employee possessed a variety of different experience, did not establish business necessity. Paragon Computer Professionals, Inc. , 92-INA- 315 (Dec. 8, 1993).

Employer failed to document the business necessity for its requirement that any applicant for the position of Real Estate Analyst possess a professional tennis championship. The panel noted that Employer did not document that all of its other similarly employed analysts were "tennis champions". Because the requirement was deemed so exclusionary and so distant from the basic job duties, the panel indicated that Employer has a substantial burden to prove business necessity. International Management Group , 92-INA-217 (Sept. 30, 1993).

Labor certification properly denied where Employer failed to document the business necessity for the requirement of two years experience for a child tutor. Michael alone , 94-INA-187 (May 26, 1995).

Employer recently cited Pique Nique, Inc. , 88-INA-451 (Aug. 30, 1989) and noted that "business necessity cannot be established by an Employer's assertion that the business is highly specialized." Employer applied for certification for the position of Custom Hand Wood Turner and required 3 years of experience. The CO issued a NOF questioning the business necessity of 3 years of experience when the normal requirement was 6 months to 1 year. In rebuttal, Employer submitted a 2 page pamphlet illustrating work his company performed. The pamphlet was submitted to demonstrate the "that his business performs custom wood turning as opposed to basic lathe turning." In addition, the Employer argued that the position offered can "only be learned from practice and experience" and that his company, unlike others, does not operate machine chisels. The Board affirmed the CO's denial of certification. Mohamad Wood Turning, Inc. , 95-INA-309 (Feb. 6, 1997).

ii. Self-evident business acumen

no new cases

d. Experience in the job offered

i. Burden of proof

no new cases

ii. Limitation not justified if alternative experience would be qualifying

no new cases

e. Residency requirement for graduates of foreign medical schools

no new cases

D. Hours of employment

1. Determination whether hours are normal for the occupation

Where Employer requested a worker for a position that was a 7 day work week, with no days off, and where Employer could not establish business necessity for the restrictions, certification was properly denied. Jerry Leipzig , 94-INA-448 (Jan. 11, 1996).

2. Excessive hours

no new cases

3. Occasional stay-over

no new cases

4. Split shift

CO's denial of labor certification reversed and certification granted where Employer documented business necessity for split shift domestic cook based on physician's and dietician's opinions indicating that Employers' medical conditions required special diet. Employer also submitted documentation persuasively describing the special skills, knowledge, attention and time necessary to plan and prepare special menus. Finally, Employer provided a specific work schedule indicating when and what duties the cook would perform in different time slots. Gregory G. Khaklos , 94-INA-50 (Nov. 16, 1994).

Employer pharmacy owner meets the Information Industries business necessity test when the pharmacist job requirement in question is a "split shift" because the owner operates more than one pharmacy and spends time each day working in each pharmacy, and during the time that he is in each pharmacy the services of the employee are not needed. Jamron Drugs , 94-INA-550 (Oct. 31, 1996)

E. Knowledge/familiarity

1. Determination whether requirement is unduly restrictive

Employer's special requirement of "knowledge" and "mastery" in the "properties" of Middle Eastern cooking is not impermissibly vague. Where an Employer requires knowledge of or familiarity with a product, system of procedure, Employer must show business necessity. Employer here required 18 months experience in the job, which was not questioned by the CO. Because Employer specializes in Middle Eastern cuisine, its special requirement can reasonably be read to require that an applicant with 18 months experience should have "mastered" the skill of cooking the particular cuisine and must "know" the kind ("properties") of spices and their use in such cooking. The panel concluded that "such requirements certainly bear a reasonable relationship to Employer's business and are essential to performing the job of a Middle Eastern Cook in a reasonable manner. Avanti Restaurant & Club , 93-INA- 320 (Sep. 27, 1994).

Requirement of "knowledge of worldwide accommodations & travel" not specific and prohibits proper testing of the labor market. Accordingly, the CO properly required Employer to either delete the requirement or document how such arises from business necessity. Pan Express Travel, Inc. , 93-INA-178 (Jan. 31, 1995).

2. Determination whether requirement is justified by business necessity

a. In general

Labor certification properly denied where Employer failed to show business necessity for requiring specific computer language experience. Rebuttal evidence failed to specifically address this issue properly raised in the NOF. Norwood Computer Services, Inc. , 93-INA-232 (Jul. 8, 1994). See also County of Fauquier, Department of Community Development , 93-INA-540 (Dec. 21, 1994) (Employer's assertion that applicant could not become proficient in required Microsoft Word with minimal training was unsupported).

Requirement of knowledge in three particular computer languages unduly restrictive and business necessity not shown. Employer failed to document that the applicant, an engineer familiar with Employer's AutoCAD system, would not be able to use three particular software packages; "[i]n fact, the [e]mployer's position suggests that any time there is a modification made in its computer system, such as the addition of a new computer language, that its current mechanical engineers would become unqualified for their positions unless by happenstance, they were also proficient in the new system or software. Hankin Environmental Systems, Inc. , 93-INA-276 (Oct. 25, 1994).

Employer's explanation that "knowledge of worldwide accommodation & travel" has a specific and definite meaning within the travel industry, comparable to requiring "knowledge in putting together itineraries utilizing worldwide tickets with travel business" does not indicate business necessity for the requirement. As evidenced by Employer's rejection of two applicants for lack of specific experience arranging African itineraries, Employer's requirement is not sufficiently specific to allow a fair testing of the labor market. Pan Express Travel, Inc. , 93-INA-178 (Jan. 31, 1995).

The Employer established business necessity for its hardware and software requirements for the job offered as Senior Analyst to show that it "did normally require those qualifications and had a history of numerous hirings based upon them." The First Boston Corp. , 90-INA-477 (Oct. 31, 1992). Seealso Lucio Puzzi , 91-INA-80 (July 15, 1992).

The Employer failed to establish business necessity for its requirement of "knowledge of the international apparel industry" where the Alien was hired without this knowledge and the panel "infer[red]" that the Alien adequately performed the duties of the job. Pinky Originals, Inc. , 92-INA-32 (Mar. 3, 1993).

Employer failed to establish business necessity for requiring a combination of experience in various specific software packages where the systems analyst position is apparently an entry level position and, as Employer concedes, the combination of computer skills specifically required are just a few of the hundreds of combination of computer skills used today. Employer failed to document why the stated combination of requirements "are not just a mix and match of computer skills, from the hundreds available, narrowly tracking [the Alien's] particular background. Computer Horizons Corp. , 92-INA-4 (Sept. 1, 1993).

b. Employer's own product, system or procedure

no new cases

i. In general, adequacy of documentation

no new cases

ii. CO's reasonable request for information

no new cases

iii. Existence of similar products, systems or procedures

no new cases

iv. Transferability of management skills

no new cases

F. Licenses and certifications

1. Driver's license

no new cases

2. Teaching certificates or licenses

no new cases

3. Medical licenses

no new cases

4. Secretarial certificate

no new cases

G. Memberships

no new cases

H. Skills

1. Artistic ability

no new cases

2. Grade point average

no new cases

3. High sports ranking

no new cases

4. Typing proficiency

no new cases

5. Swimming ability

Employer established business necessity for a requirement that the child monitor be able to swim where she had three children under nine years of age and a fenced-in pool in her back yard. Employer submitted a study which demonstrated that "children from 0-9 years are in the high risk category of drowning" and that more drownings occur in residential, rather than public, pools. Moreover, Employer submitted a letter from the Chair of the Drowning Prevention Foundation recommending "that the child monitor be able to swim because she supervises the children." Jill Hertzberg , 90-INA-449 (May 18, 1992). See also Craig Blenkhorn , 91-INA-61 (May 21, 1992).

I. Travel

Employer failed to establish business necessity for its travel requirement asserting that "it must purchase its merchandise directly from India in order to purchase at competitive prices." The panel noted that Employer presented "no evidence demonstrating price differentials, documenting the money to be saved, or showing that the expense of travel to India to purchase its merchandise would be justified." Mint Beverly Hills, Inc. , 90-INA-319 (Oct. 15, 1992).

J. Trustworthiness

no new cases

X. Employer's preference as a requirement

no new cases