Judges' Benchbook: Alien Labor Certification

Office of Administrative Law Judges
United States Department of Labor

Second Edition - May 1992

CHAPTER 6 -- SUPPLEMENT

Supplement current through January 1997

BONA FIDE JOB OPPORTUNITY

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TABLE OF CONTENTS

I. Source of requirement of bona fide job opportunity

II. Contexts in which lack of bona fide job opportunity provides grounds for denial of certification

III. Contexts in which lack of bona fide job opportunity is not properly raised

IV. A job opportunity clearly open to qualified U.S. workers [new]

I. Source of requirement of bona fide job opportunity

An employer has burden of showing that bona fide job opportunity exists and is open to U.S. workers. See Amger Corp. , 87-INA- 545 (October 15, 1987) (en banc). State of California Dept. of Consumer Affairs , 94- INA-396 (July 18, 1995).

See also Analysts International Corp. , 95-INA-62 (Dec. 23, 1996) (denying certification for the position of software consultant where Employer required a B.S. in computer science or electrical engineering, where Alien had a B.S. in electronics and computer technology but where Employer failed to include the words "or equivalent" after its degree requirement); Germania Club, Inc. , 94-INA-391 (May 25, 1995) (approving of a CO's request for evidence from Employer that a bona fide job opportunity exists but remanding on other grounds).

Employer applied for labor certification for the position of coordinator of Russian events, Russian band leader, the duties of which Employer now performs. The CO challenged whether a bona fide job opportunity existed. Employer's response, which included invoices and 1099 forms that indicate that he does a substantial business, evidence that the Russian immigrant population is expanding in the area of his business, evidence that has had permanent employees in the past, and evidence that he has sufficient funds to pay the $31,845 salary for the position was sufficient to rebut the CO's challenge since the CO did not request other specific documentation. Simcha Productions , 93-INA-545 (July 17, 1995).

II. Contexts in which lack of bona fide job opportunity provides grounds for denial of certification

Labor Certification properly denied where the CO initially questioned the existence of a bona fide job and Employer's rebuttal only established the legitimate nature of Employer's business, not the bona fide nature of the job. Atherton Development & Engineering Corp. , 92-INA-422 (May 11, 1994).

No bona fide job opportunity existed where Employer indicated that Alien, half-owner in the company, is necessary in the U.S. in order to run the company after the current company president's imminent retirement. Library & Business International, Inc. , 93-INA-251 (Apr. 19, 1994).

Labor certification properly denied where CO properly questioned the bona fide nature of a "Financial Economist" position at an auto repair shop after review of state employment and tax records. Employer failed to submit relevant and readily available documentation in rebuttal as requested by the CO. Bob's Chevron , 93-INA-498 (May 31, 1994).

No bona fide job opportunity existed where Employer required child tutor to work between hours of 11:00 a.m. and 8:00 but children were at day-care or in school during much of this time. Ms. Ruth Hai , 93-INA-111 (Jun. 9, 1994).

No bona fide opportunity existed for a full-time educational tutor, justifying two year experience requirement, for children ranging in age 4 and one half to 16. The panel noted the drastic age difference between children and the fact that Employer's assertions made position appear more properly categorized as a child tutor, justifying only a one year experience requirement. Ivy H. Cheng , 93-INA-106 (Jun. 28, 1994).

No bona fide job opportunity and labor certification denied where 1) Employer required degree and experience in related job (which Alien possessed), but not a degree and experience in the job offered, and 2) otherwise qualified U.S. applicant rejected for lack of experience operating specific instruments. Desoto, Inc. , 91-INA-1 (Aug. 19, 1994).

No bona fide job opportunity and labor certification denied where Employer listed minimum requirements included experience in the job offered, yet it stated that its products are unique, that knowledge in similar products is not adequate and that certain of its products have no North American equivalent. The panel noted that one U.S. applicant not only had required degree, but had worked with Employer's products, while Alien was originally hired with minimal experience. While this was not raised as an issue by the CO, "the hiring practices of the [Employer] do tend to confirm rather than refute the CO's suspicion that this job opportunity is not open to U.S. applicants. Siemens Energy & Automation, Inc. , 93-INA-133 (Aug. 16, 1994).

No bona fide job opportunity for position of gynecologist (research) where Employer requires a medical degree and only four years of college, three years of experience in the job offered or three years of experience as practicing gynecologist. Alien, who received a four year medical degree in Iran and who practiced gynecology for 25 years in Iran, qualified under the alternate experience requirement. The panel concluded that the position was not clearly open to a qualified U.S. worker since no U.S. gynecologist could obtain a medical license and practice medicine with four years of college as Alien was able to do; "what Employer has done here is to have a job offer tailored to a college experience level which only Alien would have". 100 Plaza Clinical Lab , 93-INA-288 (Aug. 17, 1994).

No bona fide job existed where Alien is Employer's brother, there are only two other employees, Alien's qualifications exactly match the minimum requirements and Employer failed to document the absence of a relationship between the gem business in the U.S. and the one in India in which Alien is a partner. Ridhi Gems , 93-INA-312 (Oct. 25, 1994).

Where Employer originally listed the position as a child tutor, with hours of 9-5, then changed listing to tutor, with hours of 1-9, the panel found that it strained credibility to believe that there was a bona fide job. The panel agreed with the CO that it appeared unlikely that there was a bona fide job considering there is only one 13 year old child in the household and that child attends school everyday until 3:00. However, because the CO did not clearly afford Employer an opportunity to present evidence to the contrary, the case was remanded with specific instruction that Employer supply certain relevant documentation. Elmer T. Vielbig , 93-INA-107 (Dec. 22, 1994).

Labor certification properly denied because Employer's submission of a vague letter from a customer, letter from the attorney, photographs of a gas station and six invoices for repairs and towing service did not satisfactorily establish that the position of Night Manager was a bona fide job opportunity. None of the evidence established that anything other than the snack shop was open 24 hours and, therefore, while Employer may have established the need for a 24 hour cashier, it failed to document the need for a 24 hour Night Manager. Mobil New Carrolton , 94-INA-3 (Mar. 8, 1995).

No bona fide job existed where Employer contends that it is a viable business interested in hiring a worker at a wage of ,817.00 per month for 40 hours per week of work when Employer's documentation submitted with rebuttal indicates that five employees were paid a total of $421.69 per week, a wage substantially lower than that offered. Employer also failed to provide billing notices and a business license as requested by the CO. Accordingly, Employer has not established that it is a viable and successful business entity, able to pay the advertised wage. AZ Air Conditioning & Heating, Inc. , 93-INA-554 (Mar. 31, 1995).

Labor certification properly denied where Employer's statements that he applied for certification to "help" his brother, Alien, and that he could not afford to pay the prevailing wage, indicated that the job was not clearly open to U.S. workers, was created solely for Alien and that no bona fide job opportunity exists. My Sweetheart Bridals , 94- INA-139 (Apr. 28, 1995).

Employer failed to establish the existence of a bona fide job opportunity for a child monitor/housekeeper where no documentation was submitted to support the existence of a child. The panel stated the following:

We are in no way holding that a bona fide job opportunity cannot exist when a woman is expecting (a child) at the time she files her application for a child monitor. To the contrary, there can be a bona fide job, provided sufficient documentation has been submitted to show that a child is expected. Monica Murphy, 91-INA-281 (Aug. 17, 1992).

No bona fide job opportunity existed where Employer stated that "his brother 'is the only person who can replace me at my job because he knows the secrets of my production'". Moreover, Employer stated that he would be willing to train a U.S. worker for the job of baker on the "precondition that the prospective employee invest $40,000.00 in the business as Alien is apparently willing to do." Markowski's Bakery & Wedding Cakes , 91-INA-20 (Dec. 9, 1992). See also Gavina & Sons, Inc. , 93-INA-10 (March 18, 1994) (denying certification where Employer required that employee be family member).

Employer failed to submit "clear evidence" that a bona fide job opportunity existed where the CO challenged its need for a cloth designer but Employer merely "sold and manufactured draperies." Imad Itani Draperies , 91-INA-172 (Jan. 6, 1993).

Employer failed to comply with the CO's request for documentation to establish a bona fide job opportunity for an architect's assistant which included a request for information on "projects that required an architect, time spent performing architectural duties on each project, identity of workers who have performed the assistant's duties during this period, and how duties of an assistant differ from those of an architect." Employer only provided tax returns and unemployment records. North Wales Construction Corp. , 92-INA-23 (Feb. 18, 1993).

Labor certification was properly denied under § 656.50 for lack of a bona fide job opportunity where Employer required experience in "investigating feasibility of investment in construction projects in the Middle East" for a director of research development & analysis position, but failed to document that its "prospective expansion to the markets of that area (the Middle East) had been, could be, or ever would be implemented . . .." The CO correctly concluded that the job was designed to match the alien's qualifications and, distinguishing the decisions of Remington Products, Inc. , 89-INA-173 (Jan. 9, 1991) (en banc) and Azumano Travel Service, Inc. , 90-INA-215 (Sept. 4, 1991), the panel concluded that a definite, detailed plan for expansion was not supplied by Employer. BMVW, Inc. , 91-INA-355 (May 14, 1993). See also Rick Trading Corp. , 92-INA-375 (Aug. 26, 1993) (denying certification where Employer failed to document prospective expansion). However, labor certification was improperly denied where Employer, a jewelry shop, merely sought "to add the capability to perform jewelry repair and manufacture." The panel concluded that Employer's plans for expansion were definite, detailed, and credible. Guven Fine Jewelry , 92-INA-52, 434 (Aug. 26, 1993).

Labor certification was properly denied where Employer stated that Alien's "'employment was terminated when he was unable to produce the proper work authorization documents.'" The panel agreed with the CO that such a concession meant that there was no longer a bonafide job opening. Staffcon, Inc. , 92-INA-323 (July 19, 1993).

Labor certification was properly denied where position necessarily required Alien to commute approximately 180 miles each way, every day, to and from Employer's home, for the purpose of supervising Employer's child. The panel noted that the job duties required Alien to tutor child in good living habits and extra-curricular projects, in which Alien has no background. The bona fide nature of the position was especially questionable since the 13 year old child would be away at school for 3/4 of the time during which the job duties were to be performed. Betty Yeh Williamson , 92-INA-407 (Sept. 20, 1993).

The CO properly found no bona fide job opportunity open to U.S. workers where one applicant with a broad educational background and experience was rejected based on a perfunctory, two minute telephone interview. The panel found "no basis for concluding other than Mr. Wang's interview of Mr. Sun was a dismissive and perfunctory action, not a good faith effort to learn about a job applicant holding strong credentials for an open job opportunity." Mentor Imports, Inc. , 92-INA- 61 (Jan. 5, 1994).

Seeking certification for the position of gold exchange appraiser, Employer failed to adequately respond to the CO's request that Employer provide documentation that a bona fide job opportunity existed. The CO found that no bona fide job opportunity existed because Employer's tax returns showed a net profit of $15,208 in 1992 and $40,657 in 1993. Employer did not provide any documentation of site rental, lease or mortgage. The wages for Alien would be $22,252 plus overtime. The panel found that Employer's evidence, which included some invoices showing purchases of gold shot and other precious metals and a statement that its business is expanding rapidly, without any detailed, definite, or direct evidence of business expansion, evidence that showed Employer had other employees, evidence of a definite site or evidence that there is a business demand that it is not now satisfying, was insufficient documentation that a bona fide job opportunity existed. Jacart Gold Exchange , 94-INA-614 (Aug. 16, 1996).

No bona fide job opportunity exists when Employer's tax records indicate an inability to pay an employee's wages and the records show a decrease in gross sales in recent years. Fred's Allaf Jewelers , 94-INA-620 (Aug. 15, 1996).

When an employer fails to present reasonably requested documents and fails to adequately document that a current job opening exists and that the employer has sufficient funds to pay the employee, certification is properly denied because no bona fide job opportunity has been shown. Aerial Topographic Maps , 94-INA-00627 (Aug. 15, 1996).

Where employer fails to document that there is a true, full- time job opening that is available to U.S. applicants, where the qualifications appear to be tailored to the alien's credentials, certification is properly denied. Eli's Trims, Inc. , 94-INA-404 (Jan. 25, 1996).

Section 656.20 requires that an employer document that job has been and is open to U.S. workers. Where the job requirements are structured to meet the alien's qualifications, certification is properly denied. Dr. Lalita Reddy , 94-INA-172 (July 25, 1995).

Where Employer has listed Alien as an "independent contractor," but now seeks to hire that same person for a wage/salary, Employer has not established that bona fide job opportunity exists for other U.S. applicants to apply. In addition, Employer did not rebut this finding in the CO's NOF. All findings not rebutted are deemed admitted. Belha Corp. , 88-INA-24 (May 5, 1989) (en banc). A'Lor International Ltd. , 94-INA-427 (Jan. 17, 1996).

Employer applied for certification for the position of agricultural engineer and required a BS in Agricultural Engineering. The job duties included "[p]repare and design layouts with detailed drawings of agricultural harvesting and processing equipment ." Alien had B.S. degree in Agricultural Engineering. The CO denied certification and the Board affirmed. The Board agreed with the CO's finding that Employer's requirement of a Bachelor of Science was tailored to Alien's qualifications "and did not represent the actual needs of the position it described." Citing R.H. Maleki Enterprises , 93-INA-21 (Feb. 24, 1994), the Board reasoned that "Employer's evidence does not suggest that the normal or anticipated manufacturing functions which it has described will require an agricultural engineer or an agricultural designer, given the purpose of the position Employer has described..." Merrick Engineering, Inc. , 95-INA-242 (Dec. 24, 1996).

20 C.F.R. § 656.21(b)(2)(I) requires a showing of business necessity for requirements that are not normal requirements that are not normal for jobs in the United States or that are not defined for the jobs in the DOT. See Ivy H. Cheng , 93-INA-106 (June 28, 1994). 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. Contexts in which lack of bona fide job opportunity is not properly raised

The CO erred in finding no bona fide job opportunity and canceling Alien's priority date where Employer wanted to expand its restaurant to serve Greek and Italian dishes. The CO noted that the restaurant's menu contained mostly items which were "'common to the typical U.S. restaurants'". However, the panel noted that, according to Employer, it "has operated in the community for over 10 years and has adjusted it menu to satisfy the demands of various ethnic groups." As a result, the panel concluded that a bona fide job opportunity existed and remanded the case for further processing and concluded that "the original priority date will be retained as a matter of equity." La Petite Fermiere , 91-INA-109 (May 13, 1992).

The CO erred in concluding that there was no bona fide job opening where Employer, a motor oil company, sought to expand into the sheepskin accessory market. The panel concluded that the absence of a pre-existing position is not a per se bar to labor certification; rather, Employer "must prove that it indeed has definite plans for business expansion and that the expansion will generate full-time, permanent work." As a result the case was remanded to permit Employer an opportunity to document the existence of a bona fide job opportunity. Mouren-Laurens Oil Co. , 91-INA-236 (Aug. 11, 1992).

IV. A job opportunity clearly open to qualified U.S. workers [new]

The Board held that a job is "clearly open to any qualified U.S. workers" as required by § 656.20(c)(8) if Employer has established business necessity for any unduly restrictive job requirements. Specifically, the Board held that Employer was required by contract to fill the position of railway lever man with the most senior union member such that Alien was the only "qualified" individual for the position. The Board concluded that union membership and seniority were business necessities because these requirements bore a reasonable relationship to the occupation and were essential to perform the duties of the job. In particular, the Board noted that the railway was unionized and that hiring an employee who failed to meet the seniority requirements imposed by the railway's collective bargaining agreement would expose Employer to possible grievance procedures, lawsuits, labor disruptions, or other impairments to providing safe and orderly public railway transportation. Canadian National Railway Co. , 90-INA-66 (Sept. 11, 1992) (en banc), recon. denied (Nov. 20, 1992) (en banc).

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