BALCA Finds No Business Necessity for 2-Year Experience Requirement for Cook

Posted On: June 29, 2011

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Cook.”

On ETA Form 9089 the Employer listed 2 years as the minimum amount of experience required for the position. Certification was denied by the CO on the grounds that the Employer did not select the name of the newspaper for the second advertisement in Section I-11. In a request for review, the Employer argued the omission was inadvertent and the “New York Daily News” should be inserted and included copies of the advertisement. An Audit Notification was then issued by the CO who stated that the minimum requirements set by the Employer exceed the SVP level assigned by O*NET. In order for the Employer to list requirements higher than those set by SVP, he must demonstrate that the additional requirements are essential for the position. The Employer submitted its response to the Audit and explained the business necessity for the additional requirements. The Employer stated that in the past when he had hired individuals with less than two years experience their skills were unsatisfactory and “they lacked knowledge to put together the necessary menus.” However, the CO denied certification due the fact that the Employer did not respond to the Audit before the specified date of 3/31/2008. The Employer wrote back arguing that a response was sent on March 12 and that a Federal Express Receipt show the audit team received it on March 14. Again the CO denied certification going back to the original reason for denial that the Employer exceeded the requirements set by the SVP level and did not adequately prove a business necessity for the additional requirements. In request for review the Employer submitted letters from other restaurant owners who require a minimum of two years experience, pages from the O*NET website and Dictionary of Occupational Titles showing a SVP of 6 for a cook position. The CO found the Employer’s response did not overcome the deficiencies and the documentation the Employer submitted was new evidence. The case was then forwarded to BALCA and a Notice of Docketing was issued.

PERM regulation 20 C.F.R. § 656.17(h)(1) controls and it provides that unless adequately established for business necessity, the job requirements must not exceed those set by the SVP level assigned by O*NET.

In the instant case, the Employer’s requirements for the position exceed those set by the SVP assigned by O*NET for the position of “Cook.” The letter from the Employer did not sufficiently prove business necessity for the additional experience requirement of two years. The Employer did prove business necessity but did so with evidence not within the record during the original denial; therefore it could not be considered.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.