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Production Tool Corp. v. Employment and Training Administration

decided: September 20, 1982.

PRODUCTION TOOL CORPORATION AND MANUEL AGUILAR, PLAINTIFFS-APPELLANTS,
v.
EMPLOYMENT AND TRAINING ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, DEFENDANT-APPELLEE; KENALL MANUFACTURING COMPANY AND BLANCA FABIAN, PLAINTIFFS-APPELLANTS, V. EMPLOYMENT AND TRAINING ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, DEFENDANT-APPELLEE



Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 78 C 2499 -- John F. Grady, Judge, No. 79-C-1033 -- Julius J. Hoffman, Judge.

Bauer, Circuit Judge, Nichols,*fn* Associate Judge, and Wood, Circuit Judge.

Author: Wood

WOOD, Circuit Judge.

Production Tool Corp. and Kenall Manufacturing Co. appeal from separate orders affirming final decisions of the United States Department of Labor denying their applications for permanent alien labor certifications as provided for by the Immigration and Nationality Act, § 212(a) (4), 8 U.S.C. § 1182(a) (14) (as amended), and the regulations promulgated thereunder, 20 C.F.R. Pt. 656 (1980). Appellants challenge the validity and application of those regulations. For the following reasons, we affirm.

I

Section 212(a) (14) of the Immigration and Nationality Act, as amended, provides that aliens "seeking to enter the United States, for the purpose of performing skilled or unskilled labor," shall be excluded from admission,

unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that (A) there are not sufficient workers who are able, willing, qualified . . ., and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed.

In 1977, the Secretary of Labor promulgated new regulations setting forth the procedures "whereby such immigrant labor certifications may be applied for, and given or denied." 20 C.F.R. Pt. 656. In applying for certification on behalf of an alien, the employer must submit various documents which show the employer's efforts to fill the job vacancy with a United States worker. Id. § 656.21(b). The provision at issue requires documentation which "clearly shows" that:

(9) (i) The employer has advertised and is still advertising the job opportunity without success in such media as newspapers of general circulation, and ethnic and professional publications;

(ii) The employer's advertising offers prevailing working conditions and requirements and the prevailing wage for the occupation calculated pursuant to § 656.40 of this Part, states the rate of pay, offers training if the job opportunity is the type for which the employer customarily provides training, and offers wages, terms and conditions of employment which are no less favorable than those offered to the alien;

(iii) The employer's advertising describes the job opportunity with particularity; the documentation shall include a copy of at least one advertisement placed by the employer;

(iv) The employer's advertising has produced no satisfactory results.

Id. § 656.21(b) (9). The regulations require the certifying officer, in judging whether a United States worker is "willing" to take the job opportunity, to examine the results of the employer's recruitment efforts and to "determine if there are other appropriate sources of workers where the employer should have recruited or might be able to recruit U.S. workers." Id. § 656.24(b) (2) (i). Failure by the employer to comply with the application procedures constitutes a separate ground for denying certification. Id. § 656.24(b) (1).

If the certifying officer determines that the applicant has not met the requirements of 20 C.F.R. § 656.21 or that there is a United States worker who is "able, willing, qualified, and available" for the job, the officer issues a Notice of Findings setting forth the specific basis for the decision. Id. § 656.25. The employer or the alien may then submit rebuttal evidence, which the certifying officer must review. A final determination to grant or deny is then made, and ...


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