## Facts

- Delitizer Corporation of Newton operated a restaurant in Massachusetts and employed Jean Delince Pricien, an alien, as a cook.
- In the cook position, Pricien was paid $7 per hour and prepared Jewish-style food under the direction of the chef/owner.
- Delitizer filed an application for permanent alien labor certification for Pricien for a higher position described as “chef” (also described in the record as “Jewish Specialty Head Chef”), with a wage of $8 per hour.
- The application’s listed minimum requirement was one year of experience as a Jewish Specialty Cook, and it described duties involving planning, cooking, supervising preparation of Jewish-style dishes, and supervision of other employees.
- Delitizer represented that the chef position carried added supervisory and managerial responsibilities beyond cooking, including overseeing multiple cooks, reconciling cash registers, making bank deposits, overseeing a computerized order system, closing the restaurant, and handling catering orders and customer complaints.
- The Department of Labor’s Certifying Officer denied certification, questioning whether the job opportunity was genuinely different from the job Pricien already held and whether the application effectively relied on experience Pricien gained while working for Delitizer.
- Delitizer sought administrative review before the Board of Alien Labor Certification Appeals (BALCA), disputing the denial and arguing that the cook job and the proffered chef job were not the same.

## Issues

1. Whether the record permitted a determination that the alien’s existing cook position was “substantially comparable” to the proffered chef position, such that the employer could not rely on experience the alien gained while working for the employer to meet the job requirements.
2. Whether additional fact-finding was required to decide if the application concerned a bona fide, open job opportunity for U.S. workers or instead amounted to certifying the alien for substantially the same job he already performed.

## Decision

- BALCA did not finally grant or deny certification; it remanded the case to the Certifying Officer for further proceedings.
- BALCA directed that the agency develop the record and make findings on whether the cook position and the proffered chef position were materially different or instead substantially comparable in duties and responsibilities.
- BALCA indicated that the outcome of the “experience gained with the employer” question turned on the job-comparability analysis, requiring a clear comparison of what the alien actually did as a cook versus what the proffered chef position required.

## Legal Principles

- The employer bears the burden to show eligibility for labor certification under the labor certification regulations and to provide sufficient documentation to resolve questions raised by the Certifying Officer.
- Labor certification must be based on a bona fide job opportunity that is open to U.S. workers; the process cannot be used to obtain certification for an alien in essentially the same job the alien already holds without a meaningful market test for that real job.
- Where the alien gained qualifying experience while employed by the sponsoring employer, the agency must examine whether the experience was gained in a position that is substantially comparable to the job offered for certification; if the positions are substantially comparable, the employer generally may not use that on-the-job experience to satisfy the stated requirements.
- Job titles and small wage differences are not controlling; the comparison focuses on actual duties, level of responsibility, and supervisory/managerial functions to determine whether the positions are materially different or substantially comparable.
- When the existing record does not allow a reliable comparability determination, remand is appropriate so the Certifying Officer can obtain and evaluate additional evidence and make the necessary findings.

## Conclusion

BALCA remanded because the decisive question—whether Pricien’s cook position was substantially comparable to the proffered chef position—required a clearer factual record about the duties and responsibilities of each job; that comparability finding would control whether the employer could rely on experience Pricien gained while working for Delitizer and whether the application reflected a genuine, open job opportunity for U.S. workers.


In re Delitizer Corp. of Newton, 1991 BALCA LEXIS 173 (1991)