Actual Minimum Job Requirements in Labor Certifications: Application of Title 20, Section 656.21(b)(6) of the Code of Federal Regulations to Experience Or Training Gained with the Employer

This Article examines the affect of Title 20, Section 656.21(b)(6) of the Code of Federal Regulations on employers who seek to obtain labor certification for an alien who has previously worked abroad for employer. The author provides a detailed examination of the requirements under section 656.21(b)(6), as well as other regulatory provisions that have allowed the labor certification of aliens who have previously been employed by the employer. The author argues that, while Department of Labor regulations preclude application requirements other than the actual minimum requirements of the employer, certain departmental interpretations indicate that it is possible to require experience which the alien has gained working for the employer in a different occupation. The author examines these decisions and concludes that under section 656.21(b)(6) experience which the alien gained with the employer is not a minimum job requirement if the alien was originally hired for the same position without that experience, and that an alien's experience gained with the same employer is irrelevant to whether it is a minimum job requirement.