BALCA on Infeasibility-to-Train: Matter of Kentrox

"Employer presented a statement from its Vice President of Engineering, Mark Tinker, in response to the audit notification that addressed both the business necessity of its educational and experience requirements, and the infeasibility to train a new worker for the instant position. ... It is clear from reviewing Mr. Tinker’s statement that he is intimately knowledgeable about the Employer’s products and business needs. His statement makes a credible presentation on the Employer’s need to keep the Alien on during product maturation and frequent product updates and releases because it would take two years to train someone to the Alien’s level of competency and specific product knowledge, during which time software development would stall. Mr. Tinker also credibly presented the argument that the six to nine month release cycle created too fast a pace to permit training or even to allow an experienced Software Engineer to attain the necessary specific product structure knowledge. Although the Appeal File contains no documentation directly supporting Mr. Tinker’s statement, his statement was thorough and specific, and was obviously written by a person with firsthand knowledge about whether training for the position that is the subject of the labor certification was feasible given the Employer’s business situation. See Gencorp, 1987-INA-659 (Jan. 13, 1988) (en banc), USDOL/OALJ Reporter at 2-3 (“[W]here an employer is required to prove the existence of an employment practice or the performance of an act and its results, written assertions which are reasonably specific and indicate their sources or bases shall be considered documentation. This is not to say that a certifying officer must accept such assertions as credible or true; but he/she must consider them in making the relevant determination and give them the weight that they rationally deserve.”). Under the facts of this specific case, we find that the Employer’s documentation of infeasibility to train warrants application of Section § 656.17(i)(2)(i). ... IT IS ORDERED that labor certification is GRANTED." - Matter of Kentrox, May 22, 2014.  [Hats off to Robert H. Cohen!]