BALCA upholds denial of Labor application – minimalist approach to recruitment

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of heavy equipment operator. This LC was filed prior to the effective date of the “PERM” regulations.

The employer, a residential home construction company filed a LC on behalf of an alien worker in April of 2001. In January 2006, the CO issued a Notice of Findings (NOF) proposing to deny certification on the ground that two U.S. applicants were unlawfully rejected in direct violation of the regulations. In the submitted recruitment report there were several findings at issue. First, the employer left a phone message for one applicant that was never returned, and an email was sent to a second applicant, and thus returned because it was inoperable. The employer did not follow up with alternative attempts, such as written correspondence. In summary, the CO stated that an employer who does no more than place unanswered telephone calls without making additional attempts has failed to make a minimally acceptable effort. In response, the employer stated that if an applicant does not return a telephone call for a high paying position, then it can be reasonably inferred the applicant is no longer interested in the position. Additionally, the employer contended that he is not required by the regulations to send certified mail notices or other written communication to an applicant that it has tried in good faith to contact for an interview. Thereafter, the CO issued its final determination denying certification for the same grounds contained in the NOF. Subsequently, the Employer requested BALCA review.

Upon BALCA review, it was determined that an employer must show that U.S. applicants were rejected solely for lawful job related reasons. An employer must take steps to ensure that it has obtained lawful job-related reasons for rejecting U.S. applicants, and not stop short of fully investigating an applicant’s qualifications. According to the Board’s case law, an employer who does no more than make unanswered phone calls or leaves messages on answering machines has not made a reasonable effort to contact the U.S. worker, where the addresses were available for applicants; in such a case the employer should follow up with a latter – which may be certified mail, return receipt requested. The Board further pointed out that what may be considered adequate recruitment by an employer for hiring is not necessarily adequate to establish good faith efforts to recruit U.S. workers for the purposes of supporting a labor certification application.

Accordingly, the employer took a minimalist approach to recruitment. In doing so, it failed to document that it made good faith efforts to recruit all of the U.S. applicants. Thus, the CO properly denied certification.