BALCA on Content of Supervised Recruitment Report

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of Vice President, Mergers & Acquisitions.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO informed the Employer that he would need to oversee their PERM recruitment. As part of the process, the CO sent the employer separate instructions for its advertisement and recruitment report. In the instructions for the recruitment report, he requested the Employer to “state the names, addresses and provide resumes (other than those sent to the employer by the CO) of the U.S. workers who applied for the job opportunity.

A few months later, the Employer presented the outcomes of its PERM recruitment in its recruitment report. The Employer indicated they had received 70 applications from U.S. Workers; and 7 applications from non-U.S. workers. Out of the 70 U.S. candidates, only three of the candidates were interviewed for the position. Based on the interviews, the Employer decided none of the applicants were qualified because they lacked the required critical experience and skills. In the recruitment report, the Employer identified the name of each applicant and provided the reason each candidate was disqualified. However, in the actual report, the Employer did not state the addresses of the applicants. In the report, they wrote a note to the CO that specified the following, “The resumes of the applicants who responded directly to JP Morgan Chase are attached to this report. Please note that the resumes, which are part of this recruitment report, include the name and address of each applicant.”

Upon review of the recruitment report, the CO denied certification of the labor application. The CO provided that the Employer violated PERM regulation 20 CFR 656.21 (e)(3) because the Employer neglected to “state” the U.S. worker’s addresses in the recruitment report.

The Employer requested reconsideration and/or review of the denial. The Employer argued that they did not fail to provide the U.S. worker’s addresses because they included the applicant’s resumes along with their report. The Employer contended it was not necessary to re-type the addresses because the information could be found on the resumes. Upon review, the CO reaffirmed his denial. He referred the case to BALCA.

After BALCA’s examination of the case, BALCA affirmed the CO’s decision to deny certification. The Board found the Employer’s recruitment report did not obey the supervised recruitment instructions as the addresses of the applicants were not stated in the report. BALCA believed the CO should not have had to look through resumes to find names and addresses. Additionally, some of the resumes did not contain applicant’s addresses.