BALCA Says Employer Efforts to Contact U.S. Applicants Lacked Good Faith

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 “Accountant. Level I.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. The Employer responded by sending certain information that the CO requested. In response, the CO informed the Employer that they would need to conduct supervised recruitment. As part of the process, the Employer had to submit a copy of the proposed job advertisement. A week later, the CO approved the advertisement and mailed further recruitment instructions. Over a month later, the Employer sent copies of the Georgia State Workforce Agency’s job order and an in-house job posting, along with copies of its advertisements.

A few months later, the CO told the Employer the recruitment time had concluded. In 30 days, the Employer needed to submit a comprehensive written report about the recruitment process and the results. In a timely manner, the Employer compiled with the request. In the report, the Employer noted it had rejected all US applicants, a few of which because the Employer was unable to communicate with them concerning the advertised position.

Upon review of the recruitment report, the CO denied certification. The CO stated “the Employer failed to use good-faith efforts to reach these applicants.”

The Employer requested reconsideration arguing that it used both e-mail and certified mail in an effort to contact applicants. The CO sent the case to BALCA. In its review request, the CO emphasized that there were four US job applicants that the Employer failed to contact by alternative means when the certified mail invitations to interview were returned.

After BALCA’s examination of the case, the panel sided with the CO. The Board found “the Employer failed to use good-faith efforts to reach these applicants.” In addition, BALCA thought the Employer did not provide any evidence to show that they tried to contact these applicants through another method, as each applicant’s telephone number was listed on their resume. BALCA affirmed the CO’s decision to deny certification.