BALCA remands LC for supervised recruitment due to failure of Employer to recruit in good faith

The Board of Alien Labor Certification Appeals (BALCA) recently vacated the final determination
of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Secondary Mathematics Teacher,” and remanded the case for regular processing and supervised recruitment. This LC was filed prior to the effective date of the “PERM” regulations.

In the aforementioned case, the employer, a state charter school filed a LC on behalf of an alien worker in April of 2004. In a letter submitted with the application for LC, the Employer requested that the application be handled under the provisions for Reduction in Recruitment (RIR). In August 2007, the CO issued a Notice of Findings (NOF) proposing to deny certification. The CO concluded that the Employer did not make a bona fide, good faith effort to recruit U.S. workers for the job offered because the Employer made no attempt to contact any of the job applicants but, rather, rejected all applicants without adequately investigating their qualifications. The CO stated that the Employer could rebut its findings if (1) it submitted documentation that showed that U.S. workers were rejected for lawful, job related reasons; and (2) a recruitment report detailing the number of workers who responded to the recruitment, the manner of contact, the number of workers who were interviewed, and information regarding those interviews. Additionally, the CO noted that at the time of filing the application, the Employer was “delinquent” according to the Wisconsin Secretary of State’s public website, and that good standing was not restored until January 2005. The CO equated the delinquency to mean that the Employer had not yet legally restored his qualification to legally conduct business in the State of Wisconsin. On rebuttal, the Employer submitted documentation which established the requirement to hire teachers with valid licenses or permits. In addition, the Employer submitted an affidavit from the Director of the school further indicating that the applicants in question were not qualified for the position. The Employer also provided copies of letters and emails that were sent to the otherwise qualified U.S. workers in August 2007 to determine if they were still interested in the job opportunity. Also, the Employer submitted documentation indicating that “delinquent” status is not an assessment of the entity’s financial condition, stability, or business practice, but an indication of the entity’s status in regards to filing annual reports. In September 2007, the CO issued a Final Determination denying certification. The grounds for denial were: (1) neither applicant for the position had been contact by the Employer back when the recruitment took place in 2004; (2) the affidavit was not credible because it testified to information about which he did not have first hand knowledge; (3) the Employer’s attempt to contact the applicants three years after recruitment was not sufficient; and (4) the information from the Wisconsin Department of Financial Institutions was insufficient to establish that the Employer had the legal authority to transact business in the State of Wisconsin. In summary, the Employer had not address the deficiencies in the NOF, and therefore the CO denied the application for LC. Subsequently, the Employer requested BALCA review.

Upon BALCA review, the Board determined that what is missing from the record is an explanation from the CO as to why a company’s temporary delinquent status in filing annual state reports is fatal to a LC application. Therefore, the Board stated that it declined to fault the Employer for failing to rebut an unwarranted assumption raised in the NOF. Additionally, upon review it was determined that when a resume does not expressly state qualifications for all of an employer’s job requirements, but lists such a broad range of experience that there is a reasonable possibility the applicant may meet the job requirements, it is incumbent on the Employer to further investigate the U.S. applicant’s qualifications, either through an interview or by other means. As to the affidavit, the Board stated that bare assertions by an employer are not sufficient to carry the burden of demonstrating good faith recruitment.

This case was before the CO in the posture of a request for RIR processing, and when a CO normally denies an RIR, such a denial should result in the referral of the application for regular processing and supervised recruitment. Accordingly, the Board remanded the LC to the CO for regular processing and supervised recruitment.