BALCA Says Drug Testing and Background Checks are “Requirements” for Recruitment Purposes

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 “Bilingual Programmer.”

After obtaining & examining an Employer’s application for Permanent Labor Certification, the CO issued an Audit notification ordering the Employer to submit a copy of the State Workforce Agency’s (SWA) job order. The Employer replied to the Audit within 30 days.

The CO denied labor certification stating “the SWA offered employment terms and conditions of employment that were less favorable than those offered to the alien.” On the SWA job order, the position “required drug testing/screening and background checks.” These requirements were not listed on the Employer’s ETA Form 9089. The Employer requested reconsideration and attached an amended copy of the ETA Form 9089 that listed the required drug testing/screening and background checks.

Once again, the CO denied the labor certification application affirming the Employer did not reverse the cause for denial. The amended form could not be regarded as evidence because it signified new evidence. The Employer needed to complete a brand new labor application.

The CO forwarded the case to BALCA for review. The Employer stated they had “every intent to add the additional requirements to the ETA but missed it on the application inadvertently.” Upon review, BALCA sided with the CO. The Board believed the addition of the drug testing/screening & background checks on the SWA form represented an additional job requirement that should have been listed on the original labor application, as it may have deterred otherwise-qualified persons from applying for the position. BALCA ordered the denial affirmed.

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