BALCA Upholds Denial for Failure to Investigate Applicant’s Qualifications

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 “Industrial/Organizational Psychologist.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. The Employer presented its response and the CO issued a Notification of Supervised Recruitment. A few weeks later, the Employer sent a copy of the proposed job advertisement as well as a copy of the foreign worker’s Master’s degree and school transcripts. In response, the CO requested a signed sworn statement and documentation that explains why training is not realistic to meet the requirements for the particular position. The Employer responded with the required documents. The CO sent the Employer the resumes it had received from advertising. Two months later, the Employer submitted its recruitment report and accompanying records.

Upon review of the recruitment report, the CO denied certification of the labor application. He stated the Employer turned down qualified U.S. job applicants for “non-lawful job-related reasons.” The CO believed there were at least three fitting candidates for the job opening that were refused because the Employer believed they did not meet the minimum requirements. In his denial, the CO cited the Employer’s statement on the ETA Form 9089, “will accept any suitable combination of education, training and experience.”

The Employer requested reconsideration of the denial arguing none of the three job applicants were even slightly qualified for the available position. They also submitted a statement from their Vice President explaining why the applicants were not suitable. The CO sent the case to BALCA. He believed one of the applicants, a U.S. Worker, was able and qualified for the position. The CO thought the Employer should have investigated his qualifications to demonstrate honest recruitment practices.

After BALCA’s examination of the case, BALCA sided with the CO. BALCA thought the applicant had a broad range of experience, training and education. Since the Employer listed their “willingness to accept any suitable combination of education, training or experience,” the Board found the Employer inappropriately excluded the job applicant without further investigation.

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