BALCA upholds denial of LC because Employer failed to establish lawful-job related reasons for rejecting otherwise qualified U.S. workers

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Heavy Equipment Operator.” This LC was filed prior to the effective date of the “PERM” regulations.

In the aforementioned case, the employer, a contractor providing commercial site preparation services filed a LC on behalf of an alien worker in April of 2001. In March 2006, the CO issued a Notice of Findings (NOF) proposing to deny certification. The CO noted that the employer did not document that its requirements for the job opportunity, represented the Employer’s actual minimum requirements for the job opportunity in violation of Section 656.21(b)(5). Additionally, the CO concluded that based on the recruitment report, the Employer had screened and rejected U.S. workers for the lack of qualifications not stated in the ETA 750A form or the advertisements. There were 10 additional qualifications not mentioned in ETA 750A or the advertisements for the position which the Employer used to reject otherwise qualified U.S. workers. The Alien had been hired without these qualifications and allowed to gain the required experience now required of U.S. applicants. The CO provided three ways in which the employer could rebut its findings: (1) submit evidence showing the alien had the qualifications at the time of hire; (2) submit evidence of business necessity; or (3) delete the requirements. The CO concluded that the Employer had not established lawful job-related reasons for rejecting the otherwise qualified U.S. workers. In response, the Employer submitted a rebuttal to the NOF. Thereafter, the CO issued a final determination in April 2007, denying certification because the Employer’s rebuttal was not sufficient to correct the deficiencies noted in the NOF. Subsequently, the Employer requested BALCA review.

Upon BALCA review, 20 C.F.R. § 656.21 (b)(5) provides: The employer shall document that its requirements for the job opportunity, as described, represent the employer’s actual minimum requirements for the job opportunity, and the employer has not hired workers with less training or experience for jobs similar to that involved in the job opportunity or that is not feasible to hire workers with less training or experience than that required by the employer’s job offer. Therefore, an employer cannot require more stringent qualifications of a U.S. worker than it requires of the alien. Thus, the employer is not allowed to treat the alien more favorably than it would a U.S. worker. An employer must establish that the alien possesses the stated minimum requirements for the position that is being offered. There is no documentation on record, which establishes that the alien had the additional qualifications required for the position. An employer’s unsupported statement that the alien meets its minimum requirements does not constitute adequate documentation that the alien meets those requirements. Since the alien’s prior experience is not documented, the record does not establish that the Alien was hired with the experience now being required of U.S. applicants. Therefore, the U.S. applicants who were rejected for their lack of an experience, which was not required of the Alien were not rejected for lawful job related reasons.

Accordingly, the Employer failed to fulfill its burden to provide evidence that the Alien had the requisite experience required for the position at the time he was hired by the Employer. The regulation at 20 C.F.R. § 656.21 (b)(5) provides that when an alien does not meet the employer’s stated job requirements, certification is properly denied.