BALCA Weighs In On Documenting College-Based Recruitment

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Senior Design Verification Engineer.”

After reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. Upon receiving the employer’s audit response, the CO denied the application for multiple reasons. He declared that the Employer’s print advertisements did not “provide a description of the vacancy specific enough to apprise the US Workers of the job opportunity.” The remaining reasons for denial concerned the Employer’s use of on-campus recruitment.

The Employer presented a Request for Reconsideration claiming its evidence adhered to ETA guidance and regulations. The CO accepted the Employers’ claims for part of the denial but believed his other reasons for denial were valid. The CO wanted evidence that the job fair actually took place, which is not required under the regulations. In addition, the CO believed that the email received by the on-campus placement office did not contain enough specific information concerning the job.

After BALCA’s examination of the case, the application was remanded to the CO for certification. They agreed with the Employer that the documentation presented included all of the essential details regarding the opening to inform an interested US applicant.

The Employer requested a review of the CO’s denial stating that the company conducted four additional recruitment steps rather than just the three that are required. In the recruitment process, they posted the position to a job search website, a newspaper ad, an employee referral ad as well as the listing on their company website. The Employer argued the location of the employment could be found on their website and they had only one geographic location. As proof of evidence, the Employer presented documentation to show that its location was completely revealed on its “Contact Us” page.

The CO forwarded the appeal to the BALCA Board for review of the case. Upon review of the case, the administrative judge ordered that “the denial of labor certification in this matter is reversed & remanded for certification.” BALCA cited the following reason for its decision. “Even though the Employer’s advertisement on its own website did not comply with the regulations, the Employer conducted three additional recruitment steps that are in compliance.” The CO did not have any issues with the other recruitment steps, so the CO improperly blocked certification.

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