July 1, 2011
This is another interesting decision handed down recently by the Board of Alien Labor Certification Appeals (BALCA). In May the Department of Labor’s appeals arm handled a case which spoke to the importance of clearly providing evidence for why local recruitment efforts came up short. For our friends in and around Columbus it is yet another instance of why expert counsel is so critical in the employment certification process.
In September of 2007 a company filed an Application for Alien Employment Certification for a position titled “Software Engineer.” According to the Employer, the position required a Master’s degree in Computer Science and either two years experience in the specific job offered or a “suitable combination of education, training, or experience.”
Later that year a Certifying Officer (CO) issued an audit that requested all recruitment documentation, including a report required by the Code of Federal Regulations (C.F.R.). The response from the Employer stated that two candidates were evaluated for the position. But based on the resumes submitted, their experience with respect to key web-related software “indicated a serious gap in the skill sets required to meet the goals and objectives of the company.”
In September of 2009 the Employer’s request was denied by the CO on five separate grounds. The CO felt the recruitment report made only a “generalized statement” about the U.S. workers not meeting the position’s minimum requirements. A failure to include an “unaltered” copy of the notice of filing, wage determination and web advertisement was listed, as were three cases where the Employer’s paperwork was inconsistent or lacking a requisite piece of information.
In October the Employer requested reconsideration. With that request the Employer attached an amended report explaining its rejections of the two U.S. candidates, as well as information clearing up the issues with its paperwork.
And while in June of 2010 the CO found the information regarding wage determination and job order to be acceptable, they still did not find the recruitment report met C.F.R. standards. The CO stated it did not even consider the amended recruitment report.
BALCO received the case in July of 2010. The Employer filed a brief stating that not only did its initial recruitment report meet all requirements, but its amended report served to further clarify that fact. Additionally, since the two applicants were not U.S. citizens it did not “unlawfully reject U.S. workers.” A brief from the CO stated the denial should be upheld because the recruitment report was not sufficient in terms of outlining the “lawful-job related reasons for each rejection of U.S. workers.”
The BALCA decision began by clarifying the CO was correct in not reviewing the so-called “clarifying document,” as the Employer was at fault for not making its reasons for denying the applicants more clear in the initial application. Requests for reconsideration in these situations can only include information that the CO received initially or that the employer was not able to present, but existed at the time the application was filed.
Ultimately the judge sided with the CO and denied certification. The decision cited the section of the C.F.R. that deals with recruitment and reporting the process. These reports are required, the decision said, “so that the CO can determine whether U.S. workers were rejected for lawful job related reasons.” The employer grouped the reasons for rejecting the two applicants together and was not specific enough for the CO to determine which criteria were found to be lacking in which candidate. For that reason the report was not in compliance with federal code.
As to the issue of neither candidate being a U.S. citizens, the decision referred to the issue as being a “circular argument.” Since the initial report did not make clear which candidates were or weren’t U.S. citizens, the CO was unable to make a clear determination.