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BALCA Decision Serves as Cautionary Tale on Recruitment Requirement

Authors: John T. Combs (Denver), Steven Williams (Denver), Ceridwen J. Koski (Denver)

Published Date: January 31, 2017

On December 29, 2016, the Board of Alien Labor Certification Appeals (BALCA) issued its decision in the Matter of Unisoft International, Inc., d/b/a SMA (“the Employer”), sending a signal to employers concerning their burden of responsibility during a recruitment process and the good-faith efforts that would be expected in order for them to demonstrate compliance with those requirements. In its decision affirming denial of certification, BALCA clearly placed “the burden of follow-up” on the employer, rather than the applicant in situations where “subsidiary requirements” for a job are not present in a resume, and further stated that the employer should have conducted a closer analysis as to whether on-the-job training options could have allowed U.S. applicants to meet the required qualifications for certain skills.

Factual Background

On December 11, 2012, the Employer filed an application for Permanent Employment Certification (PERM) for a Network and Computer Systems Administrator, under the Standard Occupational Classification Code 15-1142. The application was selected for audit and the U.S. Department of Labor’s certifying officer (CO) issued a Notification of Supervised Recruitment on March 24, 2014. The CO denied the application on July 30, 2014, providing four reasons for denial. The two most relevant reasons discussed were that: (1) the Employer had rejected 20 potentially qualified U.S. applicants for other than lawful, job-related reasons; and (2) the Employer had failed to conduct good-faith recruitment.

The Employer filed a timely request for review and the Board agreed to a de novo review of the record upon which the CO had denied certification.

The Board’s Analysis

The Employer received 21 applications as a result of the supervised recruitment, and responded by sending a form letter to each applicant. The letter informed each of the applicants that he or she did not qualify due to lack of a very narrowly defined skill. Significantly, through the letter, the Employer placed responsibility on applicants to contact the Employer for additional review of qualifications if they actually possessed the requisite skills.

In its decision, BALCA differentiated between "major" requirements, such as a college degree, and detailed “subsidiary requirements.” If a major requirement is not mentioned, BALCA finds it is reasonable to assume that the applicant does not meet the requirement. On the other hand, an applicant may not explicitly indicate all details in the application, and BALCA agreed with the CO that an employer carries the burden to conduct a complete inquiry before making a determination that the applicant does not meet the minimum “subsidiary requirements.” BALCA found that the requirement of four years’ experience with the “Unisys MCP Operating System- and SPO for 052200”—a skill contained in the job description but not elsewhere on the ETA 9089—was a subsidiary requirement, which compelled the employer to conduct further examination of applicant qualifications even if the skill was absent from applicants’ resumes.

BALCA further found that the Employer’s protocol placed the burden on the applicant to show that she did have the minimum qualifications for the job opportunity and did not take into account whether the applicant could acquire the required skills during a reasonable period of on-the-job training. BALCA stated that when an employer places “the burden of follow-up” on an applicant, an employer fails to meet its burden of proving that there are no U.S. workers who are qualified, available, and willing to take the job. Further, PERM regulations provide that a U.S. worker is qualified for the job opportunity if the worker can acquire the skills necessary to perform the job during a reasonable period of on-the-job training.

Conclusion    

This is a significant precedent for employers because the decision emphasizes that an employer should not place the burden of response on an applicant. Once the applicant submits the application or resume, the burden to confirm whether the applicant is qualified, willing, and available is on the employer. A complete vetting of the applicant is required, which includes attempts to contact him or her by any means listed on the resume (e.g., via telephone, email, etc.). Additionally, the decision cautions employers not to rely on “subsidiary” skills to disqualify an applicant if the skill does not appear in the resume. Finally, employers must determine if U.S. applicants can acquire the skills necessary to perform the job through a reasonable time of on-the-job training before being able to determine whether there may be a lawful job-related reason to disqualify them.

John T. Combs  (Denver)

John T. Combs

John Combs represents employers in matters relating to their international workforce. His practice focuses on employment based U.S. inbound immigration solutions including temporary worker petitions and permanent residency (“green card”), applications, and related tax and export control issues.

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Steven Williams  (Denver)

Steven Williams
Steven’s broad-ranging experience with immigration practice stems from his work within institutions of higher education and the federal government prior to joining Ogletree Deakins. His practice focuses on business immigration matters, representing companies and individuals in the academic, medical and high-tech fields. Mr. Williams manages green card processes for higher education institutions, large and small companies, and individuals for a variety of categories, including individuals...

Ceridwen J. Koski  (Denver)

Ceridwen J. Koski

Admitted to the state bars of Colorado, Arizona and New York, Ceri has experience working with clients that range from Fortune 500 companies, individual investors, start-up companies, U.S. branches of global corporations, and entertainers.

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