H1B Visa Lawyer Blog
The Board of Alien Labor Certification Appeals (BALCA) affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Design Engineer-Mechanical.”
After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. The Employer responded by sending its recruitment report as well as resumes from U.S. applicants. In response, the CO informed the Employer that they would be required to conduct supervised recruitment. As part of the process, the Employer could only advertise the position in permitted publications and abide by specific advertising conditions. The Employer sent the CO a copy of the proposed job advertisement that was approved by the CO. A few weeks later, the Employer sent copies of the Arkansas State Workforce Agency job order; newspaper ads, on-line job postings from its company web page and a job search website. The CO told the Employer about the resumes that he had received as well.
A few months later, the CO told the Employer that the recruitment time had concluded. In 30 days, the employer was required to submit a comprehensive written report about the recruitment process and the outcomes. In a timely manner, the Employer presented its recruitment results. In the report, the Employer noted it had received resumes from 45 applicants. During the review of the resumes, the Employer cited it considered job applicants based on their education, training, experience as well as trainability. The Employer believed that none of the applicants fulfilled the minimum job requirements and therefore, were not qualified for the position.
Upon review of the recruitment report, the CO denied certification of the labor application. He stated the Employer excluded qualified U.S. job applicants for other than lawful, job-related reasons. The CO believed there were at least ten possibly qualified candidates for the job opening.
The Employer requested review of the denial, so the CO sent the case to BALCA. In its review request, the Employer emphasized the ten candidates, named in the CO’s denial, were not qualified for the position because they either did not meet the minimum education requirements; did not have experience with the Unigraphics system; or did not possess a background in or knowledge of heat transfer and fluid dynamics. The Employer claimed that training for these individuals would be time consuming and very costly. The Employer believed it was within their right to discard candidates that lacked the job requirements.
After BALCA’s examination of the case, BALCA affirmed the CO’s decision to deny certification. The Board found the Employer inappropriately excluded job applicants without interviewing them or researching their background. In addition, BALCA thought the Employer did not take into consideration that “these applicants could became qualified after a reasonable period of on-the-job training or taking on-line tutorials or training courses.”