H1B Visa Lawyer Blog

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 Manager/Video Technician. This LC was filed prior to the effective date of the “PERM” regulations.

The employer, a video parlor and equipment retailer filed a LC on behalf of an alien worker in April of 2001. The requirements for the position included the attainment of a high school education and two years of experience in the job offered. In January of 2007, the CO issued a Notice of Findings (NOF) proposing to deny certification because the alien did not appear to possess the requisite experience prior to his hire. The NOF gave the employer several options to rebut its findings: (1) show that the Alien had the qualifications now required at the time of hire; (2) submit evidence that the alien obtained the required experience working for the employer in jobs not similar to the position for which labor certification was sought; (3) provide documentation that it was not feasible to hire a worker with less than the qualifications required for the position; or (4) delete the requirement. In its rebuttal, the employer argued that it was not presently feasible to hire an employee with less than the qualifications presently required due to business necessity. The employer further contended that there had been a change in the workforce of the company and it was not possible to provide the same training to a new employee. Thereafter, the CO issued its final determination denying certification because the employer’s infeasibility to train argument was not persuasive. Subsequently, the employer requested BALCA review.

Upon BALCA review, an employer must demonstrate that the requirements it specifies for the job are its actual minimum requirements and that it has not hired the alien or other workers with less training or experience for jobs similar to the one offered. Accordingly, one way to avoid a denial is to show that it is not now feasible to hire workers with less training or experience than that required of the position. Where the alien gained the required experience with the employer, infeasibility must be documented – a mere statement is insufficient. In the instant case, the only documentation of infeasibility was the employer’s owner’s rebuttal statement with no collaborating documentation. Thus, the CO properly denied certification.

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 Dispatcher. This LC was filed prior to the effective date of the “PERM” regulations.

The employer, a limousine company filed a LC on behalf of the alien worker in March of 2005. The employer described the job position and requirements in the application as: coordinate schedules of limousines; report disruption to service using radiotelephone, and inspect mechanical malfunctions of vehicles along route and direct repair. Additionally, the employer required four years of experience for the position offered. In March of 2007, the CO issued a Notice of Findings (NOF) proposing to deny certification since the experience requirement exceeded the Specific Vocational Preparation (SVP) for the job as set forth in the Dictionary of Occupational Titles (DOT). The DOT listed the experience for the position as “over 1 year and up to 2 years” for Dispatchers, Except Police, Fire and Ambulance. The CO concluded that the job opportunity included an unduly restrictive job requirement in violation of the regulations. The CO provided three ways in which the employer could rebut its findings: submit evidence that the requirement arises from a business necessity; or show that the job requirement bears a reasonable relationship to the occupation in the context of the employer’s business and is essential to perform the job duties described by the employer, and that the job as currently described existed before the alien was hired; or reduce the requirements to the DOT standard. On rebuttal, the employer submitted no evidence in regards to what the CO had requested. The employer argued that the occupational title of Traffic Inspector – Dispatcher with an SVP of two to four years more closely matched the duties listed in the application. The employer based his argument on the similarities of the job duties. Thereafter, the CO issued its final determination denying certification. The CO found that the Employer’s rebuttal was a request to re-code the position to Traffic Inspector-Dispatcher, and the CO declined to approve that request. Subsequently, the Employer requested BALCA review.

Upon BALCA review, it was determined that where the employer cannot document that the job requirement is normal for the occupation or that it is included in the DOT, the employer must establish business necessity for the requirement. The basis of the employer’s argument was that the job opportunity should have been coded as Traffic Inspector-Dispatcher which has a SVP 7 or two to four years of experience. The job requires coordinating the schedules of streetcars, buses, or railway transportation systems, and includes negotiations with local governmental personnel to eliminate hazards. However, the CO concluded that the position was that of Dispatcher which more closely resembled the job duties listed within the application for labor certification. Upon review of the three job descriptions, the Board agreed with the CO that the proper job code for the occupation in the application is that of Dispatcher.

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 Accountant. This LC was filed prior to the effective date of the “PERM” regulations.

The employer filed a LC on behalf of an alien worker in July of 2004. In the spring of 2006, the employer submitted its recruitment results indicating that nineteen resumes were received: some candidates did not have the requisite degree/experience, two candidates were found to be overqualified, and several other candidates were either unwilling to take the job or did not respond to contacts by the employer. Thereafter, in August of 2007, the CO issued a Notice of Findings (NOF) proposing to deny certification on the basis of the rejection of U.S. workers for other than lawful, job-related reasons. The CO found that the Employer had placed telephone calls to U.S. applicants and some of these were unsuccessful. The CO requested documentation of attempts to contact the referred applicants in a timely manner, and suggested that such documentation could include evidence such as certified mail receipts, itemized telephone bills or other documentation of timely contact which would establish good faith recruitment. The CO stated that failure to provide lawful, job-related reasons for their rejection was a violation of Federal regulations. The employer submitted its rebuttal arguing that it did contact the U.S. applicants, and asserting that it was in the process of obtaining its telephone bills. Additionally, the employer argued that their rejection of the candidates was consistent with normal business practices of the industry and its own normal practice. The CO did not accept the Employer’s argument regarding good faith recruitment, noting that placing unanswered telephone class without making additional attempts to contact U.S. applicants did not constitute good faith recruitment. Thereafter, the CO issued its final determination denying certification for the same grounds contained in the NOF. Subsequently, the Employer requested BALCA review.

Upon BALCA review, it was determined that both of the grounds cited by the CO for denying certification were supported by BALCA caselaw. First, an employer who does no more than make unanswered phone calls or leave a message on an answering machine has not made a reasonable effort to contact the U.S. worker, where the addresses were available for applicants; in such a case the employer should follow up with a letter – which may be certified mail, return receipt requested. Second, the Employer rejected at least two applicants as overqualified. The Board has repeatedly ruled that an employer who is recruiting pursuant to a labor certification application may not reject an applicant solely because that applicant is overqualified.