Recent BALCA Opinions on Labor Certification Cases
Posted Apr 25, 2008
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The elements of a successful labor certification case have remained constant under case law over the years, as evidenced by some recent Board of Alien Labor Certification Appeals (BALCA) decisions. MurthyDotCom and MurthyBulletin readers will recall from our April 11, 2008 article, Simple Errors May Lead to Denials of PERM Cases, that BALCA's treatment of a typographical error remains consistent with its earlier decision in the Matter of HealthAmerica case. Likewise, issues such as the requirement to have a full-time, permanent position and the employer's obligations to conduct good-faith recruitment efforts have been further explained in recent BALCA decisions that are included here for the benefit of our readers.
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Full-Time, Permanent Position Requirement
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In Matter of Odonata Corp., BALCA upheld the Certifying Officer's (CO) denial of a pre-PERM case because the employer failed to establish that the position for a landscaper gardener was full time. The employee did not work during certain portions of the year, thereby confirming that the position was not for a permanent, full-time position.
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BALCA opined that the employer bears the burden of proving a position is both permanent and full time. The employer's claim that the position is for full-time employment will be accepted, unless there is evidence to the contrary. Here, the employer failed to meet that burden by specifically producing payroll information showing that the employee did not work full time. This opinion is consistent with an earlier decision (In re Vito Volpe Landscaping) that involved another landscaping position in which the employee only worked ten months each year.
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Good-Faith Recruitment Effort Requirement
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The employer is required to demonstrate having made a good-faith effort to fill the position with a qualified U.S. worker. An employer may not disqualify an applicant who meets the stated minimum requirements for the position, but does not meet an undisclosed requirement for the position. A PERM or any labor certification (LC) application will be denied if the employer rejects a U.S. worker who meets the stated minimum requirements for the job. In a 1990 case, BALCA rejected the contention of an employer that maintained it was necessary to reject an applicant who had a 'bad attitude.' Consistent with prior opinions, in Matter of Bistany's Oriental Rug Dealers, Inc., BALCA upheld the denial of a pre-PERM case for a rug repairer position that required no experience. The employer allegedly offered the position to an applicant, waited six weeks before contacting the applicant, and then asked additional questions in the recruitment process.
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In Matter of El Jalisco Mexican Restaurant, BALCA upheld the denial of a pre-PERM case in which telephone records showed that the employer’s attempt to contact applicants involved phone calls lasting less than a minute. BALCA found that this demonstrated a lack of good-faith. The length of these calls allowed the CO to draw a logical inference that the employer did not leave messages for the applicants. Furthermore, the employer did not attempt to contact the applicants by any other means.
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This decision illustrates the case-by-case approach that the CO is permitted to take in evaluating the employer's good-faith efforts to contact qualified applicants. The CO will evaluate each LC case for a final decision by determining whether the employer demonstrated good faith or undue delay when attempting to contact qualified applicants.
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Conclusion
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A PERM case requires thorough preparation and careful evaluation. A successful PERM case must meet all the exacting filing requirements under the DOL regulations, including the employer's good-faith recruitment. The case is best prepared and discussed with a qualified and experienced immigration attorney who can understand and explain the nature and the nuances of the entire LC process.