BALCA on Employer’s Duty to Interview and Investigate Applicants

BALCA in Matter of Select International Inc. 2011-PERM-01478, held that where a resume showed a broad range of experience, training, and education, the employer had a duty to investigate the applicant given its willingness to accept a “combination of education, training, or experience.”

On February 22, 2007, Select International (“Select”) filed for Permanent Employment Certification (“PERM”) for the position of Industrial /. Organizational Psychologist. On June 22, 2007, the Certifying Officer (“CO”) issued an Audit Notification. Select responded on July 25, 2007. On September 30, 2008, the CO requested a signed affidavit and documentation explaining why it is not feasible to train a worker to qualify for the job opportunity. Select filed its recruitment report and other supporting documentation on February 23, 2009. On February 4, 2010, the CO denied the application because Select rejected three U.S. Citizen applicants for non-lawful job-related reasons. Specifically, the CO stated that three potentially qualified applicants were rejected despite Select’s statement in its ETA Form 9089 that it “will accept any suitable combination of education, training, or experience.” Select filed a request for reconsideration.

PERM regulations require an employer to conduct mandatory recruitment steps in good faith to recruit U.S. workers prior to filing an application for permanent alien labor certification. 20 C.F.R. § 656.17(e). To conduct recruitment in good faith, an employer “must take steps to ensure that it has lawful job-related reasons for rejecting U.S. applicants, and not stop short of fully investigating an applicant’s qualifications.” E. Tenn. State Univ., 2010-PER-00038. “Rejection of one or more U.S. workers for lacking skills necessary to perform the duties involved in the occupation, where the U.S. workers are capable of acquiring the skills during a reasonable period of on-the-job training, is not a lawful job-related reason for rejecting the U.S. workers.” Id.

The Employer’s Recruitment Report indicated that eight U.S. workers responded to its recruitment efforts. Regarding applicant Avi Avigdor, Select found that he did not have the required experience, so he was not offered an interview. The CO cited Mr. Avigdor’s 47 months of experience in its denial, and Select argued that they were not related to the position. Mr. Avigdor had a master’s degree in I/O Psychology, was in the process of obtaining his Doctorate in I/O Psychology, had 16 months experience in Organizational Development, 8 of which was in a similar position to Select’s, and also has experience using SPSS. BALCA stated that if an applicant’s resume demonstrates a broad range of experience, education, and training, such that it is reasonably possible that he or she is qualified for the job, the employer has an obligation to further investigate the applicant’s credentials beyond the face of the resume. BALCA in this case found that Select had the duty to investigate his qualifications further, and thus affirmed the denial of the labor certification.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately.