8 June 2015

BALCA Reverses Denial, Says “Lack of Experience” IS Lawful Reason for Rejecting Applicants

When an employer files a PERM application on behalf of a beneficiary, certain documentation must be maintained, including a document called a Recruitment Report (RR). This RR must contain, among other things, the employer’s lawful reasons for rejecting U.S. workers who applied for the position. If a case is audited after the PERM application is filed, the employer will have to submit this document to the Officer assigned to the case.

With this in mind, I would like to tell you about a case that was recently decided by the Board of Alien Labor Certification Appeals (BALCA) (This Board handles PERM denials). The case is called, Matter of Presto Absorbent Products, Inc, 2012-PER-00775 (5/26/15).

The Officer in this case issued an audit requesting that the Employer submit its RR and all supporting documentation, including the U.S. workers’ resumes sorted by the reasons for rejection. Upon review of the RR, the Officer denied the case explaining that the Employer’s RR made only a generalized statement that U.S. workers did not meet the Employer’s minimum requirements and that the RR did not contain the specific lawful job related reasons for rejection. After receiving the denial of the PERM application, the Employer requested BALCA review the Officer’s final decision.

The applicable regulation states:

Recruitment report. (1) The employer must prepare a recruitment report signed by the employer or the employer’s representative … describing the recruitment steps undertaken and the results achieved, the number of hires, and, if applicable, the number of U.S. workers rejected, categorized by the lawful job related reasons for such rejections. The Certifying Officer, after reviewing the employer’s recruitment report, may request the U.S. workers’ resumes or applications, sorted by the reasons the workers were rejected.

In its RR, the Employer stated it received eight resumes in response to its recruitment and that the eight applicants lacked the experience requirement for the job opportunity. Further, the Employer stated, “All applicants were reviewed to determine if they would be able to perform the duties of the position with a reasonable amount of on-the-job training. All applicants were determined not to have been able and qualified for the position even with a reasonable amount of on-the-job training.”

The Officer did not think this explanation was enough to comply with the regulation above regarding RRs. BALCA on the other hand did not agree and sided with the Employer. BALCA reasoned that the regulation does not indicate “a level of specificity beyond what the Employer provided.” Afterall, the Employer’s RR did indicate the number of U.S. workers who applied for the job and the Employer provided a lawful job related reason for rejection: Lack of experience. Because lack of experience is a lawful reason for rejecting U.S. applicants, BALCA reversed the Officer’s decision and the PERM application was certified.

I think BALCA got this right. The regulation is pretty clear as to what is expected in the RR. There was no ground for the Officer to request more than what is expected by the regulation. Lack of experience is a lawful job related reason for rejection; therefore, the reason for rejection was sufficient, it’s that simple.

What do you think about this case?

Copyright 2018. All rights reserved.

Posted June 8, 2015 by KrystalAlanis in category "Immigration News Updates", "Labor Certification