BALCA Holds Employer Efforts to Contact U.S. Applicants Lacked Good Faith

An important goal of the Immigration and Nationality Act (INA) is to protect U.S. workers from being displaced on the job market by foreign workers. Certain employment-based permanent residence applications therefore require the employer to obtain a Labor Certification from the Department of Labor.

In order to obtain a Labor Certification, the employer must prove that there are not sufficient U.S. workers who are able, willing, qualified and available to perform the work. Accordingly, the employer is required to conduct mandatory recruitment steps in a good faith effort to recruit U.S. workers, prior to filing the application for a Labor Certification. The employer must also certify that the job opportunity has been and is clearly open to any U.S. workers, and that any workers who applied for the position were rejected for lawful job-related reasons.

In Matter of W. Alex Choi, CPA, 2011-PER-02916 (September 26, 2013), the Board of Alien Labor Certification Appeals (BALCA) upheld the denial of a Labor Certification application based on a lack of good faith to contact U.S. applicants for the job opportunity. The employer in Matter of Choi had claimed that many of the applicants failed to appear for an interview. Id. However, BALCA noted that the tracking information for interview invitations, sent via certified mail, revealed that the letters did not reach the applicants until after the interview was supposed to have occurred. Id. Further, the employer failed to make additional attempts to contact the applicants via the email addresses or phone numbers provided in their résumés and cover letters. Id.

The above decision is a result of broad regulations that are very strictly interpreted by the Department of Labor, coupled with a lack of knowledge of the process by the employer. It is therefore very important to counsel with an experienced immigration attorney before taking any of the steps required to obtain a Labor Certification.