Simple Filing Missteps Can Lead to Losing Foreign Talent

Roy Maurer By Roy Maurer November 18, 2016
Simple Filing Missteps Can Lead to Losing Foreign Talent

A missing resume. A duplicate application. Unaccounted-for recruitment efforts.

These unforced errors and other similar paperwork omissions when filing for permanent labor certification of a foreign worker will likely lead to a denial from the Department of Labor (DOL) and an affirmation of that denial from the Board of Alien Labor Certification Appeals (BALCA).   

Three recent BALCA decisions confirm this point.

On Oct. 31, the board upheld the DOL certifying officer's rejection of Dell Marketing's permanent labor certification application because the company failed to provide all of the resumes submitted by U.S. workers during recruitment. Employers must prepare and submit a signed recruitment report when filing an application for permanent labor certification. The report must describe recruitment efforts and results, including the number of U.S. workers either hired or rejected, categorized by job-related reasons for each rejection. Employers are required to retain copies of U.S. applicants' resumes or applications and be able to produce them in the event of an audit.

[SHRM members-only HR Q&A: Labor Certification]
Dell filed to sponsor a foreign worker for a green card in a computer software engineer position. The DOL issued an audit notification asking Dell to provide, among other things, the resumes for all U.S. workers who applied for the job and subsequently denied Dell's application when it failed to submit one of the applicant's resumes.

The board agreed with the decision, stating that examining U.S. applicants' resumes goes to the very purpose of the permanent labor certification process, the first step for most employers sponsoring foreign workers under an employment-based permanent residence visa.

"Failing to submit even one [resume] prevents the certifying officer from determining if there are not sufficient United States workers who are able, willing, qualified and available at the time of application for a visa and admission into the United States. Therefore, this one document is vital, and not including it is a substantial failure."

Not So Fast

On Sept. 16, the BALCA upheld the rejection of labor certification for a mutual fund specialist position sponsored by Allianz Global Investors of America because the company filed a new application while its original application for the same person and occupation was pending review on appeal.
The DOL initially denied the application for permanent employment for Lagan Srivastava on March 11, 2008. The denial was submitted for BALCA review on Dec. 12, 2010. The DOL then denied certification of a Feb. 25, 2011, application because it involved the same worker and job opportunity as Allianz's March 11, 2008, application.

According to regulations, employers cannot submit a new application in the same occupation for the same person while a request for review is pending with BALCA.

Allianz admitted that both filings were for the same person, but contended that the positions were different, one being for a senior paralegal, while the other was for a senior legal and compliance mutual fund specialist. Employers are not prohibited from filing applications for the same foreign worker involving different, legitimate job openings.
But the certifying officer determined that both jobs listed "substantially comparable" job duties. BALCA noted in its decision that while Allianz detailed the alleged differences between the two positions in a reconsideration memo, the company failed to submit any substantiating documentation that would have further demonstrated the variation.
"An employer bears the burden of proof to establish its eligibility for labor certification," the board said. "We find the employer's mere assertion insufficient to demonstrate that the job opportunities identified in both applications are not the same occupation."

Employers Must Document Recruitment Efforts

In a decision from 2015, the BALCA affirmed a denial for permanent labor certification for an information systems manager at an electronics store in San Juan, Puerto Rico, saying the employer failed to provide a signed report detailing its recruitment efforts. 
The employer, Hunter Del Caribe, supplied the main components which make up the report, specifically a resume, application and interview write-up for the one native applicant for the position, along with its reasons for rejecting the job seeker, but the company neglected to provide a signed report describing those results.
The board stated that an employer must submit a signed recruitment report even if its recruitment efforts could be figured out by reviewing other provided evidence.
The board also held that an employer's accidental failure to include a complete recruitment report can't be fixed by submitting the document in a reconsideration motion. Additional documentation submitted with an employer's request for reconsideration will only be accepted if the employer did not have the opportunity to submit it previously.

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