Follow-through with Candidates is Essential to Labor Certification

From: USADNEWS Volume VII, Issue 7 October 2013

With so much focus placed on the advertising for labor certification cases, it’s easy to forget that the recruitment process does not end there. Just as important is the follow-through with candidates that have applied for the open position. In the Matter of W. Alex Choi, CPA, PC, the Certifying Officer (CO) denied the employer’s application because they did not demonstrate good faith in considering U.S. applicants for the job.

The employer was selected for supervised recruitment and submitted a proposed advertisement text for approval. The Department of Labor (DOL) approved the employer’s ad text, which included fluency in Korean as part of the job description. The CO forwarded 44 resumes to the employer, all of which the employer rejected either because they did not meet the minimum qualifications or because the employer was unable to contact them.

The CO denied the application, claiming that the employer violated section 20 C.F.R. § 656.10(c )(9) of the regulations, which states that U.S. applicants can only be rejected for lawful job-related reasons. The CO claimed that the employer did not use “good faith efforts” to contact qualified candidates, thereby rejecting them without a lawful reason. The CO further stated that the employer rejected U.S. applicants for failing to meet criteria that were not listed on the ETA Form 9089, specifically requiring applicants to have fluency in Korean. The employer argued that even though fluency in Korean was not a requirement listed on the ETA Form 9089, it was included in the job description that was approved by the DOL.

Setting aside the Korean language issue, the CO forwarded the case to the Board of Alien Labor Certification Appeals (BALCA) on the basis of the first reason for denial. The question of whether the employer exercised good faith in attempting to contact applicants is the only issue BALCA addressed. The employer reported that it had rejected qualified applicants that it was unable to reach by email or certified mail. The CO pointed out that the employer did not make every effort to contact these candidates. In particular, the employer sent interview invitations by certified mail to four candidates. The tracking information showed that the candidates did not receive these invitations until four to seven weeks after the interviews were scheduled to take place.

BALCA found that if the employer had been tracking the mail to ensure proper delivery, it would have realized that the invitations were not being delivered on time. The employer would then have used a different means to contact the applicants, such as the phone numbers or email addresses they provided on their resumes. Because the employer made no such effort to contact the candidates, BALCA determined that it did not act in good faith and upheld the denial.