BALCA: Employer not required to specify why it rejected US job applicants

2 Jun 15

UNITED STATES

In a written decision last week, the Board of Alien Labor Certification Appeals (BALCA) maintained that an employer is not required to detail why it rejected U.S. job applicants beyond stating that the candidates lacked the qualifications even with a reasonable amount of training.

The employer in the case petitioned for permanent labor certification (PERM) on behalf of a foreign national for the position of engineering manager. The employer was audited and asked to provide resumes of U.S. applicants and reasons why they were not hired for the position. The certifying officer of U.S. Citizenship and Immigration Services denied the PERM petition on the grounds that the employer made only a generalized statement that the U.S. workers did not meet the minimum job requirements.

Regulations require that an employer petitioning for PERM prepare a signed recruitment report describing steps it took to hire U.S. workers and the results of that search, including “lawful job related reasons for such rejections.” The employer’s recruitment report stated that it had received eight resumes from U.S. workers and that “All applicants were determined not to have been able and qualified for the position even with a reasonable amount of on-the-job training.”

On appeal, BALCA found that the employer’s explanation for rejection of the U.S. job applicants was sufficient.

“The regulation does not indicate a level of specificity beyond what the employer provided,” BALCA said in its decision. “The employer’s report indicated that eight U.S. workers applied and were rejected due to a lack of experience. Lack of experience is a lawful reason for rejecting applicants.”

The board reversed the officer’s decision and granted the PERM petition.

BAL Analysis: The ruling confirms that immigration regulations do not require an employer to provide specific details as to why it rejected U.S. candidates for a job to be filled by a foreign beneficiary of a labor certification petition.

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