A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Wednesday, November 9, 2016

Labor Cert Decisions on Rejections of Job Applicants and Minimum Requirements, etc.

Some recent decisions by the labor certification appeals board (BALCA) address various legal issues ranging from wage and signature discrepancies, screening and rejection of job applicants, and actual minimum requirements.   They are summarized below:

Labor certification denied when actual wage is higher than the wage posted:  The Board held that posting a wage lower than the actual wage mischaracterized the position such that the job was not clearly open to US workers. Here, the employer posted the wage as $8.00 per hour but, in fact, workers get $8.00 an hour for the first two months and then $8.25 for the remaining ten months of the year.   (Matter of Norman W. Fries, Inc., 10/28/16)

Labor Application and Recruitment Report had Different Signatories:   Different employer representatives can sign the labor application ETA Form 9089 and the recruiting report, according to the Board. This is not a reason for denial. (Matter of HTC Global Services, Inc., 10/28/16)

Employer May Reject Applicants Without An Interview:  Although an employer normally should interview all applicants that facially appear to have met the minimum job requirements.  When a job applicant clearly does not the skills or experience to perform certain complex duties of a job, the employer does not have a duty to interview the job applicant.  Here the job applicant does not have experience in "Term and UL GAAP, or in statutory or tax accounting, or in making presentations to senior level actuaries and business professionals."  The Board held that  expertise in these areas cannot be acquired by reasonable on-the-job training. (Matter of Genworth North America Corporation, 10/28/16) 

Employer's Rejection of Job Applicants Improper Without Support:   On the other hand, where an employer rejected 60 job applicants based solely on a review of the resume, BALCA finds that the employer did not meet its burden of proving that some of the applicants did not meet the minimum requirements or qualify for further consideration.  The employer in this case failed to articulate the reasons why four applicants did not meet the minimum requirements of the position. (Matter of HSBC Bank USA, N.A., 10/28/16)

Actual Minimum Requirements of Bachelor's Degree and 24-Month Experience Can be Substituted:  An Employer may accept any equally suitable combination of training and experience in lieu of a Bachelor’s degree and 24 months of experience, according to BALCA.    Here, the Employer demonstrated, through a credentials evaluation that the foreign worker met its alternative requirement of training and experience equivalent to a bachelor‟s degree in mechanical engineering and 24 months experience. The denial of labor certification was reversed.  (Matter of Intent Design, Ltd, 10/28/16)  

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