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BALCA upholds denial of a pre-PERM labor certification application for a rug repairer, rejecting Employer’s contention that undisclosed requirements were implied in the job description. Also finds that delayed interview process shows less than a good faith effort to recruit BALCA finds that an employer who seeks to hire an alien for a job opening must demonstrate that it has first made a good faith effort to fill the position with a U.S. worker. H.C. LaMarche Ent., Inc., 1987-INA-607 (Oct. 27, 1988). Actions which indicate a lack of good faith recruitment are grounds for denial. 20 C.F.R. §§656.1, 656.2(b). Labor certification is properly denied where the employer rejects a U.S. worker who meets the stated minimum requirements for the job. Exxon Chemical Company, 1987-INA-615 (July 18, 1988) (en banc). An employer cannot lawfully reject an applicant who meets the minimum requirements but fails to meet an undisclosed requirement. Jeffrey Sandler, M.D., 1989- INA-316 (Feb. 11, 1991)(en banc). It is the employer who has the burden of production and persuasion on the issue of the lawful rejection of U.S. workers. Cathay Carpet Mill, Inc., 1987-INA-161 (Dec. 7, 1988)(en banc). The Employer provided a number of justifications for not hiring Applicant #1 in its request for review and appellate brief. These attempts to raise new reasons for the rejection of the U.S. applicant will not be considered because the Board's scope of review is limited to the record upon which the denial of labor certification was made, and the Board does not consider additional evidence submitted in conjunction with a request for review. Import S.H.K. Enterprises, Inc., 1988-INA-52 (Feb. 21, 1989) (en banc); 20 C.F.R. §656.27(c); see also 20 C.F.R. §656.24(b)(4). Rather, rebuttal following the NOF is an employer's last chance to make its case. Carlos Uy III, 1997-INA-304 (Mar. 3, 1999) (en banc). Turning to that rebuttal and with regard to Applicant #1, her resume showed that she had a high school degree, the only requirement for this position. (AF 100). The Employer conceded that the applicant was interviewed and claimed that she was told to return for observation of the work that the position required, arguing, however, that the applicant was not qualified for “our training,” and in effect, that the applicant chose not to pursue the opportunity when contacted on October 28, 2004.As the CO points out, the Employer’s delay and interviewing process demonstrated less than a good faith effort to follow-up with this qualified U.S. applicant. The initial interview was on September 8, 2004, at which time this applicant indicated her willingness to take the job. The Employer waited until October 28, 2004 to follow-up, despite the fact that he had returned from his trip abroad on October 15, 2004 and knew that this applicant had telephoned his office on several occasions in follow-up. In Leonardo’s, 1987-INA-581 (Nov. 20, 1987) (en banc), the Board found that the employer had untimely contacted U.S. applicants where the employer left the country for a month and failed to delegate recruitment responsibilities in the interim. Not only was this a similar circumstance in the instant case, but upon his return, the Employer’s President waited an additional thirteen days to follow-up with a qualified U.S. applicant. The Employer has failed to prove that there are not sufficient U.S. workers who are "able, willing, qualified and available" to perform the work. 20 C.F.R. § 656.1; H.C. LaMarche Ent., Inc., supra. Accordingly, we find that labor certification was properly denied. Back to Top |
