< Back to Main News page

BALCA concludes that evidence of Employer’s one minute or less telephone contact with applicants is inadequate to show good faith effort to recruit, upholding CO's denial of pre-PERM application

Initially, BALCA consider the Employer’s argument that the two applicants at issue were not qualified based on their resumes. The Board has held where a U.S. applicant's resume indicates that he or she meets the broad range of experience, education, and training required for the job, thus raising the reasonable prospect that he or she meets all of the Employer's stated actual requirements, the Employer has a duty to make a further inquiry, by interview or other means, into whether the applicant meets all of the actual requirements. Gorchev & Gorchev Graphic Design, 1989-INA-118 (Nov. 29, 1990) (en banc). In the instant case, Applicant 1 had over seven years of experience as a “Head Trainer, Fill-In Manager, Waitress,” and six months of experience as an “Assistant Manager.” (AF 93). Applicant 2 had 11 months of experience as the owner of a “sub” company, almost four years of experience as a “Kitchen Manager” for a café, about 14 years of experience as the owner of a corporation consisting of three restaurants, and almost 17 years of experience as the store manager of a K-Mart. BALCA find that these resumes showed sufficiently reasonable prospects for qualification for the job, such that they could not be rejected solely on the basis of their resumes.

Next, BALCA consider the Employer’s argument that it engaged in good faith efforts to contact the applicants. In M.N. Auto Electric Corp., 2000-INA-165 (Aug. 8, 2001) (en banc), the Board described what constitutes adequate documentation of good faith efforts to contact and recruit U.S. workers: What constitutes a reasonable effort to contact a qualified U.S. applicant depends on the particular facts of the case under consideration. Where an employer establishes timely, actual contact, ipso facto, a reasonable effort is proved. HRT Clinical Laboratory,1997-INA-362 (March 10, 1998). In some circumstances it requires more than a single type of attempted contact. Yaron Development Co., Inc., 1989-INA-178 (Apr. 19, 1991) (en banc). An employer who does no more than make unanswered phone calls or leave a message on an answering machine has not made a reasonable effort to contact the U.S. worker, where the addresses were available for applicants; in such a case the employer should follow up with a letter – which may be certified mail, return receipt requested. Any Phototype, Inc., 1990-INA-63 (May 22, 1991); Gambino’s Restaurant, 1990-INA-320 (Sept. 17, 1991). M.N. Auto Electric Corp., supra, USDOL/OALJ Reporter at 10-11.

The Employer’s argument in the instant case is inconsistent and lacks credibility. The Employer’s recruitment report clearly states that six attempts were made to contact the two applicants at issue, and that neither was actually contacted. The initial rebuttal similarly states that six unsuccessful attempts were made to call the applicants on a cell phone. As the CO found, the phone records submitted as a supplement to the rebuttal show only a single call to each applicant for a duration of one minute or less.3 Yet on appeal, the Employer’s attorney asserts that the Employer actually spoke to the applicants 3 BALCA note that the phone records show several calls with other parties lasting much longer than one minute. (AF 50).

on the date that the phone records show a call, and that it was in telephone interviews that it was determined that the applicants were not qualified and that they stated that they were not interested in the job.

In the instant case, the CO reasonably requested relevant documentation to establish that the Employer actually existed as a viable business. Although the Employer’s rebuttal cover letter stated that it was providing a copy of its 2005 business tax return, the CO did not find such documentation in the rebuttal submission.

In the Employer’s appellate brief, the Employer’s attorney asserts that his office provided the CO with the 2005 tax returns, and W-2s, a list of employees, and a copy of the Yellow Page listing for the Employer. However, there is no indication in the cover letter to the rebuttal that the Employer was submitting anything other than the 2005 tax return on the employer-viability issue. If the Employer had provided the Yellow Page listing, the CO would have had no reason to observe that the NOF mailed to the Employer had been returned as undeliverable. Moreover, as illustrated by the appellate brief’s argument that the Employer actually spoke to the applicants (which is directly contradictory to the Employer’s own statements), it appears that the Employer’s attorney did not have a clear understanding of the facts of this case when he filed his appellate brief.

BALCA find, based on the record before us, that the Employer did not submit documentation regarding its viability as a business until the time of its request for review.4 Thus, BALCA find that the Employer failed to provide, at the time of its rebuttal, directly relevant and reasonably obtainable documentation specifically requested by the CO to prove the existence of an on-going business and job opening. See Carlos Uy III, 1997-INA-304 (Mar. 3, 1999) (en banc) (“Under the regulatory scheme of 20 C.F.R. [Part 656], rebuttal following the NOF is the employer's last chance to make its case. Thus, it is the employer's burden at that point to perfect a record that is sufficient to establish that a certification should be issued.”) 4 The Board’s scope of review is limited to the record upon which the denial of labor certification was made, the request for review, and any statement of position or legal briefs. 20 C.F.R. §§ 656.26(b)(4) and 656.27(c). Thus, evidence first submitted with the request for review is not considered by the Board. Import S.H.K. Enterprises, Inc., 1988-INA-52 (Feb. 21, 1989) (en banc).

ORDER

Based on the foregoing, the Final Determination of the Certifying Officer denying labor certification is hereby AFFIRMED.