BALCA on Lawful Reasons for Rejecting U.S. Applicants in PERM Cases

The permanent labor certification process (also referred to as PERM) allows an employer to hire a foreign national to work permanently in the United States. Prior to filing a PERM application for a foreign worker with the U.S. Department of Labor (DOL), U.S. employers must conduct a cumbersome recruitment process to first attempt to hire a U.S. worker. Demonstrating that the recruitment process was correctly undertaken and failed to yield an able, willing and qualified U.S. worker is a required part of the PERM application. The regulations contain specific requirements for recruitment documentation that must be retained by the employer and submitted in response to a potential audit by DOL. One such document is a recruitment report providing lawful reasons for rejection of any U.S. applicants.

On May 26, 2015, the Board of Alien Labor Certification Appeals (BALCA), which is responsible for reviewing PERM denials, issued a decision in Matter of Presto Absorbent Products, Inc. 2012-PER-00775 (May 26, 2015) reversing a PERM denial for failure to provide sufficient reasons for rejecting eight U.S. applicants. In reversing the decision, BALCA noted that the relevant regulation “does not indicate a level of specificity beyond what the Employer provided.”

In Matter of Presto, DOL sent the Employer an Audit Notification Letter requesting, among other things, U.S. workers’ resumes sorted by the reasons for their rejection. After reviewing the employer’s response, DOL denied the case. As one of the reasons for denial, DOL stated that the submitted recruitment report made only a generalized statement that U.S. workers did not meet the employer’s minimum requirements. Furthermore, DOL alleged that the recruitment report did not contain the specific lawful job related reasons for rejection. The employer’s recruitment report stated that it received eight resumes in response to its recruitment, and the eight applicants lacked the experience requirement.  Additionally, the employer stated; “All applicants were reviewed to determine if they would be able and qualified to perform the duties of the position with a reasonable amount of on-the-job training. All applicants were determined not to have been able and qualified for the position even with a reasonable amount of on-the-job training.” DOL did not find this explanation sufficient to comply with the recruitment report requirements.

BALCA reversed DOL’s denial reasoning that the regulation does not indicate a level of specificity beyond what the employer in Matter of Presto provided. The employer’s report indicated that eight U.S. workers applied and were rejected due to a lack of experience required for the position. Lack of required experience is a lawful reason for rejecting applicants. Therefore, DOL’s denial was improper.

PERM is an exacting process in which employers bear the burden of proof. Failure to follow the PERM requirements closely may lead to denial, even after successful recruitment efforts have been completed. Therefore, we do not recommend proceeding with a PERM case without the benefit of experienced counsel.

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