In its latest decision, Matter of Select National Inc. (Sept. 19, 2012), the Board of Alien Labor Certification Appeals (BALCA) affirmed the denial of a labor certification by holding that even if a potential U.S. worker applicant did not appear to meet the required amount of experience, the employer had a duty to investigate further where the resume demonstrated a "broad range of experience, education and training." (For a general description of the PERM process, please see our recent post).
Select National Inc., follows two decisions issued earlier in the year, Matter of Goldman Sachs & Co. (June 8, 2012), and Matter of Kennametal, Inc. (March 27, 2012), both affirming denials based on employer's duty to investigate further.
In Select National Inc., BALCA stated as follows: "We agree with the Employer that (the U.S. applicant) does not appear to meet the minimum requirement of three years' experience in the job offered. However, even if the applicant did not have the exact experience required, the Employer was under a duty to investigate the applicant further."
In all three cases, BALCA acknowledged that the U.S. applicants did not meet the requirements as specified in the recruitment ads and the PERM application, whether it was the required degree or the specific skill set. However, BALCA reasoned that because all three employers had included a variation of the "magic" Kellogg language ("any suitable combination of education, training or experience is acceptable") in the PERM applications and/or the recruitment ads, the employer had the duty to further investigate the credentials of the U.S. applicants. Furthermore in Kennametal, BALCA reasoned that the employer failed to consider whether some of the applicants could be qualified "after a reasonable period of on-the-job training."
These BALCA cases emphasize both the importance of appropriately drafting the recruitment ads and the PERM application while considering any business necessity for the specified education and experience being sought and the importance of properly conducting and documenting the recruitment process in accordance with the regulations.
In Matter of JP Morgan Chase & Co. (July 16, 2012), BALCA vacated the denial of certification where the Certifying Officer (CO) had determined that the U.S. applicants had suitable combination of education, experience and training to necessitate interviews. BALCA held that where the employer showed business necessity of the skills being sought and the infeasibility of on-the-job training for the said skills, U.S. applicants may be rejected without further investigation in the absence of CO's finding that the requirements are unduly restrictive for the position.
Additionally, the decisions demonstrate the inherent problem with the PERM process. As reiterated by BALCA in all three cases, the goal of the Immigration and Nationality Act is to ensure that foreign workers do not obtain permanent employment in the United States where there are U.S. workers who are able, willing, qualified, and available to perform the work. While the goal, as stated, may be meaningful in the context of the current high unemployment rate in the U.S., in practice, the PERM process ignores the real-world interest of U.S. employers to find the best-qualified, not minimally qualified workers. Ultimately, businesses create greater economic growth with highly competent, not minimally qualified employees.