On September 2, 2008, in the Matter of Global Travel International Co., 2008-INA- 00028 (9/2/08), the Board of Alien Labor Certification Appeals (BALCA or the Board) affirmed the denial of a labor certification application where the employer rejected workers for being overqualified. In addition, the Board found that the employer did not make reasonable efforts to contact U.S. workers. On July 6, 2004, Global Travel Intl Corp., d/b/a Innova Travel ("Employer"), filed a labor certification application on behalf of, Mr. Hsiu-Ling Wu, for the position of Accountant. The Employer’s recruitment results indicated that nineteen resumes were received. Four candidates did not have the required degree and/or experience; two candidates were listed twice, one of whom was no longer interested and the other was not interested in full-time work. Several other candidates were either unwilling to take the job or did not respond to contacts by the Employer; one had a salary requirement which was too high; another candidate did not want to work full-time; and two candidates were found to be overqualified.
On August 3, 2007, the Certifying Officer issued a Notice of Findings to deny the labor certification application on the basis that the Employer failed to make sufficient attempts to contact interested candidates and rejected U.S. workers for other than job-related reasons. Specifically, two U.S. workers were rejected for being overqualified for the position, and one U.S. worker was rejected despite the fact that her resume indicated that she met many of the minimum requirements listed on the labor certification application.
The Employer rebutted by arguing that it did contact U.S. applicants, and its rejection was consistent with normal business practices of the industry and its own normal practice. In its Final Determination, the Certifying Officer noted that the Employer’s recruitment effort was reduced to an undocumented series of telephone calls, noting that placing unanswered telephone calls without making additional attempts to contact U.S. applicants did not constitute good faith recruitment. The Certifying Officer also found that the Employer failed to provide lawful job-related reasons for rejecting three U.S. applicants, finding that the Employer’s reasons were not consistent with labor certification procedures.
The Employer sought review of the denial by BALCA. The Board found that the Employer did not provide documentation to prove that it made reasonable efforts to contact U.S. workers. The Board noted that an employer who does no more than make unanswered phonecalls 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. The Board noted that in such cases, the employer should follow up with a letter, which may be submitted by certified mail, return receipt requested.
The Board also found that the Employer unlawfully rejected applicants solely because they were unqualified. The Board noted that in its previous decisions, it has repeatedly ruled that an employer who is recruiting pursuant to a labor certification application may not reject an applicant solely because that applicant is overqualified.
Based on the foregoing, the Board found that the Certifying Officer properly denied the labor certification application and affirmed the decision.