On January 16, 2018, the Board of Alien Labor Certification Appeals (BALCA) reversed a denial of an Employer’s labor certification. After filing an Application for Permanent Employment Certification (PERM Application) to sponsor a foreign national for permanent employment in the U.S. for the position of “Mathematics Teacher,” the Certifying Officer (CO) denied the PERM Application finding the word “interested” for three candidates on its recruitment results chart was a generalized statement that does not reveal the specific lawful job-related reason for rejection. It was uncontested that the Employer offered multiple positions for the job opportunity.
Under 20 C.F.R. 656.1(a)(1), the CO may only certify a PERM Application if at the time of the application, there are not sufficient U.S. workers who are able, willing, qualified and available. The employer must certify that the job has been and is clearly open to any U.S. worker and the U.S. applicants were rejected for lawful job-related reasons. Focusing in this case on whether the Employer provided lawful job-related reasons for rejection, BALCA cited cases where the employer made it clear from the outset that multiple positions were involved. In such cases, where qualified applicants were hired in addition to the foreign national, the Board ordered a grant of certification. It then cited to 20 C.F.R. 656.17(g)(1), establishing that an employer may hire U.S. workers and still have the need for foreign labor certification. Considering the Employer’s recruitment report, BALCA found the Employer did not reject the three applicants’, and even if these applicants were hired there would still be a need to hire more applicants. Thus, by denoting “interested,” the Employer did not violate the regulations.