BALCA Denies PERM for Failure to Properly Consider US Applicant

BALCA upheld the denial of a Form ETA 9089 PERM labor certification application where the employer failed to properly inquire into the qualifications of an applicant whose resume raised a reasonable prospect of the applicant’s meeting the minimum requirements for the position.  Matter of CEO Ally, Inc. 5/12/2016.

Employers filing PERM applications must certify that any US worker applicants were rejected for lawful job-related reasons.  If a US worker does not have the precise education, experience, training or other credentials as required by the employer, then if the US worker has a suitable combination of education, training or experience, and is able to reasonably perform the job duties (or could be trained within a reasonable period of time), the PERM application will fail.  The employer is not required to hire the US worker applicant but cannot sponsor the foreign national based on this round of recruitment.  The employer would have to redo the recruitment to test the US labor market.

In this case, the employer stated that it had rejected one candidate based on the face of the resume without a further review of her credentials. The certifying officer (CO) found that the resume showed a broad range of experience, education and training, raising the reasonable possibility that the candidate met the actual requirements on the PERM application and obligating the employer to investigate her background further.  The candidate had the requisite master’s degree and over 20 years of experience (noted on her resume) in a related field but not the 48 months of experience in the area as required on the PERM application.  The employer rejected the candidate based on her resume and the fact that it did not show the 48 months of requisite experience.

BALCA held that the CO was correct in its conclusion that the employer had an obligation to investigate the candidate’s background further to ascertain if she could “acquire the skills necessary to perform the job duties involved in the occupation during a reasonable period of on-the-job training.”  §656.24(b)(2) (i).